Part II, Item 6(a), Exhibit 10.87
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Reference is hereby made to that certain Amended and Restated Credit
Agreement dated as of August 17, 1998, as amended by the First Amendment to
Amended and Restated Credit Agreement dated as of June 23, 1999, by the Second
Amendment to Amended and Restated Credit Agreement dated as of November 19,
1999, by the Third Amendment to Amended and Restated Credit Agreement dated as
of December 20, 1999, and by the Fourth Amendment to Amended and Restated Credit
Agreement dated as of June 21, 2000 (as so amended, the "Agreement") by and
among GREEN MOUNTAIN POWER CORPORATION, a Vermont corporation (the "Company"),
the lenders signatory thereto (each, a "Bank," and collectively, the "Banks")
and FLEET NATIONAL BANK, as agent (in such capacity, the "Agent"). Capitalized
terms not defined herein shall have the meanings ascribed thereto in the
Agreement.
WHEREAS, the Company has requested that the Banks agree to permit the
Company to xxxxx x xxxx on a certain certificate of deposit to KeyBank National
Association, and to amend certain other terms of the Agreement, and the Banks
are prepared to do so on the terms and subject to the conditions contained in
this Fifth Amendment to Amended and Restated Credit Agreement (the "Fifth
Amendment"); and
WHEREAS, the Company, the Banks, and the Agent have agreed to make certain
further amendments to the Agreement, as set forth in this Fifth Amendment;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties do hereby agree as follows:
1. The Agreement is hereby amended as follows:
a. Definitions.
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i. Paragraph 1.1 of the Agreement is amended to add the following
definitions, which shall be placed in alphabetical order among the other
definitions included in such paragraph:
"'Effective Date of the Fifth Amendment': as defined in Section 5 of the Fifth
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Amendment.
'Fifth Amendment': the Fifth Amendment to Amended and Restated Credit Agreement
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dated as of September 20, 2000, by and among the Company, the Banks and the
Agent."
'KeyBank Credit Facility': the credit facility, in a principal amount not to
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exceed $15,000,000, in effect pursuant to that certain Revolving Line of Credit
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Agreement dated as of September 20, 2000, between KeyBank National Association,
or its successors and assigns, and the Company.
'KeyBank Certificate of Deposit': the certificate of deposit issued by KeyBank
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National Association, in an amount not to exceed $15,150,000, for the benefit
of the Company, which the Company has pledged to KeyBank National Association to
secure its obligations under the KeyBank Credit Facility."
ii. Designated Documents. The definition of "Designated
----------------------
Documents", as set forth in paragraph 1.1 of the Agreement is hereby amended to
include the Company's filing on Form S-8 dated June 21, 2000, the Company's
filing on Form 11-K dated June 29, 2000, the Company's filing on Form S-8 dated
July 27, 2000, the Company's quarterly report on Form 10-Q for the fiscal
quarter ending June 30, 2000, and the Company's filing on Form 8-K dated August
28, 2000.
b. Excess Cash and Cash Equivalents. Paragraph 2.6(b) is amended to
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strike and delete the sentences that reads: "So long as any Loans are unpaid,
the Company shall not for more than two (2) consecutive Business Days maintain
Cash and Cash Equivalents of more than $1,000,000, and any Cash and Cash
Equivalents so maintained in excess thereof shall forthwith be paid to Agent for
the benefit of the Banks as a prepayment on account of the Loans. No such
prepayment shall be required if the amount such excess Cash and Cash Equivalents
is not at least $250,000." and to replace it with the following:
"So long as any Loans are unpaid, the Company shall not for more than two (2)
consecutive Business Days maintain Cash and Cash Equivalents (other than the
KeyBank Certificate of Deposit) of more than $1,000,000, and any Cash and Cash
Equivalents so maintained in excess thereof (other than the KeyBank Certificate
of Deposit) shall forthwith be paid to Agent for the benefit of the Banks as a
prepayment on account of the Loans. No such prepayment under the foregoing
sentence shall be required if the amount such excess Cash and Cash Equivalents
(other than the KeyBank Certificate of Deposit) is not at least $250,000. So
long as any Loans or accrued interest, fees, or charges in respect thereof are
unpaid, any and all proceeds of each borrowing or advance under the KeyBank
Credit Facility (up to the amount of such Loans and accrued interest, fees, and
charges in respect thereof) shall from time to time be remitted forthwith by the
Company to the Agent for the benefit of the Banks as a prepayment on account of
the Loans."
c. KeyBank Credit Facility. The Agreement is hereby amended to
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add the following as a new paragraph 2.17 thereof:
"2.17 KeyBank Credit Facility. Notwithstanding anything else to the
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contrary herein, the Company agrees that:
(a) the Company shall have no right to request, and the Banks shall have no
obligation to make, any Loans, unless as of the respective Borrowing Date: (i)
the outstanding principal balance of borrowings by the Company under the KeyBank
Credit Facility is $15,000,000; and (ii) the Company has used all proceeds of
borrowings and advances under the KeyBank Credit Facility only for Permitted
Uses or to repay the Loans; and
(b) so long as any Loans or accrued interest, fees, or charges in respect
thereof are unpaid, the Company shall not make any payment on account of the
KeyBank Credit Facility (whether for payment of principal or interest or
otherwise) other than a payment consisting entirely of the KeyBank Certificate
of Deposit or the proceeds thereof, provided, however, that unless and until
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Company receives written notice from Agent that an Event of Default exists under
the Agreement, Company may pay scheduled payments of interest and fees on
account of the KeyBank Credit Facility."
d. Liens. Paragraph 8.2(iii) of the Agreement is hereby amended to add
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the following immediately prior to the semicolon at the end thereof:
", or Liens up to the amount of $15,150,000 on the KeyBank Certificate of
Deposit"
e. Borrowing Request. Exhibit C to the Agreement is hereby
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amended and restated in its entirety as set forth in Exhibit C-5, attached
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hereto.
2. Amendment Fee. Upon the Company's execution of this Fifth Amendment,
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the Company agrees to pay to the Agent for the account of the Banks a fee (the
"Amendment Fee") in the amount of $7,500, to be divided evenly among the Banks,
which fee shall be fully earned and nonrefundable upon the Agent's and the
Banks' signing of this Fifth Amendment.
3. Release; No Waiver.
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a. The Company hereby releases Agent, each Bank, and their
respective participants, officers, directors, employees, agents, attorneys,
successors and assigns from and against any and all claims which the Company
has, may have, or might now or in the future assert against them or any of them
arising out of, or in connection with any event, matter, act or omission, known
or unknown, which occurred, existed, was taken or omitted prior to the Effective
Date of the Fifth Amendment with respect to the Agreement, the Loan Documents,
as previously amended and amended hereby, the making or administration of the
Loans, or any requests for Loans. The inclusion of this paragraph in no way
constitutes an admission of liability or an acknowledgement by Agent, the Banks
or any other party that any such claims exist.
b. The Agent and the Banks agree that no Material Adverse Change
occurring prior to the Effective Date of the Fifth Amendment shall constitute an
Event of Default so long as the facts giving rise to such Material Adverse
Change were fully disclosed to Agent and the Banks prior to such date. Except as
set forth in the immediately preceding sentence, the Agent and the Banks reserve
and do not waive any of their rights and remedies under the Agreement, the other
Loan Documents and applicable law. Any Material Adverse Change occurring on or
after the Effective Date of the Fifth Amendment shall constitute an Event of
Default. Disapproval by the VPSB of any provision of this Fifth Amendment shall
be deemed to constitute a Material Adverse Change.
4. Representations and Warranties. In order to induce the Banks to
--------------------------------
enter into this Fifth Amendment, the Company makes the following representations
and warranties, all of which shall survive the execution and delivery of this
Fifth Amendment:
a. The Company has all requisite corporate, partnership or other power
and authority to execute, deliver and perform its obligations under this Fifth
Amendment and under the Agreement, as amended hereby. This Fifth Amendment has
been duly authorized, executed and delivered by the Company, and does not
conflict with, violate or result in a breach of or require any consent that has
not been obtained under any applicable law, rule or regulation or any of the
terms of the charter or by-laws (or equivalent constitutional documents) of the
Company, any agreement or instrument to which the Company is a party or to which
the Company is bound or to which it is subject. This Fifth Amendment and the
Agreement, as amended hereby, constitute the legal, valid and binding
obligations of the Company enforceable against it in accordance with their
terms.
b. On the date hereof each of the Company's representations and
warranties in the Agreement are true, accurate and complete in all material
respects, provided that, if any representation or warranty is expressly required
in the Agreement to be made only as of a specific date, such representation or
warranty shall be true, accurate and complete as of such date in all material
respects.
c. Upon the execution and delivery of this Fifth Amendment, and the
satisfaction of each of the conditions precedent set forth in Section 5 of this
Fifth Amendment, no Event of Default shall exist and be continuing, nor shall
any event have occurred which would be an Event of Default but for the passage
of time or the giving of notice.
5. Conditions Precedent. The agreements contained herein and the
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amendments contemplated hereby shall become effective on the date (the
"Effective Date of the Fifth Amendment") when the Company, the Agent and the
Banks shall have executed this Fifth Amendment and when each of the following
conditions shall have been fulfilled to the satisfaction of, or waived, by the
Banks:
a. Proceedings; Receipt of Documents. All requisite corporate action
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and proceedings of the Company in connection with the execution and delivery of
this Fifth Amendment, and any other approvals of VPSB or other Governmental
Body, if required, shall be satisfactory in form and substance to the Banks, and
the Banks shall have received all information and copies of all documents,
including, without limitation, records of requisite corporate action and
proceedings which the Banks may have requested in connection therewith, such
documents where requested by the Banks to be certified by appropriate persons or
governmental authorities;
b. Pledge of KeyBank Certificate of Deposit. The Company shall have
delivered a pledge agreement in form and substance satisfactory to the Agent
granting the Agent, for the benefit of the Banks, a valid and perfected security
interest in and to the KeyBank Certificate of Deposit, first in priority to all
other liens and security interests therein other than those held by KeyBank to
secure the KeyBank Credit Facility, together with UCC-1 financing statements
evidencing the same, and KeyBank shall have entered into a control agreement
with the Agent in form and substance satisfactory to the Agent;
c. Legal Opinion. The Company's counsel shall have delivered a legal
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opinion to the Banks substantially in the same form as the legal opinion dated
as of June 21, 2000, except that the legal opinion submitted in connection
herewith shall contain an opinion that there is no requirement that the VPSB
approve this Fifth Amendment;
d. Amendment Fee; Fees and Expenses. The Company shall have delivered
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the $7,500 Amendment Fee to the Agent, and shall have delivered to the Agent
reimbursement for the Agent's counsel's fees and expenses; and
e. Material Litigation. There shall be no pending or, to the best
knowledge of the Company, threatened litigation with respect to the Company
before any court, arbitrator or governmental or administrative body or agency
which challenges or relates to (i) the transactions contemplated hereby or (ii)
the Loan Documents.
6. Reaffirmation and Ratification of Existing Agreements, Etc. The
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Company: (a) reaffirms and ratifies all its obligations to the Banks, in
respect of the Agreement, as hereby amended, and the other Loan Documents, (b)
certifies that there are no defenses, offsets or counterclaims to such
obligations as of the date hereof, (c) expressly acknowledges its continuing
liability pursuant thereto, and (d) agrees that each of the Agreement, as
amended hereby, and the other Loan Documents shall remain in full force and
effect, enforceable against the Company in accordance with its terms.
7. Miscellaneous.
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a. This Fifth Amendment may be executed on separate counterparts by the
parties hereto, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same agreement.
b. This Fifth Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the laws of
the Commonwealth of Massachusetts (without giving effect to the conflict of law
principles thereof).
c. The headings of the several sections of this Fifth Amendment are inserted
for convenience only and shall not in any way affect the meaning or construction
of any provision of this Fifth Amendment.
d. This Fifth Amendment, together with any other documents or instruments to
be delivered in connection herewith (the "Fifth Amendment Documents") embody the
entire agreement and understanding among the parties relating to the subject
matter hereof and supersede all prior proposals, negotiations, agreements and
understandings relating to such subject matter.
e. This Fifth Amendment, together with the other Fifth Amendment Documents,
shall be deemed to be Loan Documents under the Agreement.
f. EACH OF THE COMPANY, THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIFTH AMENDMENT,
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
g. The Company shall pay on demand the reasonable costs and expenses,
including, without limitation, reasonable attorneys' fees and expenses incurred,
or which may be incurred by the Agent and the Banks in connection with the
negotiation and documentation of this Fifth Amendment.
IN WITNESS WHEREOF, this Fifth Amendment has been duly executed and
delivered as a sealed instrument at Boston, Massachusetts as of the 20th day of
September, 2000.
GREEN MOUNTAIN POWER CORPORATION
By:/s/Xxxxx Xxxxxx Xxxxx
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Title:CFO
FLEET NATIONAL BANK,
Individually and as Agent
By:/s/ Xxxxxx X. Xxxx
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Title: Vice President
CITIZENS BANK OF MASSACHUSETTS
By:/s/C. Xxxxxx Xxxxxxxx
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Title:Vice President
