Exhibit 10.15
AMENDMENT AGREEMENT
This Amendment Agreement ("Agreement") is entered into as of the 24th
day of August, 1999, by and among PENNICHUCK CORPORATION, a New Hampshire
corporation with an address of 0 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000
(the "Borrower"), PENNICHUCK WATER WORKS, INC., a New Hampshire corporation
with an address of 0 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000 (the
"Guarantor"), and FLEET BANK - NH, a bank incorporated under the laws of
the State of New Hampshire with a principal place of business at 0000 Xxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxxxxx 00000.
W I T N E S S E T H :
WHEREAS, the Bank and the Borrower entered into a Loan Agreement
dated October 2, 1991 establishing a Revolving Line of Credit Loan (the
"Loan" or the "Line of Credit") in the amount up to $4,500,000 in favor of
the Borrower, as amended and modified by agreements dated on or about June
4, 1993, March 23, 1994, May 4, 1995, July 31, 1996 and March 18, 1998 (the
"Loan Agreement");
WHEREAS, the Guarantor executed a Limited Guaranty Agreement dated as
of March 23, 1994, as amended and ratified, in which it guaranteed the
payment of the Loan as governed by and limited in said Limited Guaranty
Agreement (the "Limited Guaranty Agreement");
WHEREAS, the parties have executed certain documents and instruments
in connection with the Loan (collectively the "Loan Documents"); and
WHEREAS, the Borrower, the Guarantor and the Bank have agreed to
amend the Loan Documents to, among other things, reduce the maximum amount
of the Line of Credit to $2,500,000 and amend the period of loan commitment
under the Line of Credit to June 30, 2001.
NOW, THEREFORE, in consideration of the foregoing and mutual
covenants and agreements therein contained, the receipt and adequacy of
which is hereby acknowledged, the parties covenant, stipulate and agree as
follows:
1. Representations and Warranties of the Borrower and the
Guarantor. Each of the Borrower and the Guarantor represents and
warrants to the Bank as follows:
(a) The representations, warranties and covenants of the
Borrower and the Guarantor made in the Loan Documents remain
true and accurate and are hereby reaffirmed as of the date
hereof.
(b) Each of the Borrower and the Guarantor has
performed, in all material respects, all obligations to be
performed by it to date under the Loan Documents and no event
of default exists thereunder.
(c) Each of the Borrower and the Guarantor is a
corporation duly organized, qualified and existing in good
standing under the laws of the State of New Hampshire and is
duly qualified to do business in all jurisdictions in which the
character of the property owned by or the nature of its
activities causes such qualification to be necessary.
(d) The execution, delivery and performance of this
Agreement and the documents relating hereto (the "Amendment
Documents") are within the power of the Borrower and the
Guarantor and are not in contravention of law, of either of the
Borrower's or the Guarantor's Articles of Incorporation, By-
laws or the terms of any other documents, agreements or
undertaking to which either the Borrower or the Guarantor is a
party or by which either the Borrower or the Guarantor is
bound. No approval of any person, corporation, governmental
body or other entity not provided herewith is a prerequisite to
the execution, delivery and performance by the Borrower or the
Guarantor of the Amendment Documents or any of the documents
submitted to the Bank in connection with the Amendment
Documents, or upon execution by the Bank to ensure the validity
or enforceability thereof.
(e) When executed on behalf of the Borrower and the
Guarantor, the Amendment Documents will constitute the legally
binding obligations of the Borrower and the Guarantor,
enforceable in accordance with their terms; provided, that the
enforceability of any provisions in the Amendment Documents, or
of any rights granted to the Bank pursuant thereto may be
subject to and affected by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights
of creditors generally and that the right of the Bank to
specifically enforce any provisions of the Amendment Documents
is subject to general principles of equity.
2. Amendment to Loan Agreement. The Loan Agreement is hereby
amended as follows:
(a) The Loan Agreement is hereby amended by deleting the
amount "Four Million Five Hundred Thousand Dollars
($4,500,000)" appearing in the fifth and sixth lines of Article
IIA and replacing the amount with "Two Million Five Hundred
Thousand Dollars ($2,500,000).
(b) The phrase "June 30, 2000" appearing in the tenth
and eleventh lines of Article II C of the Loan Agreement is
hereby deleted and replaced with "June 30, 2001".
(c) Article VII of the Loan Agreement is hereby amended
by inserting the following new Paragraph P at the end thereof:
"P. Year 2000 Representation. The Borrower has
reviewed the "Year 2000 Risk" (that is the risk
that computer applications used by the Borrower
and/or its suppliers, vendors and customers may
be unable to recognize and perform without
error date-sensitive functions involving
certain dates prior to and any date after
December 31, 1999) and represents that it is
taking such action as may be necessary to
ensure that the Year 2000 Risk will not
adversely affect its business operations and/or
financial condition."
(d) Article VIII is hereby amended by inserting the
following new Paragraph N at the end of said Article VIII:
"N. Line of Credit Balance. The Borrower shall
maintain a Debit Balance, as defined in the
Line of Credit Note, of not more than the
maximum principal sum provided for in such Note
or under this Agreement at any time."
(e) Paragraph J of Article XII of the Loan Agreement is
hereby amended by deleting the paragraph in its entirety and
replacing it with the following:
"J. Assignment by the Bank. The Bank shall have the
unrestricted right at any time or from time to
time, and without the Borrower's or any
Guarantor's consent, to assign all or any
portion of its rights and obligations hereunder
to one or more banks or other financial
institutions (each, an "Assignee"), and the
Borrower and each Guarantor agrees that it
shall execute, or cause to be executed, such
documents, including without limitation,
amendments to this Agreement and to any other
documents, instruments and agreements executed
in connection herewith as the Bank shall deem
necessary to effect the foregoing. In
addition, at the request of the Bank and any
such Assignee, the Borrower shall issue one or
more new promissory notes, as applicable, to
any such Assignee and, if the Bank has retained
any of its rights and obligations hereunder
following such assignment, to the Bank, which
new promissory notes shall be issued in
replacement of, but not in discharge of, the
liability evidenced by the promissory note held
by the Bank prior to such assignment and shall
reflect the amount of the respective
commitments and loans held by such Assignee and
the Bank after giving effect to such
assignment. Upon the execution and delivery of
appropriate assignment documentation,
amendments and any other documentation required
by the Bank in connection with such assignment,
and the payment by Assignee of the purchase
price agreed to by the Bank, and such Assignee,
such Assignee shall be a party to this
Agreement and shall have all of the rights and
obligations of the Bank hereunder (and under
any and all other guaranties, documents,
instruments and agreements executed in
connection herewith) to the extent that such
rights and obligations have been assigned by
the Bank pursuant to the assignment
documentation between the Bank and such
Assignee, and the Bank shall be released from
its obligations hereunder and thereunder to a
corresponding extent."
(f) Article XII of the Loan Agreement is hereby further
amended by adding the following new Paragraphs at the end of
said Article XII:
"P. Pledge to Reserve. The Bank may at any time
pledge all or any portion of its rights under
the Loan Documents including any portion of the
promissory note to any of the twelve (12)
Federal Reserve Banks organized under Section 4
of the Federal Reserve Act, 12 U.S.C. Section
341. No such pledge or enforcement thereof
shall release the Bank from its obligations
under any of the Loan Documents nor provide the
Bank with any additional rights hereunder nor
adversely affect the terms of the Loan.
Q. Usury. All agreements between the Borrower and
the Bank are hereby expressly limited so that
in no contingency or event whatsoever, whether
by reason of acceleration of maturity of the
indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to
the Bank for the use or the forbearance of the
indebtedness evidenced hereby exceed the
maximum permissible under applicable law. As
used herein, the term "applicable law" shall
mean the law in effect as of the date hereof
provided, however, that in the event there is a
change in the law which results in a higher
permissible rate of interest, then the Note
shall be governed by such new law as of its
effective date. In this regard, it is
expressly agreed that it is the intent of the
Borrower and the Bank in the execution,
delivery and acceptance of this Amendment to
contract in strict compliance with the laws of
the State of New Hampshire from time to time in
effect. If, under or from any circumstances
whatsoever, fulfillment of any provision hereof
or of any of the Loan Documents at the time of
performance of such provision shall be due,
shall involve transcending the limit of such
validity prescribed by applicable law, then the
obligation to be fulfilled shall automatically
be reduced to the limits of such validity, and
if under or from circumstances whatsoever the
Bank should ever receive as interest an amount
which would exceed the highest lawful rate,
such amount which would be excessive interest
shall be applied to the reduction of the
principal balance evidenced hereby and not to
the payment of interest. This provision shall
control every other provision of all agreements
between the Borrower and the Bank.
R. Payments. All payments required under this
Loan Agreement, the Note or any other Loan
Document shall be in lawful money of the United
States in immediately available funds. The due
dates of all payments required under the Loan
Agreement, the Note or any other Loan Document
are subject to adjustment in accordance with
the Modified Following Business Day Convention.
Modified Following Business Day Convention
means the convention for adjusting any relevant
date if it would otherwise fall on a day that
is not a Business Day to the date that will be
the first following day that is a Business Day
(unless that day falls in the next calendar
month, in which case that date will be the
first preceding day that is a Business Day).
Business Day means, in respect to any date that
is specified in the Loan Agreement or the Note
to be subject to adjustment in accordance with
applicable Modified Following Business Day
Convention, a day on which commercial banks
settle payments in (a) London, if the payment
obligation is calculated by reference to any
LIBOR Rate or (b) New York, if the payment
obligation is calculated by reference to the
Prime Rate, but not including Saturdays,
Sundays, legal holidays or any day on which
banking institutions are required or authorized
to close.
S. Upon receipt of an affidavit of an officer of
the Bank as to the loss, theft, destruction or
mutilation of the Note or any other Loan
Document which is not of public record, and, in
the case of any such loss, theft, destruction
or mutilation, upon cancellation of such Note
or other Loan Document, the Borrower will
issue, in lieu thereof, a replacement note or
other security document in the same principal
amount thereof and otherwise of like tenor.
T. THE BORROWER, THE GUARANTOR AND THE BANK
MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY
JURY IN RESPECT OF ANY CLAIM BASED HEREON,
ARISING OUT OF, UNDER OR IN CONNECTION WITH THE
LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENTS
CONTEMPLATED TO BE EXECUTED IN CONNECTION
HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR BANK TO
ACCEPT THE NOTE AND MAKE THE LOAN."
3. Amendment to Amended and Restated Revolving Credit
Promissory Note. The Amended and Restated Revolving Promissory Note
made payable by the Borrower to the Bank in the principal amount of
$4,500,000 dated March 23, 1994, as amended (the "Note") is hereby
further amended as follows:
(a) The maximum principal amount of the Note is hereby
reduced to Two Million Five Hundred Thousand Dollars
($2,500,000).
(b) In accordance with the Loan Agreement, the Line of
Credit is hereby renewed until June 30, 2001.
(c) All other terms and conditions of the Note except as
amended hereby, are ratified and confirmed.
4. Guarantor Consent. By execution hereof, the Guarantor
consents to this Agreement and the transactions contemplated hereby
and acknowledges and agrees that its guaranty under the Limited
Guaranty Agreement applies to all amounts advanced or to be advanced
under the Loan Agreement, the Note and all Loan Documents, as
amended, in accordance with the terms of the Limited Guaranty
Agreement.
5. Conditions Precedent. The obligations of the Bank
hereunder are subject to delivery by the Borrower and the Guarantor
to the Bank of this Agreement and all other documents set forth on
the Closing Agenda attached hereto as Exhibit A.
6. Loan Documents. The Borrower and the Guarantor shall
deliver this Agreement to the Bank and this Agreement shall be
included in the term "the Loan Documents" in the Loan Agreement. The
collateral granted to the Bank therein, including without limitation,
the Limited Guaranty Agreement, shall continue to secure the Loan as
set forth in the Loan Documents, as amended hereby.
7. Future References. All references to the Loan Documents
shall hereinafter refer to such documents as amended.
8. Continuing Effect. The provisions of the Loan Document, as
modified herein, shall remain in full force and effect in accordance
with their terms and are hereby ratified and confirmed.
9. General. (a) The Borrower and the Guarantor shall execute
and deliver such additional documents and do such other acts as the
Bank may reasonably require to implement the intent of this Agreement
fully.
(b) The Borrower shall pay all costs and expenses,
including, but not limited to, attorneys' fees incurred by the
Bank in connection with this Agreement. The Bank, at its
option, but without any obligation to do so, may advance funds
to pay any such costs and expenses that are the obligation of
the Borrower and all such funds advanced shall bear interest at
the highest rate provided in the Loan Documents.
(c) This Agreement may be executed in several
counterparts by the Borrower, the Bank and any obligor or
guarantor of the Loan Agreement, each of which shall be deemed
an original but all of which together shall constitute one and
the same Agreement.
IN WITNESS WHEREOF, the Bank, the Borrower and the Guarantor have
executed this agreement by their duly authorized officers as of the date
set forth above.
FLEET BANK - NH
___________________________ By:_________________________________
Witness Xxxxx X. Xxxxxxxxxxx, Its Duly
Authorized Vice President
PENNICHUCK CORPORATION
___________________________ By:_________________________________
Witness Xxxxxxx X. Xxxxx, Its Duly
Authorized Vice President
PENNICHUCK WATER WORKS, INC.
___________________________ By:_________________________________
Witness Xxxxxxx X. Xxxxx, Its Duly
Authorized Vice President
STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this __ day of
August, 1999 by Xxxxx X. Xxxxxxxxxxx, duly authorized Vice President of
FLEET BANK - NH, a bank incorporated under the laws of the State of New
Hampshire, on behalf of same.
____________________________________
Justice of the Peace/Notary Public
My Commission Expires:
Notary Seal
STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this __ day of
August, 1999 by Xxxxxxx X. Xxxxx, duly authorized Vice President of
PENNICHUCK CORPORATION, a New Hampshire corporation, on behalf of same.
____________________________________
Justice of the Peace/Notary Public
My Commission Expires:
Notary Seal
STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this __ day of
August, 1999 by Xxxxxxx X. Xxxxx, duly authorized Vice President of
PENNICHUCK WATER WORKS, INC., a New Hampshire corporation, on behalf of
same.
____________________________________
Justice of the Peace/Notary Public
My Commission Expires:
Notary Seal
