PART II, ITEM 6(A), EXHIBIT 10-B-86
KEYBANK REVOLVING LINE OF CREDIT AGREEMENT
This REVOLVING LINE OF CREDIT AGREEMENT (the "Loan Agreement" or
"Agreement") is made as of the 20th day of September, 2000, by and between GREEN
MOUNTAIN POWER CORPORATION, a Vermont corporation, with its principal place of
business at 163 Acorn Lane, Colchester, VT 05446 (the "Borrower"), and KEYBANK
NATIONAL ASSOCIATION, a national banking association having a place of business
at 149 Bank Street, P.O. Box 949, Burlington, Vermont 05402-0949 (the "Bank").
WHEREAS, the Borrower has requested, and the Bank has agreed to extend, a
revolving line of credit in the principal amount of Fifteen Million Dollars
($15,000,000) (the "Loan") for short term borrowings, subject to the terms and
conditions set forth in this Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrower and the Bank hereby agree as follows:
1. DEFINITIONS.
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1.1 CERTAIN DEFINITIONS. Each of the capitalized terms used in this
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Agreement, unless otherwise expressly defined in this Agreement, shall have the
respective meanings set forth in this Section 1.1.
"Advance" means any sum of money loaned by the Bank to the Borrower under
the Line of Credit. Advances are designated as Prime Rate Advances or LIBOR
Advances.
"Borrowing Availability" means, from time to time, the excess of the
maximum amount of the Line of Credit ($15,000,000) minus the then outstanding
balance of all Advances under the Line of Credit.
"Certificate of Deposit" means the certificate of deposit in the original
principal amount of $15,150,000 issued by KeyBank National Association, which
certificate of deposit is held by and pledged to the Bank as security for the
Obligations.
"Compliance Certificate" means a compliance certificate in substantially
the form of Exhibit 1.1 hereto, with appropriate insertions, signed by the
President or chief financial officer of the Borrower, showing the calculations
necessary to determine compliance with this Agreement and stating that no Event
of Default exists, or if any default exists, describing the nature thereof and
any action the Borrower is taking or proposes to take with respect thereto.
"Default Rate" means after maturity (whether by acceleration or otherwise),
the outstanding principal under the Line of Credit and the unpaid interest and
fees thereon shall bear interest at a rate per annum equal to the greater of
three percent (3%) in excess of the highest applicable interest rate provided
for herein, or sixteen percent (16%).
"EuroBusiness Day" means any Business Day on which commercial banks in
London, England, Burlington, Vermont and New York, New York are open for
domestic and international business (including dealings in dollar deposits).
"LIBOR Rate" means the rate per annum calculated by the Bank in good faith,
which Bank determines with reference to the rate per annum (rounded upwards to
the next higher whole multiple of 1/16% if such rate is not such a multiple) at
which deposits in United States dollars are offered by prime banks in the London
interbank eurodollar market on the day such Advance is requested in an amount
and with a maturity comparable to the amount and maturity of such Advance.
"LIBOR Advance" means, at any time, any Advance which bears interest at
such time based on the LIBOR Rate plus the Margin.
"LIBOR Interest Period" means the period commencing on the date an Advance
bearing interest at the LIBOR Rate is made, continued, or converted and ending
thirty, sixty, ninety, or 180 days thereafter, provided, however, that:
(i) any such LIBOR Interest Period which would otherwise end on a day
which is not a EuroBusiness Day shall be extended to the next succeeding
EuroBusiness Day unless such EuroBusiness Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding EuroBusiness
Day; and
(ii) any such LIBOR Interest Period which begins on the last
EuroBusiness 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 EuroBusiness Day of a calendar month; and
(iii) no LIBOR Interest Period shall be elected which would expire
beyond the Final Maturity Date.
"LIBOR Reserve Requirements" means, for any Advance bearing interest at the
LIBOR Rate, the maximum reserves (whether basic, supplemental, marginal,
emergency, or otherwise) prescribed by the Board of Governors of the Federal
Reserve System, having a term equal to the term of such Advance.
"Loan Documents" means this Agreement, the Note, the Pledge Agreement, and
the other documents executed in connection herewith, and any letter of credit
and reimbursement agreement, and all security agreements, mortgages,
assignments, instruments, and guaranties heretofore or hereafter executed and
delivered to the Bank under or in connection with the Obligations, or any future
additional documents executed hereunder or thereunder, as such agreements may be
amended or supplemented.
"Margin" means 250 basis points (2.5%).
"Obligations" shall mean, without duplication, the obligation of Borrower
to pay to the Bank (i) any and all sums due the Bank under this Agreement, the
Note or otherwise under the terms of the Loan Documents, (ii) any and all sums,
whether principal, interest, costs or fees, due the Bank under or with respect
to this Agreement, and the other Loan Documents, and any fees, costs,
indemnities, and expenses, whether direct or indirect, now existing or hereafter
arising, and (iii) any and all indebtedness, fees, costs, indemnities, and
expenses, whether direct or indirect, absolute or contingent, now existing, or
hereafter arising.
"Plan" means an employee benefit retirement plan, as defined by the
Employee Retirement Income Security Act of 1974, as amended ("ERISA").
"Pledge Agreement" means the pledge agreement defined in Section 4 hereof.
"Prime Rate" means that interest rate established by KeyBank National
Association as KeyBank's Prime Rate, whether or not such rate is publicly
announced. The Prime Rate may not necessarily be the lowest interest rate
charged by KeyBank for commercial or other extensions of credit.
"Prime Rate Advance" means, at any time, any Advance which bears interest
at a floating rate equal to the Prime Rate per annum.
1.2 ACCOUNTING TERMS. All Accounting terms not specifically defined
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herein shall be construed in accordance with Generally Accepted Accounting
Principles ("GAAP") consistent with that applied in the preparation of the
Borrower's financial statements referred to in Section 5.4, and all financial
data submitted pursuant to this Agreement shall be prepared in accordance with
such principles, except interim financial data may be subject to year-end
adjustments.
2. THE LINE OF CREDIT.
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2.1 AMOUNT. Upon the terms and subject to the conditions of this
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Agreement, the Bank shall establish a Line of Credit in favor of the Borrower in
the maximum principal amount of Fifteen Million Dollars ($15,000,000) (the "Line
of Credit").
2.2 TERM; MATURITY DATE. The Line of Credit shall commence on the
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date of this Agreement and expire on September __, 2001 [364 DAYS FROM
COMMENCEMENT DATE] (the "Final Maturity Date") unless extended by a written
mutual agreement. The entire unpaid principal sum disbursed and outstanding,
together with any interest thereon remaining unpaid and any other sums due the
Bank in connection with the Line of Credit, shall be due and payable in full on
the Final Maturity Date.
2.3 INTEREST. The Borrower shall pay interest to the Bank on the
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outstanding and unpaid principal amount of the Advances at (i) a fluctuating
interest rate per annum equal to the Bank's Prime Rate in effect from time to
time, and each change in such interest rate shall take effect simultaneously
with the corresponding change in such Prime Rate, or (ii) rates quoted by the
Bank to the Borrower at the LIBOR Rate plus the Margin, for fixed LIBOR Interest
Periods, at which the Bank is willing to make LIBOR Advances to the Borrower in
amounts and for the interest periods requested by the Borrower. The arrangement
relative to the LIBOR Advances is not a commitment to lend, and the Borrower
acknowledges that from time to time the Bank may decline to quote rates for
LIBOR Advances on some or all maturities (as applicable). Interest on Prime
Rate Advances shall be calculated on the basis of actual days elapsed in a
365/366 day year including holidays and days on which the Bank is not open for
the conduct of business. Interest on LIBOR Advances shall be calculated on the
basis of a 360 day year of twelve 30-day months.
2.4 LINE OF CREDIT NOTE. The repayment terms applicable to Advances
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are set forth in a promissory note, substantially in the form attached as
Exhibit 2.4 (the "Note" or "Line of Credit Note"). Interest shall accrue on
Advances on the Note at a rate determined in accordance with this Agreement.
The Bank is hereby authorized by the Borrower to endorse on any schedule
attached to the Note the amount of each Advance and of each payment of principal
received by the Bank on account of the Line of Credit or on any other schedule
or record of the Bank, which endorsement shall, in the absence or manifest
error, be prima facie evidence as to the outstanding balance of the Advances
under the Line of Credit made by the Bank; provided, however, that the failure
to make such notation with respect to any Advance or payment shall not limit or
otherwise affect the Obligations of the Borrower under this Agreement or the
Note.
2.5 PROMISES TO PAY.
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A. The Borrower promises to pay to the Bank: (i) the principal amount
of all Advances under the Line of Credit; (ii) interest on Advances computed as
provided herein and in the Line of Credit Note; (iii) any and all other costs,
expenses and charges provided herein and in the other Loan Documents; and (iv)
all taxes (exclusive of any taxes measured or based on the profits or income of
the Bank), charges and expenses of every kind or description (except as
specifically excluded) including reasonable attorneys' fees and expenses of
litigation, reasonably incurred or expended by the Bank in connection with or in
any way related to the Bank's relationship with the Borrower, whether hereunder
or otherwise, including without limitation those incurred or expended in
connection with the preparation of this Agreement or any amendment hereof, the
collection of the Obligations, and the protection or enforcement of the Bank's
rights hereunder. All payments due under the Loan Documents shall be made in
lawful currency of the United States of America in immediately available funds.
B. The Borrower authorizes the Bank to charge the interest, charges,
taxes, and expenses provided for in this Agreement to the Loan Account, or to
any other deposit account maintained by the Borrower with the Bank.
2.6 LINE OF CREDIT FEE. As compensation for the establishment of
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the Line of Credit, the Borrower shall pay to the Bank a commitment fee of
Seventy Five Thousand Dollars ($75,000).
3. ADVANCES UNDER THE LINE OF CREDIT.
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3.1 NOTICE AND MANNER OF BORROWING.
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A. General. The Borrower, subject to the Borrowing Availability and
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the notice provisions of this Section 3, may request Advances. Each Advance
requested by Borrower under the Line of Credit must be a minimum amount of
$10,000 or any larger amount which is an integral multiple of $1,000; provided,
however, that the minimum amount of LIBOR Advances shall be One Hundred Thousand
Dollars ($100,000) and integral multiples of $100,000. Principal advances will
be made by crediting the proceeds thereof to the demand deposit account of the
Borrower maintained with the Bank (the "Loan Account"). Subject to Borrowing
Availability, the Bank may make Advances to the credit of the Loan Account to
cover any overdrafts of the Borrower in the Loan Account. Any overdraft shall
be deemed a request by the Borrower for an Advance. The Borrower agrees that no
more than two LIBOR Advances shall be outstanding at any time.
B. Prime Rate Advances. Any request by the Borrower to borrow a Prime
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Rate Advance must be received by the Bank no later than 11:00 a.m. (Burlington,
Vermont time) on the Business Day of the requested Prime Rate Advance.
C. LIBOR Advances. Borrower may elect to have one or more Advances bear
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interest at a fixed rate of interest equal to the LIBOR Rate plus the Margin for
the duration of a LIBOR Interest Period; provided that no such LIBOR Advance
shall be in an amount of less than $100,000, and integral multiples of $100,000,
and provided further that no LIBOR Interest Period may extend beyond the
maturity date of the Note. Any request to borrow a LIBOR Advance must be
received by the Bank no later than 10:00 a.m. (Burlington, Vermont time) at
least two EuroBusiness Days before the day of the requested LIBOR Advance. Upon
expiration of the applicable LIBOR Interest Period, Borrower may, upon notice to
the Bank not later than 10:00 a.m. (Burlington, Vermont time) on the second
EuroBusiness Day prior to the expiration of the applicable LIBOR Interest
Period, elect to continue the Advance at a new LIBOR Rate as quoted by the Bank
(plus the Margin) and for a new LIBOR Interest Period, or have the Advance bear
interest thereafter at the Prime Rate. If Borrower fails to make an election,
the Advance will bear interest at the Prime Rate. During any LIBOR Interest
Period, Borrower shall continue to make monthly interest payments as required by
the Note.
If, because of the introduction of or any change in, or because of any
judicial, administrative, or other governmental interpretation of, any law or
regulation, there shall be any increase in the cost to the Bank of making,
funding, maintaining, or allocating capital to any advance bearing interest at
the LIBOR Rate, including a change in LIBOR Reserve Requirements, then Borrower
shall, from time to time upon demand by the Bank, pay to the Bank additional
amounts sufficient to compensate the Bank for such increased cost.
If, because of the introduction of or any change in, or because of any
judicial, administrative, or other governmental interpretation of, any law or
regulation, it becomes unlawful for the Bank to make, fund, or maintain any
Advance at the LIBOR Rate, then the Bank's obligation to make, fund, or maintain
any such Advance shall terminate and each affected outstanding Advance shall be
converted to the Prime Rate on the earlier of the termination date for each
LIBOR Interest Period or the date the making, funding, or maintaining of each
such Advance becomes unlawful.
D. Telephone Notice. If any notice is given by telephone, it shall
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be immediately confirmed in writing. The Bank shall have no obligation to
inquire into the circumstances, use, purpose, disposition or application of
funds advanced pursuant to a telephonic advance request and shall have no
liability relating thereto. A form of written confirmation is attached. The
Bank may, in its sole discretion, terminate telephonic advance request authority
at any time and require written requests.
E. Recording of Advances. The Borrower acknowledges that the actual
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recording in the Bank's records of any Advance under this Agreement and
interest, fees and other amounts due therefor, recording of credits or debits in
the Loan Account, and payments made under this Agreement and the Notes, shall
constitute, except for manifest error, prima facie evidence of the Borrower's
indebtedness and liability from time to time as agreed to under this Agreement,
provided that the failure of the Bank to record the same shall not affect the
obligation of the Borrower to pay or repay such indebtedness and liability.
F. Reimbursement of Costs. If Borrower repays any Advance bearing
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interest at the LIBOR Rate prior to the end of the applicable LIBOR Interest
Period, including without limitation a prepayment upon conversion of the
interest rate on Advances to the Prime Rate under paragraph C above, Borrower
shall reimburse the Bank on demand for any resulting loss, lost income or
profit, or expense incurred by the Bank, including without limitation any loss
or expense incurred in obtaining, liquidating or reemploying deposits from third
parties. A statement as to the amount of such loss, lost income or profit, or
expense, prepared in good faith and in reasonable detail by the Bank and
submitted by the Bank to the Borrower, shall be conclusive and binding for all
purposes absent manifest error in computation. Calculation of all amounts
payable to the Bank under this paragraph shall be made as though the Bank shall
have actually funded the relevant advance through deposits or other funds
acquired from third parties for such purpose; provided, however, that the Bank
may fund any Advance bearing interest at the LIBOR Rate in any manner it sees
fit and the foregoing assumption shall be utilized only for purposes of
calculation of amounts payable under this paragraph. The Bank will be entitled
to receive the reimbursement provided for herein regardless of whether the
prepayment is voluntary or involuntary (including demand or acceleration of the
Note upon an Event of Default).
<PAGE>
3.2 CONDITIONS TO ADVANCES.
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A. The obligation of the Bank to make each Advance is subject to the
conditions precedent that on the date of such Advance, before and after giving
effect thereto and to the application of the proceeds therefrom, the following
statements shall be true in all material respects and, the Borrower's making of
a request for an Advance shall be deemed to be a representation and warranty by
the Borrower to that effect:
(i) Representations and Warranties. The representations and warranties
contained in this Agreement and other Loan Documents are correct in all material
respects as though made on and as of such date (except such thereof as
specifically refer to an earlier date), with the same effect as if such
representations and warranties were made on and as of the date of such Advance.
(ii) No Default. No event has occurred and is continuing, or would
result from such Advance or from the application of the proceeds therefrom,
which constitutes an Event of Default or an event which, with the expiration of
time or the giving of notice, or both, would constitute an Event of Default.
(iii) Legality as to Borrower. It shall not be unlawful for the
Borrower to perform any of its covenants under any of the Loan Documents, which
could reasonably be expected to have a material adverse effect on Borrower's
ability to pay the Obligations.
(iv) No Lien. No mortgage, lien, or security interest has been granted
with respect to the Borrower's Certificate of Deposit, except the pledge, lien,
and security interest granted to the Bank.
(v) No Adverse Change. No material adverse change shall have occurred
in the financial condition of the Borrower, in the business operations of the
Borrower, from the date of the most recent financial statements delivered to the
Bank.
B. The obligation of the Bank to make each Advance is subject to the
further condition precedent that on the date of such Advance, and after giving
effect thereto, the Advance is within the Borrowing Availability. Receipt by
the Bank of such a notice from Borrower requesting an Advance, and each draft or
check written by Borrower creating an overdraft in the Loan Account, shall be
deemed to be a representation by the Borrower to this effect.
C. The Bank shall have no obligation to make Advances under the Line of
Credit and, at its option, may declare the Line of Credit terminated (without
the necessity of notice to the Borrower) upon the occurrence of 1) any Event of
Default (as defined herein) or 2) any change in governmental regulations or
monetary policies affecting the extension of credit similar to the Line of
Credit and which makes it illegal for the Bank to provide credit hereunder,
whether occurring before or after acceptance of this Agreement.
3.3 RECORDING OF ADVANCES.
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A. The Bank shall record Advances under the Line of Credit and all
payments made by the Borrower on account of indebtedness evidenced by the Note
which are finally paid to the Bank at its office in cash or solvent credits, and
may record, in accordance with customary accounting practice, other debits and
credits, including all charges and expenses properly chargeable to the Borrower
and any other obligation.
B. The Bank may charge the Borrower's deposit accounts maintained with
the Bank for interest payments due under the Note. The Bank's records shall
reflect the amount of the Borrower's indebtedness to the Bank from time to time
by reason of Advances and other appropriate charges hereunder. At least once
each month, the Bank shall render a statement of account showing as of the date
of such statement the balance of the Loan Account which shall be considered
correct and accepted by the Borrower and conclusively binding upon it, unless
within 180 days of such date, notice to the contrary is received by the Bank
from the Borrower or unless such report contains a material manifest error.
C. The Borrower understands that the Bank will use the Borrowing
Availability as the maximum ceiling on Advances. The Borrower agrees that if at
any time the amount outstanding under the Line of Credit exceeds the Borrowing
Availability, the Borrower shall immediately repay so much of the outstanding
balance of Advances as is required to bring the total principal amount
outstanding to no more than the Borrowing Availability and if such payments are
not immediately made, an Event of Default shall exist.
4. PLEDGE OF CERTIFICATE OF DEPOSIT. As a condition to the Bank entering
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into this Agreement, and making Advances to the Borrower, the Borrower shall
pledge all right title and interest in and to the Certificate of Deposit to the
Bank, pursuant to a Pledge Agreement dated or on about the date hereof, which
agreement shall be in substantially the form attached as Exhibit 4 (the "Pledge
Agreement").
5. REPRESENTATIONS AND WARRANTIES. To induce the Bank to establish the
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Line of Credit and make Advances, the Borrower hereby represents and warrants
to the Bank that:
5.1 EXISTENCE AND AUTHORITY OF BORROWER. The Borrower is a
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corporation, duly organized and validly existing under the laws of the State of
Vermont. It is qualified to do business and is in good standing in the State of
Vermont with full power and authority to consummate the transactions
contemplated hereby and has filed all documents and registrations, including
tradename registrations, required by the State of Vermont except where the
failure to do so would not have a material adverse effect on the Borrower. It
is duly qualified as a foreign corporation and is in good standing under the
laws of each jurisdiction in which the failure to do so would have a material
adverse effect on the Borrower. The execution, delivery, and performance of the
Loan Documents by the Borrower and the consummation by the Borrower of the
transactions contemplated hereby (i) have been duly authorized by all necessary
corporate or partnership action, and (ii) do not conflict with or result in any
breach or contravention of any provision of law, statute, rule or regulation to
which the Borrower is subject or any judgment, order, writ, injunction, license
or permit applicable to the Borrower.
5.2 ENFORCEABILITY. The execution and delivery of this Loan Agreement
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and the other Loan Documents to which the Borrower is or is to become a party
will result in valid and legally binding obligations of the Borrower enforceable
against each of them in accordance with their respective terms and provisions,
except as enforceability may be limited by bankruptcy, insolvency, moratorium or
other laws affecting the enforceability of creditors' rights and by general
principles of equity, which may limit the enforceability of the Borrower's 's
obligations.
5.3 GOVERNMENTAL APPROVALS. The execution, delivery and performance by
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the Borrower of this Loan Agreement, the Pledge Agreement and the other Loan
Documents and the consummation by the Borrower of the transactions contemplated
hereby and thereby do not require the approval or consent of, or filing with,
any governmental agency or authority, or to the extent such approval of filing
is required, such approvals have been obtained and filings made and all
applicable appeal periods have expired (without any such appeal having been
filed).
5.4 FINANCIAL CONDITION. The balance sheets, statements of income and
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retained earnings, and other financial statements and financial data of the
Borrower (if any) furnished to the Bank to induce the Bank to enter into this
Loan Agreement are complete and correct and fairly present the financial
condition of the Borrower, and its subsidiaries, if any, as of the dates thereof
and the results of the operations of the Borrower and its subsidiaries, if any,
for the periods covered by such statements, all in accordance with generally
accepted accounting principles consistently applied. There has been no material
adverse change (financial or otherwise) in the business or operations of the
Borrower or any subsidiary since the date of such financial statements. There
are no liabilities of the Borrower or any subsidiary, fixed or contingent, which
are material but are not reflected in the financial statements and notes thereto
supplied to the Bank, except as may be identified in Schedule 5.4. The Borrower
has paid no dividends and has made no distributions (of cash or property) to its
shareholders or partners since the date of such financial statements, which
distributions are not reflected in the financial statements. No representation
or warranty contained herein, and no exhibit, or report furnished by the
Borrower to the Bank to induce the Bank to enter into this Loan Agreement or in
any way connected with this Loan Agreement or the negotiations thereof, contains
any material misstatement of fact or omits to state a material fact or any fact
necessary to make the statement contained therein not materially misleading.
5.5 NO BREACH OR VIOLATION. The consummation of the transactions
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hereby contemplated and performance of this Loan Agreement will not result in
any breach of, or constitute a default under, any mortgage, deed of trust,
lease, loan or credit agreement, trust agreement, partnership agreement,
by-laws, articles of association, shareholder agreement or other instrument to
which the Borrower is a party or by which it may be bound or affected.
5.6 TAXES. The Borrower and each of its subsidiaries, if any, have
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filed or caused to be filed all federal, state, and local tax returns required
to be filed and have paid or caused to be paid all taxes, assessments, and
governmental charges and levies thereon, including any interest and penalties,
to the extent the same are shown on said tax returns to be or to have become
due. The Borrower has set up reserves which are believed by the Borrower to be
adequate for the payment of such taxes for the years that have been audited by
the respective tax authorities. Nothing contained in this subsection shall
prevent the Borrower from contesting in good faith any tax or assessment
assessed against the Borrower so long as adequate reserves for payment of the
same have been made and verified to the Bank.
5.7 ABSENCE OF ACTIONS. Except as otherwise disclosed in documents on
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file with the Securities and Exchange Commission, there is no pending or
threatened action or proceeding against or affecting the Borrower before any
court, governmental agency, arbitrator, or otherwise which may, in one case or
in the aggregate, materially adversely affect the validity or enforceability of
the Loan Documents, or the financial condition, operations, properties, or
business of the Borrower or any subsidiary, or which would prevent or impair the
Borrower from complying with or performing any of the provisions of this Loan
Agreement or the other Loan Documents. The Borrower is not in default with
respect to any judgment, decision, order, writ, injunction, decree, or demand of
any court or any governmental authority.
5.8 COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. The Borrower is not
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in violation of any agreement or instrument to which it may be subject or by
which it or any of its properties may be bound or any decree, order, judgment,
statute, license, rule or regulation, in any of the foregoing cases in a manner
that could result in the imposition of substantial penalties or materially and
adversely affect the financial condition, properties or business of the
Borrower.
5.9 ENVIRONMENTAL COMPLIANCE. Except as otherwise disclosed in
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documents on file with the Securities and Exchange Commission, the Borrower and
its business properties are in material compliance with any and all judgments,
decrees, orders, licenses, and all federal or state laws, regulations or rules
pertaining to environmental or hazardous waste or materials ("Environmental
Laws").
5.10 OPERATION OF BUSINESS. The Borrower and any subsidiaries possess
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all licenses, permits, certificates of public good, franchises, patents,
copyrights, trademarks, and tradenames, or rights thereto, necessary to conduct
the Borrower's business substantially as now conducted and as presently proposed
to be conducted, except where the failure to do so would not have a material
adverse effect on the Borrower, and are not in violation of any valid rights of
others with respect to any of the foregoing.
6. AFFIRMATIVE COVENANTS. The Borrower covenants and agrees that, except
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with the prior written consent of the Bank, so long as the Note or any
indebtedness incurred under this Loan Agreement or any obligation of the Bank or
the Borrower shall remain outstanding, in whole or in part, the Borrower will
comply with each of the following covenants:
6.1 PUNCTUAL PAYMENT; COMPLIANCE WITH TERMS. The Borrower will duly
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and punctually pay or cause to be paid the principal and interest on the Note
and all interest, fees and other sums owing pursuant to this Loan Agreement and
the other Loan Documents and will otherwise fully and punctually comply with all
the terms, covenants and conditions of the Loan Documents.
6.2 QUARTERLY FINANCIAL STATEMENTS. As soon as available, and in any
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event within forty-five (45) days after the end of each fiscal quarter of the
first three fiscal quarters of each fiscal year, the Borrower will furnish to
the Bank unaudited consolidated balance sheets of the Borrower and its
subsidiaries, if any, as of the end of such quarter, consolidated statements of
income and retained earnings of the Borrower and its subsidiaries, if any, for
such quarter, and a consolidated and consolidating statement of change in
financial position of the Borrower and its subsidiaries, if any, for the quarter
ended with the last day of such quarter, all in reasonable detail and stating in
comparative form the respective consolidated figures for the corresponding date
and period in the previous fiscal year and all prepared in accordance with GAAP
consistently applied and certified by an officer of the Borrower (subject to
year-end adjustments). With such financial statements, the Borrower shall
supply the Bank with a Compliance Certificate.
6.3 ANNUAL FINANCIAL STATEMENTS. As soon as available and in any event
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within ninety (90) days after the end of each fiscal year of the Borrower, the
Borrower shall furnish to the Bank a copy of the annual audited report of the
Borrower, including a consolidated balance sheet as of the end of such fiscal
year and a consolidated statement of income and retained earnings for such
fiscal year, and a consolidated statement of change in financial position for
such fiscal year, all in reasonable detail and stating in comparative form the
respective consolidated figures for the corresponding date and period in the
prior fiscal year and all prepared in accordance with generally accepted
accounting principles consistently applied, accompanied by data supporting such
financial statements, and signed by a Certified Public Accountant selected by
and paid for by the Borrower and acceptable to the Bank.
6.4 OTHER INFORMATION. With reasonable promptness, the Borrower will
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furnish to the Bank such additional financial statements, data and information
concerning the financial condition of the Borrower as may be reasonably
requested by the Bank.
6.5 MAINTENANCE OF INSURANCE. The Borrower will maintain insurance
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with financially sound and reputable insurance companies or associations in such
amounts and covering such risks as the Bank shall reasonably require and as are
usually carried by companies engaged in the same or a similar business and
similarly situated, which insurance may provide for reasonable deductibility
from coverage.
6.6 MAINTENANCE OF EXISTENCE; MERGER, CONSOLIDATION. The Borrower will
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preserve and maintain, and cause each subsidiary, if any, to preserve and
maintain, its corporate or partnership existence and good standing in the
jurisdiction of its incorporation or organization and qualify and remain
qualified, and cause each subsidiary to qualify and remain qualified, as a
foreign corporation or partnership in each jurisdiction in which such
qualification is required. The Borrower will not, and will not permit any of
its subsidiaries to, become a party to any merger or consolidation, or agree to
or affect any asset or stock acquisition or disposition (other than the
acquisition or disposition of assets in the ordinary course of business
consistent with past practices).
6.7 MAINTENANCE OF RECORDS. The Borrower will keep, and cause each
-------------------------
subsidiary, if any, to keep, adequate records and books of account, in which
complete entries will be made in accordance with generally accepted accounting
principles consistently applied, reflecting all financial transactions of the
Borrower, its subsidiaries, if any.
6.8 MAINTENANCE OF PROPERTIES. The Borrower will maintain, keep and
----------------------------
preserve its properties in good working order and condition, ordinary wear and
tear and casualty damage excepted, except where the failure to do so would not
have a material adverse effect on the Borrower.
6.9 NOTICE OF DEFAULTS. The Borrower will promptly notify the Bank in
--------------------
writing of the occurrence of any default or Event of Default under this Loan
Agreement, including the receipt of any notice from or the taking of any action
by any person with respect to a claimed default under any other agreement for
borrowed money.
6.10 NOTICE OF LITIGATION. The Borrower will notify the Bank promptly
---------------------
after the commencement thereof of all actions, suits and proceedings before any
court or governmental depart-ment, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting the Borrower or any subsidiary,
that, if determined adversely to the Borrower or such subsidiary, could have a
material adverse effect on the financial condition, properties, or operations of
the Borrower or such subsidiary.
6.11 COMPLIANCE WITH LAWS. The Borrower will comply, and cause each
-----------------------
subsidiary, if any, to comply, in all respects with all applicable laws, rules,
regulations and orders, such compliance to include, without limitation, paying
before the same become delinquent all taxes, assessments, and governmental
charges imposed upon it or upon its property except where the failure to do so
would not have a material effect on the Borrower. The Borrower shall use its
best efforts to comply in all material respects with all Environmental Laws.
The Borrower (a) hereby releases and waives any future claims against the Bank
for indemnity or contribution in the event the Borrower becomes liable for
clean-up or other costs under such laws, and (b) shall indemnify and hold
harmless the Bank from any and all costs, expenses and liability relating to the
Borrower or its assets arising out of any Environmental Laws.
6.12 ADDITIONAL COSTS, ETC. If any future applicable law, which
------------------------
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body at any time or from time to time thereafter made upon or
otherwise issued to the Bank by any central bank or other fiscal, monetary or
other authority (whether or not having the force of law), shall:
A. subject the Bank to any tax, levy, duty, charge, fee, deduction or
withholding of any nature with respect to this Loan Agreement, the other Loan
Documents or the Loan (other than taxes based upon or measured by the income or
profits of the Bank); or
B. materially change the basis of taxation (except for changes in taxes on
income or profits) of payments to the Bank of the principal of or the interest
on the Advances or any other amounts payable to the Bank under this Loan
Agreement or the other Loan Documents; or
C. impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Loan Agreement) any special deposit,
reserve, assessment, liquidity, capital adequacy or other similar requirements
(whether or not having the force of law) against assets held by, or deposits in
or for the account of, or loans by, or commitments of an office of the Bank;
impose on the Bank any other conditions or requirements with respect to this
Loan Agreement, the other Loan Documents, or the Advances; and the result of any
of the foregoing is:
(i) to increase the cost to the Bank of making, fund-ing, issuing,
renewing, extending or maintaining the Loans; or
(ii) to reduce the amount of principal, interest or other amount
payable to the Bank hereunder on account of the Loans; or
(iii) to require the Bank to make any payment or to forego any
interest or other sum payable hereunder, the amount of which payment or foregone
interest or other sum is calculated by reference to the gross amount of any sum
receivable or deemed received by the Bank from the Borrower hereunder;
then, and in each such case, the Borrower will, upon demand made by the Bank at
any time and from time to time and as often as the occasion therefor may arise,
pay to the Bank such additional amounts as will be sufficient to directly
compensate the Bank for such additional cost, reduction, payment or foregone
interest or other sum to the extent the Bank is not otherwise compensated
through increases in the interest rate on Advances.
6.13 USE OF PROCEEDS. The Borrower will use the proceeds of the
------------------
Line of Credit solely to finance general working capital needs and corporate
purposes and will not, represent a loan used for personal, family or household
purposes and is not a consumer transaction, or otherwise subject to the
provisions of the Federal Truth in Lending Act or Federal Reserve Board
Regulation Z, or other consumer statutes or regula-tions and restrictions.
Borrower's use of the proceeds of the Line of Credit will not violate or result
in the violation of Section 7 of the Securities Exchange Act of 1934, or any
regulations issued pursuant thereto in effect on the date hereof, including,
without limitation, Regulation G, T, U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Ch. II.
7. NEGATIVE COVENANTS. The Borrower covenants and agrees that, except with
-------------------
the prior written consent of the Bank, so long as the Note or any other
indebtedness incurred hereunder remains unpaid, in whole or in part, or the Bank
shall have any commitment under this Loan Agreement:
7.1 DEBT. The Borrower will not create, incur, assume, or suffer to
----
exist, or permit any subsidiary to create, incur, assume, or suffer to exist,
any debt (as defined below), except:
A. debt of the Borrower under this Loan Agreement or the Note;
B. debt described in Exhibit 7.1 attached hereto, together with any
renewals, extensions, or refinancings thereof;
C. liabilities of the Borrower which are incurred in the ordinary
course of business other than debt arising with respect to borrowed money or
issuance of letters of credit;
D. liabilities of the Borrower in connection with a certain power supply
option obligation of the Borrower to Energy East Corporation entered into on or
about the same date as the date of this Agreement; and
E. debt of the Borrower in an aggregate amount not to exceed One Million
Dollars ($1,000,000).
As used in this Section 7.1, the term "debt" shall include all obligations,
contingent and otherwise, that in accordance with generally accepted accounting
principles should be classified upon the obligor's balance sheet as liabilities,
or to which reference should be made by footnotes thereto, including without
limitation all debt and similar monetary obligations, whether direct or
indirect, all liabilities secured by any mortgage, pledge, security interest,
lien, charge or other encumbrance, all obligations as lessee under any capital
leases, and all guarantees, endorsements and other contingent obligations
whether direct or indirect in respect of indebtedness of others.
7.2 MERGERS OR DISPOSITION OF ASSETS.Without the prior written consent
----------------------------------
of the Bank, the Borrower shall not merge or consolidate with or sell, assign,
lease, or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to any person or entity, or acquire all or substantially all
of the assets or the business of any person or entity, or permit any subsidiary
(if at any time existing) to do so.
7.3 LEASES. Without the prior written consent of the Bank, the Borrower
-------
shall not create, incur, assume, or suffer to exist, or permit any subsidiary
(if at any time existing) to create, incur, assume or suffer to exist, any
obligation as lessee for the rental or hire of any real or personal property,
except: (1) leases existing on the date of this Agreement and any extensions or
renewals thereof; (2) leases, of which the total annual obligation under any
such lease is not more than $100,000, with the aggregate annual obligation of
all such new leases (i.e., leases not in effect at the time of this Agreement)
not to exceed $500,000.
7.4 SALE OF ASSETS. The Borrower shall not sell, lease, assign,
-----------------
transfer, or otherwise dispose of, any of its now owned or hereafter acquired
assets (including, without limitation, shares of stock and indebtedness of
affiliates, receivables, and leasehold interests), except: (1) for inventory
disposed of in the ordinary course of business; (2) the sale or other
disposition of assets no longer used or useful in the conduct of its business;
(3) the sale or other disposition of all or any part of the stock or assets of
Mountain Energy, Inc.; (4) the sale or other disposition of all or any part of
the wind energy facility owned and operated by the Borrower and located in
Searsburg, Vermont; (5) the sale or other disposition of all or any part of the
land and improvements owned by the Borrower in Marshfield, Vermont; or (6) any
sale of other assets, provided any such single sale does not exceed $500,000 and
the aggregate proceeds of all such sales in any one fiscal year do not exceed
$500,000.
7.5 GUARANTIES, ETC. The Borrower shall not assume, guarantee,
-----------------
endorse, or otherwise be or become directly or contingently responsible or
liable, or permit any subsidiary (if at any time existing) to assume, guarantee,
endorse, or otherwise be or become directly or contingently responsible or
liable for the obligations or indebtedness of any other person (including, but
not limited to, an agreement to purchase any obligation, stock, assets, goods,
or services, or to supply or advance any funds, assets, goods, or services, or
to maintain or cause such person or entity to maintain a minimum working capital
or net worth, or otherwise to assure the creditors of any person or entity
against loss for obligations of any person), except guaranties by endorsement of
negotiable instruments for deposit or collection or similar transactions in the
ordinary course of business and such other contingent liabilities contained in
Schedule 7.5.
8. CLOSING. The closing of the Line of Credit (the "Closing") shall take
-------
place on the day this Loan Agreement is executed by the Borrower and the Bank
and all of the following conditions precedent to the making of first Advance
have been satisfied, unless otherwise mutually agreed by the Bank and the
Borrower:
A. All Loan Documents, and other instruments and documents whose
execution and delivery are required or contemplated by this Agreement (as a
condition to closing) and the other Loan Documents and such other and further
instruments and documents as Bank may reasonably require shall have been duly
executed and delivered in the form and in substance satisfactory to the Bank
B. The Bank shall have received a copy, certified by the Secretary of
the Borrower, of a resolution of the Board of Directors authorizing the
execution, delivery, and performance of each of the Loan Documents to be
executed by Borrower. The Bank shall have received (i) a copy of the articles
of incorporation of the Borrower, certified by the Secretary of State of
Vermont, and (ii) a copy of the by-laws of the Borrower, certified by the
Secretary or an Assistant Secretary of the Borrower (which certificate shall
state that the articles and by-laws are in full force and effect on the Closing
Date).
C. The Bank shall have received all necessary documents and opinions
relating to the Line of Credit, including without limitation, a legal opinion
from the Borrower's counsel, in form and substance satisfactory to the Bank, all
regulatory authorizations and approvals (which approvals shall be final and not
subject to any rights of appeal, or, if an appeal has been taken, such matter
has been satisfactorily adjudicated and determined) certified by such persons as
the Bank shall require and evidence of a good standing of the Borrower in such
jurisdictions as the Bank shall require.
D. The Borrower shall have paid all fees and expenses incurred by the
Borrower or the Bank in connection with the Line of Credit.
E. No material adverse change shall have occurred in the financial
condition of the Borrower, or in the business operations of the Borrower, from
the date of the most recent financial statements of the Borrower delivered to
the Bank.
F. The Bank shall hold a valid, first priority security interest in the
Certificate of Deposit subject to no other Encumbrance of any kind or nature.
G. Such other matters as the Bank or its counsel may, in their sole
discretion, reasonably deem necessary or appropriate in connection with the
closing of the Line of Credit.
9. EVENTS OF DEFAULT. Each of the following events shall constitute an
-------------------
"Event of Default" hereunder:
(1) The Borrower should fail to pay the principal of the Note; or
(2) The Borrower shall fail to pay any installment of interest, and such
failure continues for five days from the date such installment of interest was
due;
(3) Any material representation or warranty made or deemed made by the
Borrower in this Agreement, or in any other Loan Document, or which is
contained in any certificate, document, opinion, or financial or other statement
furnished by or on behalf of the Borrower at any time under or in connection
with any Loan Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(4) The Borrower shall either (i) fail to perform or observe any
covenant or agreement contained in Sections 6 or 7 hereof, or (ii) fail to
perform or observe any other material term, covenant, or agreement contained in
any Loan Document on its part to be performed or observed, and failure to cure
within fifteen (15) days of written notice; or
(5) The Borrower (a) shall be unable to, or shall admit in writing its
inability to pay its debts as they become due; or (b) shall make an assignment
for the benefit of creditors, petition or apply to any tribunal for the
appointment of a custodian, receiver, or trustee for it or a substantial part of
its assets; or (c) shall commence any proceeding under any bankruptcy,
reorganization, arrangements, readjustment of debt, dissolution, or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or (d)
shall have any such petition or application filed or any such proceeding
commenced against it in which an order for relief is entered or adjudication or
appointment is made and is not dismissed or stayed within forty-five (45) days;
or (e) by any act or omission shall indicate its consent to, approval of, or
acquiescence in any such petition, application, or proceeding, or order for
relief, or the appointment of a custodian, receiver, or trustee for all or any
substantial part of its properties; or (f) shall suffer any custodianship,
receivership, or trusteeship and any such proceeding not instituted by Borrower
shall not be dismissed or stayed within forty-five (45) days; or
(6) One or more uninsured judgments, decrees, or orders for the payment of
money in excess of an aggregate of Five Hundred Thousand Dollars ($500,000.00)
in the aggregate shall be rendered against the Borrower and such judgments,
decrees, or orders shall continue unsatisfied and in effect for a period of
thirty (30) consecutive days without being vacated, discharged, satisfied, or
stayed or bonded pending appeal; or
(7) Any material change in the condition or affairs (financial or
otherwise) of the Borrower which in the reasonable opinion of the Bank will
materially impair its security or increase its risk; or
(8) The Borrower shall fail to pay upon any due date or upon demand (if
the nature of the obligation is a demand obligation) any amount due in
connection with the LIBOR Advances; or
(9) The Borrower shall fail to perform or observe any material term,
covenant or agreement contained in any document evidencing and/or related to the
LIBOR Advances which is not cured within five (5) days thereof; or
(10) Any event of default by the Borrower to others for borrowed money
under any indenture, mortgage, loan agreement, security agreement or other
instrument in excess of $500,000, including, without limitation, the Borrower's
outstanding indenture and first mortgage bonds and the Amended and Restated
Credit Agreement with Fleet National Bank, as agent; or
(11) The Borrower shall dissolve or shall commit a material default in
any other material agreement or suffer an ERISA violation.
10. REMEDIES UPON DEFAULT.
-----------------------
10.1 REMEDIES UPON DEFAULT. If an Event of Default shall occur, the
------------------------
Bank shall not have any obligation to permit any further borrowing hereunder or
under any other Loan Document, and may declare the indebtedness evidenced by the
Note immediately due and payable, without presentment, protest, demand or notice
of any kind, all of which are hereby expressly waived by the Borrower (unless
expressly set forth in this Agreement); and may pursue any and all remedies
provided for hereunder and in any one or more of the Loan Documents or at law or
in equity, including, without limitation, the following:
A. Set off and apply against any indebtedness or liability of the
Borrower to the Bank any indebtedness owing from the Bank (or any affiliate of
the Bank) to the Borrower or any other Obligor at any time and from time to time
either before of after maturity and without demand upon or notice to anyone;
B. Upon default by the Borrower in any of the covenants or agreements
contained in this Agreement or in any other Loan Document providing for the
payment of taxes, the maintenance of insurance, or otherwise relating to the
property of Borrower, the Bank may, in its sole discretion, advance such sums
and costs and take such other steps as the Bank may deem necessary or advisable
to protect the same. All sums advanced or paid by the Bank for such purposes
shall be payable by the Borrower to the Bank on demand, as advances or loans
from the Bank to the Borrower under this Agreement, and shall be part of the
obligations deemed to have been an Advance; and
No remedy conferred upon or reserved to the Bank in the Loan Documents is
intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to any other
remedy given hereunder or in any other Loan Document or now or hereafter
existing at law or in equity or by statute and the exercise of any remedy or
remedies shall not be an election of the remedies. The remedies and rights of
the Bank may be exercised concurrently, alone or in any combination.
10.2 COOPERATION OF THE BORROWER. The Borrower agrees to cooperate
------------------------------
with the Bank in effectuating the purposes hereof notwithstanding any inability
of the Borrower to pay the Note or otherwise perform the obligations of this
Loan Agreement or any other Loan Document.
11. MISCELLANEOUS.
--------------
11.1 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
------------------------
inure to the benefit of the Borrower and the Bank and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of their rights under any Loan Document to which the Borrower is a party without
the prior written consent of the Bank.
11.2 ENTIRE AGREEMENT; REVISIONS. The Loan Documents express the
-----------------------------
entire understanding of the parties with respect to the transactions
contemplated hereby and supersede all prior negotiations, representations,
agreements and understandings relating to the subject matter thereof, whether
written or oral. The Borrower acknowledges that it and its counsel have had an
opportunity to review this Agreement. There are no implicit or oral
understandings or agreements not fully and accurately set forth in this
Agreement. It is understood and agreed that no officer or employee of the Bank
has any authority to modify, alter or amend this Agreement orally. It is
further understood and agreed that at no time will any oral agreement that is
inconsistent with the terms of this Agreement be enforceable against the Bank
and that no change or modification of this Loan Agreement shall be valid unless
the same is in writing and signed by the parties hereto.
11.3 WAIVER OF RIGHTS OF BANK. Neither the failure of the Bank to
----------------------------
exercise, nor the delay of the Bank in exercising, any right, power or privilege
under this Loan Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise or any right, power or privilege preclude any other
or further exercise of any other right, power or privilege.
11.4 NOTICES. Any demand upon or notice to the Borrower hereunder
-------
shall be effective when delivered by hand or when properly deposited in the
mail, registered or certified mail, return receipt requested, postage prepaid,
or sent by electronic facsimile transmission, receipt acknowledged, or delivered
to an overnight courier, in each case addressed to the Borrower at the address
shown below or as it appears on the books and records of the Bank. Any notice
by the Borrower to the Bank shall be given as aforesaid, addressed to the Bank
at the address shown below or such other address as the Bank may advise the
Borrower in writing.
Bank: KeyBank National Association
P. O. Box 949
149 Bank Street
Burlington, Vermont 05402-0949
Attention: Mr. John Kingston
Senior Vice President
Fax: (802) 864-6908
Borrower: GREEN MOUNTAIN POWER CORPORATION.
163 Acorn Lane
Colchester, VT 05446-6611
Attention: Ms. Nancy Rowden Brock, CFO and Treasurer
11.5 EXECUTION; GOVERNING LAW. This Loan Agreement may be executed in
------------------------
several counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument. This Loan
Agreement shall be construed in accordance with and governed by the laws of the
State of Vermont.
11.6 AGREEMENT NOT INTENDED AS PARTNERSHIP OR AGENCY. The parties
----------------------------------------------------
expressly disclaim any intention to create a partnership or joint venture
pertaining to the subject matter of this Loan Agreement. The parties intend
that their relationship shall be solely that of borrower and lender, whether
that relationship is relevant for purposes of the parties' dealings between
themselves or with third persons. Neither the Borrower nor the Bank shall be
deemed an agent of the other for any purpose.
11.7 LOAN AGREEMENT TO GOVERN. In the event of any material
---------------------------
inconsistencies between this Loan Agreement and any of the other Loan Documents,
this Loan Agreement shall govern.
11.8 COSTS, EXPENSES, AND TAXES. The Borrower shall pay on demand all
---------------------------
out-of-pocket costs and expenses in connection with the preparation, execution,
delivery, filing, and recording of the Line of Credit and any Loan Documents,
including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Bank, with respect thereto and with respect to advising the Bank
as to its rights and responsibilities under any of the Loan Documents, and all
costs and expenses, if any, in connection with the enforcement of any of the
Loan Documents. In addition, the Borrower shall pay any and all stamp and other
taxes and fees payable or determined to be payable in connection with the
execution, delivery, filing and recording of any of the Loan Documents and the
other documents to be delivered under any such Loan Documents, and agrees to
save the Bank harmless from and against any and all liabilities with respect to
or resulting from any delay in paying or omission to pay such fees, costs and
charges.
11.9 INDEMNIFICATION. The Borrower shall indemnify the Bank, its
----------------
officers, directors, employees and agents (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
---------
losses, claims, damages, liabilities and related expenses, including the fees,
---
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the transactions
contemplated hereby, (ii) any Advance or the use of the proceeds therefrom,
(iii) any actual or alleged presence or release of Hazardous Materials on or
from any property owned or operated by the Borrower or any of its subsidiaries,
or any Environmental Liability related in any way to the Borrower or any of its
subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
--------
the extent that such losses, claims, damages, liabilities or related expenses
--
are deter-mined by a court of competent jurisdiction by final and nonappealable
--
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee. Any Indemnitee seeking indemnification hereunder shall provide
the Borrower with prompt notice of any claim for which it seeks indemnification
hereunder. Such Indemnitee shall cooperate with the Borrower in the defense of
any such claim and shall not settle any such claim without the prior written
consent of the Borrower, which consent will not be withheld without good reason.
To the extent permitted by applicable law, the Borrower shall not assert,
and hereby waives, any claim against any Indemnitee, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, or any Advance or
the use of the proceeds thereof.
11.10 SEVERABILITY OF PROVISIONS. Any provision of any Loan Document
----------------------------
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 of such Loan
Document or affecting the validity or enforceability of such provision in any
other jurisdiction.
11.11 HEADINGS. The headings in the Loan Documents are included for
--------
the convenience of reference only and shall not constitute a part of the
applicable Loan Documents for any other purpose.
11.12 SURVIVAL. This Loan Agreement shall survive the Closing and each
--------
and every one of the obligations and undertakings of the Borrower set forth in
this Loan Agreement shall be continuing obligations and undertakings and shall
not cease or terminate until the entire outstanding principal amount of all
Advances, together with all interest and fees due thereon and any other amounts
which may be due pursuant to this Loan Agreement, shall have been paid in full,
and until the obligations and undertakings of the Borrower shall have been fully
completed and discharged.
IN WITNESS WHEREOF, the Borrower and the Bank, acting by and through their
duly authorized agents, have caused this Agreement to be executed as of the date
first above written.
GREEN MOUNTAIN POWER CORPORATION
_____________________________ By:/s/Nancy Rowden Brock
--------------------
Witness Its Duly Authorized Agent
KEYBANK, NATIONAL ASSOCIATION
_____________________________ By: /s/John W. Kingston
------------------
Witness Its Duly Authorized Agent
