View:
As filed with the Securities and Exchange Commission on
October 23, 2000
File No. 70-9633
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1 TO
APPLICATION-DECLARATION
ON FORM U-1
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
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UNITIL CORPORATION
CONCORD ELECTRIC COMPANY
EXETER & HAMPTON ELECTRIC COMPANY
FITCHBURG GAS AND ELECTRIC LIGHT COMPANY
UNITIL POWER CORP.
UNITIL REALTY CORP.
UNITIL RESOURCES INC.
UNITIL SERVICE CORP.
6 Liberty Lane West
Hampton, New Hampshire 03842-1720
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(Name of companies filing this statement and
address of principal executive offices)
UNITIL CORPORATION
6 Liberty Lane West
Hampton, New Hampshire 03842-1720
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(Name of top registered holding company parent)
Mark H. Collin
Treasurer
UNITIL CORPORATION
6 Liberty Lane West
Hampton, New Hampshire 03842-1720
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(Name and address of agent for service)
The Commission is requested to mail copies of
all orders, notices and communications to:
William S. Lamb, Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019
On June 9, 2000, Unitil Corporation, a New Hampshire corporation ("Unitil")
and a registered holding company under the Public Utility Holding Company Act of
1935, as amended (the "Act"), and its wholly owned subsidiary companies, Concord
Electric Company ("Concord"), Exeter & Hampton Electric Company ("Exeter"),
Fitchburg Gas and Electric Light Company ("Fitchburg"), Unitil Power Corp.
("Unitil Power"), Unitil Realty Corp. ("Unitil Realty"), Unitil Resources, Inc.
("Unitil Resources") and Unitil Service Corp. ("Unitil Service" and, together
with Concord, Exeter, Fitchburg, Unitil Power, Unitil Realty and Unitil
Resources, the "Subsidiaries" or "Money Pool Participants"), received approval
under the Act from the Securities and Exchange Commission (the "Commission") for
the authorization and approval under Sections 6(b), 7, 9(a), 10 and 12(b) of the
Act and the Rules 43, 45 and 52 thereunder with respect to (i) short-term
borrowing by Unitil, (ii) short-term borrowings by Fitchburg and (iii) the
continued use of the system money pool ("Money Pool") by Unitil and the Money
Pool Participants, pursuant to the Cash Pooling and Loan Agreement (the "Pooling
Agreement") among Unitil and the Money Pool Participants dated as of February 1,
1985, as amended, Holding Co. Act Release No. 27182 (the "Order").
The Applicants hereby file this post effective amendment to their
application-declaration on Form U-1 relating to the above-referenced
transactions (the "Application-Declaration") under the Act in order to increase
certain authorized borrowing amounts authorized in the Order.
ITEM 1. DESCRIPTION OF PROPOSED TRANSACTIONS
The Applicants hereby submit this Application-Declaration for authorization
and approval under Sections 6(b), 7, 9(a), 10 and 12(b) of the Act and the Rules
43, 45 and 52 thereunder to increase Unitil's authorized short-term borrowing to
$35 million from $25 million. Since the Commission issued the Order, Unitil
reevaluated its financial needs and determined that the Company will require
authority to issue up to $35 million in short-term debt to meet its financing
needs prior to the completion of its 2001 long-term financing plans. As Unitil
finalized its long- term financing plans for 2001, it determined that additional
borrowing authority would be required to give it the financial flexibility
needed to successfully complete its upcoming financing plans. Additionally, with
rising energy costs, such an increase would assist it in meeting any short-term
payment timing differences that may occur in the future related to energy supply
costs. Unitil's Board of Directors authorized this short-term borrowing limit of
$35 million on September 29, 2000. (See Exhibit B-7)
Any borrowings undertaken pursuant to this authorization will remain
subject to the parameters set forth in the Order, except for the new aggregate
limit of $35 million. Applicants are not requesting an increase in borrowing
authority for Fitchburg.
1
A. Short-Term Borrowings by Unitil
Unitil expects to use the proceeds derived from short-term bank borrowings
authorized by this Commission pursuant to this application-declaration for: (i)
loans or advances to Subsidiaries through the Pooling Agreement, (ii) payment of
indebtedness, (iii) short-term cash needs which may arise due to payment timing
differences, (iv) greater flexibility in financial planning and (iv) other
general purposes.
When the Commission issued the Order, Unitil had unsecured lines of credit
with BankBoston, Fleet Bank New Hampshire and Citizens Bank New Hampshire; the
agreements are included as Exhibits B-2, B-3 and B-4 respectively. These letters
of credit and promissory notes are exemplary of forms of short-term notes
proposed to be used by Unitil./1 Unitil has also amended the Pooling Agreement
to allow Unitil Resources, Inc. to participate in the Money Pool, and the
amended Pooling Agreement is attached as Exhibit B-1.
B. Involvement with Exempt Wholesale Generators and Foreign Utility
Companies
The proposed transactions are not subject to Rules 53 and 54 under the Act.
Neither Unitil nor any Subsidiary thereof presently has, or as a consequence of
the proposed transactions will have, an interest in any exempt wholesale
generator ("EWG") or foreign utility company ("FUCO"), as those terms are
defined in Sections 32 and 33 of the Act, respectively. None of the proceeds
from the proposed transactions will be used to acquire any securities of, or any
interest in, an EWG or FUCO. Moreover, neither Unitil nor any of the
Subsidiaries is, or as a consequence of the proposed transactions will become, a
party to, and such entities do not and will not have any rights under, a
service, sales or construction contract with any affiliated EWGs or FUCOs except
in accordance with the rules and regulations promulgated by the Commission with
respect thereto. Consequently, all applicable requirements of Rule 53(a)-(c)
under the Act are satisfied as required by Rule 54 under the Act.
ITEM 2. FEES, COMMISSIONS AND EXPENSES
The fees, commissions and expenses of the Applicants expected to be paid or
incurred, directly or indirectly, in connection with the transactions described
above are estimated as follows:
- --------
1 Since the original notes were signed, Fleet Bank and BankBoston have
merged, with Fleet Bank as the surviving entity. The previous lines of credit
have also expired. Accordingly, Unitil has renegotiated its lines of credit and
as of October 9, 2000 had three lines of credit: a $16 million unsecured line of
credit from Fleet National Bank (attached as Exhibit B-8); a $5 million
unsecured line of credit from Citizens Bank New Hampshire (attached as Exhibit
B-9); and a $4 million unsecured line of credit from Sovereign Bank of New
England (attached as Exhibit B-10). These newer letters of credit and promissory
notes are substantively similar to the exemplary agreements provided in the
approved Application-Declaration.
2
Legal fees .......................................... $5,000
Miscellaneous .......................................... $3,000
Total .......................................... $8,000
ITEM 3. APPLICABLE STATUTORY PROVISIONS
Sections 6(b), 7, 9(a), 10 and 12(b) of the Act, and Rules 43, 45 and 52
thereunder, are directly applicable to this Application-Declaration.
ITEM 4. REGULATORY APPROVALS
No state or federal agency other than the Commission has jurisdiction with
respect to any of the proposed transactions other than as described in this
item.
ITEM 5. PROCEDURE
It is requested that the Commission issue and publish no later than
November 6, 2000, the requisite notice under Rule 23 with respect to this
Application-Declaration; such notice specifying December 1, 2000 as the date by
which comments may be entered and the date on which an order granting and
permitting the Application-Declaration to become effective may be entered by the
Commission and that the Commission enter not later than December 15, 2000, an
appropriate order granting and permitting this Application-Declaration to become
effective.
The Applicants respectfully request that appropriate and timely action be
taken by the Commission in this matter. No recommended decision by a hearing
officer or other responsible officer of the Commission is necessary or required
in this matter. The Division of Investment Management of the Commission may
assist in the preparation of the Commission's decision in this matter. There
should be no thirty-day waiting period between the issuance and effective date
of any order issued by the Commission in this matter, and it is respectfully
requested that any such order be made effective immediately upon the entry
thereof.
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS
a) Exhibits
Exhibit No. Description of Exhibit
----------- ----------------------
B-1 Cash Pooling and Loan Agreement, as amended.
B-2 Line of Credit and Promissory Note from
BankBoston dated July 29, 1999
(Previously Filed).
3
B-3 Line of Credit and Promissory Note from Fleet
Bank-New Hampshire dated July 30, 1998
(Previously Filed).
B-4 Line of Credit and Promissory Note from
Citizens Bank New Hampshire dated September
20, 1999 (Previously Filed).
B-5 Withdrawn.
B-6 Resolutions of Fitchburg Board of Directors
authorizing short-term borrowing limits
(Filed as Exhibit B-6 Form U-1 File No. 9053
and incorporated by reference herein).
B-7 Resolutions of Unitil Board of Directors
authorizing short-term borrowing limits dated
October 3, 2000.
B-8 Line of Credit and Promissory Note from Fleet
National Bank dated September 18, 2000.
B-9 Line of Credit and Promissory Note from
Citizens Bank New Hampshire dated August 30,
2000.
B-10 Line of Credit and Promissory Note from
Sovereign Bank of New England dated September
25, 2000.
D-1 New Hampshire Public Utilities Commission
Order No. 18,416 (Filed with the Commission
as Exhibit D-3 to Form U-1 File No. 70-8066
and incorporated by reference herein).
D-2 New Hampshire Public Utilities Commission
Order No. 17,373 (Filed with the Commission
as Exhibit D-4 to Form U-1 File No. 70-8066
and incorporated by reference herein).
D-3 Massachusetts Department of Public Utilities
Commission Order No. MDPU 89-66 (Filed with
the Commission as Exhibit D-5 to Form U-1
File No. 70-8066 and incorporated by
reference herein).
F-1 Opinion of Counsel (To be filed by
Amendment).
F-2 "Past Tense" Opinion of Counsel (To be filed
by Amendment).
G-1 Financial Data Schedule.
H-2 Proposed Form of Notice.
b) Financial Statements
No. Description of Financial Statement
FS-1 Unitil Corporation and Subsidiary Companies
Consolidated Actual and Pro Forma Balance
Sheets and Statement of Earnings, June 30,
2000.
FS-2 Unitil Corporation and Subsidiary Companies
Consolidated Actual Balance Sheets and
Statement of Earnings, June 30, 2000 (Filed
with the Commission with Unitil's 10-Q for
the period ended June 30, 2000 and
incorporated by reference herein).
FS-3 Unitil Corporation (Company Only) Actual
and Pro Forma Balance Sheets and Statement of
Earnings, June 30, 2000.
FS-4 Fitchburg Actual and Pro Forma Balance Sheet
and Statement of Earnings, June 30, 2000.
FS-5 Concord Electric Company Balance Sheet and
Statement of Earnings, September 30, 1999
(Previously Filed).
FS-6 Exeter & Hampton Electric Company Balance
Sheet and Statement of Earnings, September
30, 1999 (Previously Filed).
ITEM 7. INFORMATION AS TO ENVIRONMENTAL EFFECTS
None of the matters that are the subject of this Application-Declaration
involve a "major federal action" nor do they "significantly affect the quality
of the human environment" as those terms are used in Section 102(2)(C) of the
National Environmental Policy Act. None of the proposed transactions that are
the subject of this Application-Declaration will result in changes in the
operation of the Applicants that will have an impact on the environment. The
Applicants are not aware of any federal agency which has prepared or is
preparing an environmental impact statement with respect to the transactions
proposed herein.
4
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, the Applicants have duly caused this Application-Declaration to be signed
on their behalf by the undersigned thereunto duly authorized.
Dated: October 20, 2000
UNITIL CORPORATION
By: /s/ Mark H. Collin
-------------------
Name: Mark H. Collin
Title: Treasurer
5
CASH POOLING AND LOAN AGREEMENT
Dated as of February 1, 1985
UNITIL CORPORATION, a New Hampshire corporation ("UNITIL"), CONCORD
ELECTRIC COMPANY, a New Hampshire corporation ("Concord"), EXETER & HAMPTON
ELECTRIC COMPANY, a New Hampshire corporation ("Exeter"), UNITIL POWER CORP., a
New Hampshire corporation ("UNITIL Power"), and UNITIL SERVICE CORP., a New
Hampshire Corporation ("UNITIL Service") (UNITIL, Concord, Exeter, UNITIL Power
and UNITIL Service are hereinafter sometimes referred to individually as a
"Party" and collectively as the "Parties"), agree as follows:
Section 1. Certain Defined Terms.
As used in this Agreement and unless otherwise expressly indicated herein,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Advance" means an advance from the Cash Pool pursuant to Section
3 hereof and refers to a Bank Advance or a Surplus Advance.
"Bank Advance" means an Advance of Bank Borrowings.
"Bank Borrowings" means bank borrowings made by UNITIL and
contributed to the Cash Pool.
"Business Day" means a day of the year on which banks are not
required or authorized to close in Boston, Massachusetts.
"Cash Pool" means the pool of cash, comprising Surplus Funds and
Bank Borrowings, from which Advances are made.
"Surplus Advance" means an Advance of Surplus Funds.
"Surplus Funds" means surplus funds contributed to the Cash Pool
by the Parties.
Section 2. Contributions to the Cash Pool.
Funds contributed to the Cash Pool will be deposited in one or more common
bank deposit accounts established and maintained for the Cash Pool. Each Party
shall have an independent withdrawal authority with respect to the funds which
it has contributed to the Cash Pool and any earnings attributable to such funds
which are not funding an outstanding Advance.
Section 3. Advances
Section 3.01. (a) Each Party may request Advances from the Cash Pool from
time to time during the period from the date hereof until this Agreement is
terminated by written agreement of the Parties; provided, however, that the
aggregate amount of all Advances to be requested by any Party hereunder shall
not exceed the applicable borrowing limits, if any, established by such Party's
Board of Directors and any regulatory authority having jurisdiction over such
Party or established pursuant to any agreement binding upon such Party; and
provided, further, that UNITIL Power may not receive any Advances hereunder
until specifically authorized to receive such Advances by the New Hampshire
Public Utilities Commission ("NHPUC").
Section 3.02. To the extent possible, Advances will be made first from
Surplus Funds and second from Bank Borrowings.
Section 3.03. Surplus Advances will be made on a pro rata basis from the
Surplus Funds contributed to the Cash Pool by each Party in the proportion which
each Party's Surplus Funds in the Cash Pool bear to the total amount of Surplus
Funds in the Cash Pool.
Section 4. Interest on Advances.
Each Party receiving an Advance shall pay interest on the unpaid principal
amount of such Advance to the Cash Pool from the date of such Advance until such
principal amount shall be paid in full. The interest rate applicable on any day
to Surplus Advances shall be the daily rate of interest applicable to loans to
UNITIL by the bank designated from time to time by UNITIL as its "lead bank".
The interest rate applicable on any day to Bank Advances shall be calculated to
produce an aggregate interest charge on all such Bank Advances, at a rate which
shall be uniform for all such Bank Advances, equal to the net cost to UNITIL of
the Bank Borrowings used to fund such Bank Advances on such day.
Section 5. Repayment of Advances.
Each Party receiving an Advance shall repay the principal amount of such
Advance to the Cash Pool, together with all interest accrued thereon, within 365
days of the date on which such Advance was made, unless such day on which
payment is due is not a Business Day, in which case such payment shall be made
on the preceding Business Day.
Section 6. Bank Fees.
During the first year of this Agreement the costs of compensating balances,
commitment fees and fees paid to banks to maintain bank accounts and credit
lines for purposes of Bank Advances shall be allocated provisionally among the
Parties at the discretion of UNITIL Service. In each year thereafter such costs
and fees shall be allocated provisionally to each Party on a pro rata basis in
the proportion which each Party's aggregate principal amount of Advances for the
prior calendar year bore to the aggregate principal amount of all Advances for
such prior calendar year. Such costs and fees shall be retroactively reallocated
at the end of each calendar year on a pro rata basis in the proportion which
each Party's aggregate principal amount of Advances for such calendar year bore
to the aggregate principal amount of all Advances for such calendar year.
Section 7. Event of Default.
If any Party shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Party seeking to adjudicate it a bankrupt or
insolvent, then the other Parties may declare the unpaid principal amount of any
Advances to such Party, and all interest thereon, to be forthwith due and
payable and all such amounts shall forthwith become due and payable.
Section 8. Amendments, Waivers.
This Agreement may not be modified or amended in any respect except in
writing executed by the Parties. No provision of this Agreement shall be deemed
waived unless such waiver is set forth in writing and executed by the Party
making such waiver.
Section 9. Legal Responsibility.
Nothing herein contained shall render any Party liable for the obligations
of any other Party hereunder and the rights, obligations and liabilities of the
Parties are several in accordance with their respective obligations, and not
joint.
Section 10. Records and Administration.
UNITIL Service shall be responsible for the administration of this
Agreement and for ensuring that all relationships and arrangements between the
Parties hereunder are in compliance with the authorization and any applicable
limitations of Report and Supplemental Order No. 17,343 of the NHPUC. UNITIL
Service shall further be responsible for the determination of all applicable
interest rates and charges to be applied to Advances outstanding at any time
hereunder, shall maintain records of all Advances, interest charges and accruals
and interest and principal payments for purposes hereof, and shall prepare
regular reports thereof for the Parties.
Section 11. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New Hampshire.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
CONCORD ELECTRIC COMPANY
By:
---------------------------------------------
Peter J. Stulgis, Vice President
By:
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Charles J. Kershaw, Jr., Assistant Treasurer
EXETER & HAMPTON ELECTRIC COMPANY
By:
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Peter J. Stulgis, Vice President
By:
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Charles J. Kershaw, Jr., Assistant Treasurer
UNITIL Corporation
By:
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Peter J. Stulgis, Vice President
By:
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Charles J. Kershaw, Jr., Assistant Treasurer
UNITIL Power Corp.
By:
----------------------------------------------
Michael J. Dalton, President
By:
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Douglas K. Macdonald, Treasurer
UNITIL Service Corp.
By:
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Peter J. Stulgis, President
By:
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Charles J. Kershaw, Jr., Treasurer
FIRST AMENDMENT TO CASH POOLING
AND LOAN AGREEMENT
This First Amendment to Cash Pooling and Loan Agreement is dated as of the
15th day of December 1986.
WHEREAS, UNITIL Corporation, a New Hampshire corporation ("UNITIL"),
Concord Electric Company, a New Hampshire corporation ("Concord"), Exeter &
Hampton Electric Company, a New Hampshire corporation ("Exeter"). UNITIL Power
Corp., a New Hampshire corporation ("UNITIL Power") and UNITIL Service Corp., a
New Hampshire corporation ("UNITIL Service") are parties to a Cash Pooling and
Loan Agreement dated as of February 1, 1985 (the "Agreement"); and
WHEREAS, UNITIL has acquired all of the outstanding capital stock of UNITIL
Realty Corp., a New Hampshire corporation ("Realty Corp."); and
WHEREAS, Realty Corp. and each of the parties to the Agreement desire that
Realty Corp. become a party to the Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency is hereby acknowledged by each party to the others, the parties
hereto agree as follows:
1. Realty Corp. is hereby admitted as a party to the Agreement and shall be
considered a "Party" " defined therein for all purposes thereof. By its
execution hereof, Realty Corp. agrees to be bound by all provisions of the
Agreement as if it were originally a party thereto.
2. All provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties have caused this First Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
By:
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Peter J. Stulgis, Vice President
By:
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Charles J. Kershaw, Jr., Assistant Treasurer
EXETER & HAMPTON ELECTRIC COMPANY
By:
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Peter J. Stulgis, Vice President
By:
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Charles J. Kershaw, Jr., Assistant Treasurer
UNITIL Corporation
By:
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Peter J. Stulgis, Vice President
By:
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Charles J. Kershaw, Jr., Assistant Treasurer
UNITIL Power Corporation
By:
----------------------------------------------
Michael J. Dalton, President
By:
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Douglas K. Macdonald, Treasurer
UNITIL Realty Corp.
By:
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Charles J. Kershaw, Jr., President
By:
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Richard F. Gilmore, Treasurer
UNITIL Service Corp.
By:
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Peter J. Stulgis, President
By:
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Charles J. Kershaw, Jr., Treasurer
SECOND AMENDMENT TO
CASH POOLING AND LOAN AGREEMENT
This Second Amendment to the Cash Pooling and Loan Agreement to become
effective at the time of the Merger of Fitchburg Gas and Electric Light Company
into UNITIL Corporation and dated April 29, 1992.
WHEREAS, UNITIL Corporation, a New Hampshire corporation ("UNITIL"),
Concord Electric Company, a New Hampshire corporation ("Concord"), Exeter &
Hampton Electric Company, a New Hampshire corporation ("Exeter"), UNITIL Power
Corp., a New Hampshire corporation ("UNITIL Power"), UNITIL Realty Corp.; a New
Hampshire corporation ("UNITIL Realty") and UNITIL Service Corp., a New
Hampshire corporation ("UNITIL Service") are parties to a Cash Pooling and Loan
Agreement dated as of February 1, 1985, as amended as of December 15, 1986 (the
"Agreement"); and
WHEREAS, UNITIL has acquired through merger all of the outstanding Common
Stock of Fitchburg Gas and Electric Light Company, a Massachusetts corporation
("Fitchburg"); and
WHEREAS, UNITIL has become a registered holding company under provisions of
the Public Utility Holding Company Act of 1935 ("PUCHA"), and
WHEREAS, Fitchburg and each of the parties to the Agreement desire that
Fitchburg become a party to the Agreement and that UNITIL conform to the
provisions of the PUCHA.
NOW, THEREFORE in consideration of the foregoing, the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency is hereby acknowledged by each party to the others, the parties
hereto agree as follows:
1. Fitchburg is hereby admitted as a party to the Agreement and shall be
considered a "party" as defined therein for all purposes thereof. By its
execution hereof, Fitchburg agrees to be bound by all provisions of the
Agreement as if it were originally a parry thereto.
2. Effective as of the date of the Merger, UNIM agrees to no longer request
or receive Advances from the Cash Pool, but will receive all other benefits
associated with this arrangement and bound by all other provisions of this
Agreement;
3. Except as described above, all provisions of the Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, the Parties have caused this Second Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
UNITIL CORPORATION
By:
----------------------------------------------
MICHAEL J. DALTON, President
By:
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Gail S. Brown, Treasurer
CONCORD ELECTRIC COMPANY
By:
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Michael J. Dalton, President
By:
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Charles J. Kershaw, Jr., Treasurer
EXETER & HAMPTON ELECTRIC COMPANY
By:
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Michael J. Dalton, President
By:
----------------------------------------------
Charles J. Kershaw, Jr., Treasurer
FITCHBURG GAS AND ELECTRIC LIGHT COMPANY
By:
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Frank L. Childs, President
By:
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Charles J. Kershaw, Jr., Treasurer
UNITIL POWER CORP.
By:
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Michael J. Dalton, President
By:
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Charles J. Kershaw, Jr., Treasurer
UNITIL REALTY CORP.
By:
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Frank L. Childs, President
By:
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Charles J. Kershaw, Jr., Treasurer
UNITIL SERVICE CORP.
By:
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Peter J. Stulgis, President
By:
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Charles J. Kershaw, Jr., Treasurer
THIRD PROPOSED AMENDMENT TO
CASH POOLING AND LOAN AGREEMENT
This Third Amendment to the Cash Pooling and Loan Agreement is dated
_______________.
WHEREAS, UNITIL Corporation, a New Hampshire corporation ("UNITIL"),
Concord Electric Company, a New Hampshire corporation ("Concord"), Exeter &
Hampton Electric Company, a New Hampshire corporation ("Exeter"), Fitchburg Gas
and Electric Light Company, a Massachusetts Corporation, UNITIL Power Corp., a
New Hampshire corporation ("UNITIL Power"), UNITIL Realty Corp., a New Hampshire
corporation ("UNITIL Realty") and UNITIL Service Corp., a New Hampshire
corporation ("UNITIL Service") are parties to a Cash Pooling and Loan Agreement
dated as of February 1, 1985, as amended; and
WHEREAS, UNITIL has acquired all the outstanding capital stock of UNITIL
Resources, Inc., a New Hampshire Corporation ("UNITIL Resources"), and
WHEREAS, UNITIL Resources and each of the parties to the Agreement desire
that UNITIL Resources become a party to the Agreement;
NOW, THEREFORE in consideration of the foregoing, the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency is hereby acknowledged by each party to the others, the parties
hereto agree as follows:
1. UNITIL Resources is hereby admitted as a party to the Agreement and
shall be considered a "party" as defined therein for all purposes thereof. By
its execution hereof, UNITIL Resources agrees to be bound by all provisions of
the Agreement as if it were originally a party thereto.
2. All provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties have caused this Third Amendment to be
executed by their respective offers thereunto duly authorized, as of the date
first above written.
UNITIL CORPORATION
By:
----------------------------------------------
Michael J. Dalton, President
By:
----------------------------------------------
Gail A. Siart, Treasurer
CONCORD ELECTRIC COMPANY
EXETER & HAMPTON ELECTRIC COMPANY
FITCHBURG GAS AND ELECTRIC LIGHT COMPANY
By:
----------------------------------------------
Michael J. Dalton, President
By:
----------------------------------------------
Mark H. Collin, Treasurer
UNITIL POWER CORP.
By:
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James Daly, President
By:
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Mark H. Collin, Treasurer
UNITIL REALTY CORP.
By:
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Gail A. Siart, President
By:
----------------------------------------------
Mark H. Collin, Treasurer
UNITIL RESOURCES, INC.
By:
----------------------------------------------
George R. Gantz, President
By:
----------------------------------------------
Gail A. Siart, Treasurer
UNITIL SERVICE CORP.
By:
----------------------------------------------
Peter J. Stulgis, President
By:
----------------------------------------------
Mark H. Collin, Treasurer
Unitil Corporation
C E R T I F I C A T E
On motion duly made and seconded, the following vote was unanimously adopted:
VOTED: That, effective September 29, 2000, and until further action by
Directors in this respect, the total amount of short-term unsecured
obligations of this Company issued and outstanding at any one time
shall not exceed the sum of Thirty-five Million Dollars ($35,000,000);
and that the Chairman, President, any Vice President and Treasurer or
any Assistant Treasurer of this Company be and they are, and each of
them singly is, hereby authorized to borrow funds upon short-term
unsecured obligations of this Company not exceeding in the aggregate
the amount above set forth, bearing interest at such rates and
maturing at such time as may to them seem wise, such short-term
unsecured obligations to be signed on behalf of this Company by the
Treasurer or any Assistant Treasurer and countersigned by the
Chairman, President, any Vice President, or any two Directors.
I, Mark H. Colin, hereby certify that I am Secretary of Unitil Corporation;
that the foregoing is a true copy from the records of votes unanimously adopted
at a meeting of the Directors of said Company duly called and held September 29,
2000 at which meeting a quorum was present and acting throughout; and that the
said votes have not since been altered, amended or rescinded.
WITNESS my hand and the corporate seal of Unitil Corporation this 3rd day
of October, 2000.
[SEAL]
/s/__________________________
Secretary
Fleet
September 13, 2000
Mr. Mark H. Collin
Treasurer
Unitil Corporation
6 Liberty Lane West
Hampton, NH 03842-1720
Dear Mark:
We are pleased to advise you that Fleet National Bank (the "Bank") has
approved an unsecured line of credit in the maximum principal amount of Sixteen
Million Dollars ($16,000,000) (the "Line") for Unitil Corporation (the
"Borrower") subject to the Bank' s periodic review. Unless renewed or demanded,
this Line will expire on June 30, 2001 (the "Annual Review Date").
Coinciding with the establishment of the Line, the existing $8,000,000 line
of credit, as established via a letter agreement between the Borrower and Fleet
Bank-NH dated July 14, 1998 and executed on July 30, 1998 (the "$8,000,000
Line"), will be thereby eliminated and terminated, disallowing any future
advances under the $8,000,000 Line. Also coinciding with the establishment of
the Line, the existing $8,000,000 line of credit, as established via a letter
agreement between the Borrower and BankBoston dated July 29, 1999 (the "BB
$8,000,000 Line"), will be thereby eliminated and terminated, disallowing any
future advances under the BB $8,000,000 Line.
The Line shall immediately pay out the outstanding balance under the
$8,000,000 Line and the BB $8,000,000 Line and thereafter shall be available for
short term advances used for working capital and general corporate purposes.
This letter, together with the related Line of Credit Promissory Note of near or
even date (collectively, the "Loan Documents"), shall serve as our agreement
concerning the terms and conditions of the Borrower's borrowing under the Line.
Advances hereunder or renewal hereof will be made only if in the opinion of
the Bank there has been no material change of circumstances and if there exists
no default under any Loan Documents executed by the Borrower.
Borrowings under the Line will be priced at the rates the Bank quoted the
Borrower as:
(1) the Prime Rate (as hereinafter defined) presently 9.5%. or
(2) the "Money Market" rates as we may quote you from time to time in the
Bank's sole discretion.
The Borrower agrees that the Bank may make loan advances to the Borrower
upon verbal authority of any officer executing this Note on behalf of the
Borrower or any other officer of the Borrower who is authorized in writing to
borrow money from the Bank. As is typical for facilities of this type, the Bank
retains the right to refuse at any time any borrowing request hereunder.
Borrowings at Money Market Rates may be requested for maturities of 1 (one) day
up to a maximum of 90 (ninety) days, but shall not exceed the Annual Review
Date. All loans under the Line will be made by crediting the proceeds thereof to
the Borrower's demand deposit account maintained at the Bank, which account
should be established prior to any advances under the Line. Borrowings under the
Money Market option must be in minimum increments of $500,000. Borrowings under
the Money Market option are subject to the availability of funding sources and
the continued legality of the Bank offering such pricing option.
If, at any time, (i) the interest rate on the Line is a fixed rate (such as
a Money Market Rate), and (ii) Bank in its sole discretion should determine that
current market conditions can accommodate a prepayment request, Borrower shall
have the right, at any time and from time to time, upon at least ten (10)
Business Days' prior written notice to Bank, to prepay the loan (which is
bearing interest at a fixed rate) in whole (but not in part), and Borrower shall
pay to Bank a yield maintenance fee in an amount computed as follows: The
current rate for United States Treasury securities (bills on a discounted basis
shall be converted to a bond equivalent) with a maturity date closest to the
maturity date of the term chosen pursuant to the Fixed Rate Election as to which
prepayment is made, shall be subtracted from the "Cost of Funds" component of
the fixed rate in effect at the time of prepayment. If the result is zero or a
negative number, there shall be no yield maintenance fee. If the result is a
positive number, then the resulting percentage shall be multiplied by the amount
of the principal balance being prepaid. The resulting amount shall be divided by
360 and multiplied by the number of days remaining in the term chosen pursuant
to the Fixed Rate Election as to which the prepayment is made. Said amount shall
be reduced to present value calculated using the above-referenced United States
Treasury securities rate and the number of days remaining in the term chosen
pursuant to the Fixed Rate Election as to which the prepayment is made. The
resulting amount shall be the yield maintenance fee due to Bank upon prepayment
of the fixed rate loan. Each reference in this paragraph to "Fixed Rate
Election" shall mean the election by Borrower pursuant to the foregoing
paragraph of this Agreement. "Cost of Funds" as used herein shall mean the per
annum rate of interest which Bank is required to pay, or is offering to pay, for
wholesale liabilities of like tenor, adjusted for reserve requirements and such
other requirements as may be imposed by federal, state or local government and
regulatory agencies, as determined by Bank. If by reason of an event of default
Bank elects to declare the Line to be immediately due and payable or if demand
is made by the Bank, then any yield maintenance fee with respect to the Line
shall become due and payable in the same manner as though Borrower had exercised
such right of prepayment.
All Prime Rate and Money Market Rate borrowings shall be evidenced by the
Line of Credit Promissory Note in the form attached hereto and said promissory
note shall be executed by the Borrower prior to the Bank's initiation of the
Line. Each borrowing and the corresponding information will be recorded in our
computer data files. The Bank's corresponding records of debits and credits will
be additional evidence of borrowing, The Borrower authorizes the Bank to keep
the official record of borrowing, under these facilities and the Borrower agrees
that, absent manifest error, this record shall be conclusive and binding.
Interest shall be payable monthly in arrears. An unused fee payable
quarterly at the rate of one-quarter of one percent (0.25%) per annum shall
apply to the daily average of unadvanced amounts under the Line (based upon the
maximum available amount of $16,000,000). This fee shall be billed and payable
by the Borrower quarterly in arrears. Interest and fees are calculated on the
basis of actual days elapsed over a three hundred sixty (360) day banking year.
To induce the Bank to enter into this Agreement and to extend the Line, the
Borrower warrants, represents and covenants to the Bank that:
1. The Borrower has full power and authority to enter into this Agreement
and to borrow hereunder, to execute and deliver this Agreement, and any other
documents the purpose of which are to evidence or secure the Line and to incur
the obligations provided for herein and in the Loan Documents, all of which have
been duly authorized by all proper and necessary corporate or other action. Any
consent or approval of stockholders, or of any agency or of any public authority
or of any other party required as a condition to the legal validity of this
Agreement or the Loan Documents has been obtained.
2. This Agreement and the Loan Documents constitute the valid and legally
binding obligations of the Borrower enforceable in accordance with their terms;
provided, that the enforceability of any provisions in the Loan Documents, or of
any nights 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 Loan Documents is subject to general
principles of equity.
3. There is no charter provision or bylaw of the Borrower, and no
provision(s) of any existing mortgage, indenture, contract or agreement binding
on the Borrower or affecting any of the Borrower's property, which would
conflict with, be in contravention hereof, have a material adverse effect upon,
or in any way prevent the execution, delivery, or performance of the terms of
this Agreement or the Loan Documents.
4. No part of the proceeds received by the Borrower from the Line will be
used directly or Indirectly for the purpose of purchasing or carrying, or for
payment in full or in part of indebtedness which was incurred for the purposes
of purchasing or carrying any margin stock, as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve System.
5. None of the information with respect to the Borrower which has been
prepared and furnished by the Borrower to the Bank in connection with the
transactions contemplated hereby is false or misleading with respect to any
material fact, or omits to state any material fact necessary in order to make
the statements, therein not misleading.
6. The Borrower shall take all necessary action to maintain the Borrower's
existence, including the filing of required reports and, tax returns with the
Secretary of State of the State of New Hampshire and with the appropriate
authorities in any other state where required.
7. The Borrower shall promptly notify the Bank in writing of the occurrence
of any Event of Default under this Agreement (or any occurrence that would, with
the passage of time, constitute an Event of Default) or any other loan or
financing arrangement.
8. The Borrower shall comply in all material respects with all applicable
material laws, rules, regulations, and orders, provided, however , that Borrower
shall be entitled to contest the same in good faith so long as such action does
not have an adverse effect upon the Bank's rights hereunder or the security
furnished therefor. Without limiting in any manner the scope or generality of
the foregoing, the Borrower agrees to comply with all federal, state and other
laws and regulations regarding the generation, treatment, storage, disposal or
transportation of hazardous waste or materials, as defined under applicable
federal and state law; and agrees to defend, indemnify and hold the Bank
harmless from and against any and all liabilities, costs and expenses (including
reasonable attorneys' fees) attributable to or in any way connected with the
failure to comply with such laws and regulations.
If the foregoing satisfactorily sets forth the terms and conditions of the
Line, please indicate your agreement by executing and returning this letter and
the attached Line of Credit Promissory Note, the terms and conditions of which
are incorporated herein by reference.
We continue to enjoy working with Unitil Corporation and look forward to
further expanding upon our long-standing and mutually beneficial relationship.
FLEET NATIONAL BANK
___________________________ By: _____________________________
Witness Gregory J. Shaw, Its Duly
Authorized Vice President
The above terms are hereby understood and accepted as of this _____ day of
September, 2000:
UNITIL CORPORATION
___________________________ By: _____________________________
Witness Mark H. Collin, Its Duly
Authorized Treasurer
STATE OF NEW HAMPSHIRE
COUNTY OF ROCKINGHAM
The foregoing instrument was acknowledged before me this ____ day of
September, 2000, by Mark H. Collin, duty authorized Treasurer of Unitil
Corporation, a New Hampshire corporation, on behalf of same.
----------------------------
Notary Public
My Commission Expires: ___________
Notary Seal:
SANDRA L. WHITNEY, Notary Public
My Commission Expires April 26, 2005
LINE OF CREDIT PROMISSORY NOTE
$16,000,000 September 18, 2000
Manchester, New Hampshire
FOR VALUE RECEIVED, UNITIL CORPORATION, a New Hampshire corporation with a
principal place of business at 6 Liberty Lane West, Hampton, New Hampshire 03842
(the "Borrower") (the Borrower and all other persons primarily or secondarily
liable hereunder or in respect hereto are sometimes referred to herein as the
"Obligor"), hereby promises to pay, ON DEMAND, to the order of FLEET NATIONAL
BANK, a national banking association organized and existing under the laws of
the United States of America, with an office at 1155 Elm Street, Manchester, New
Hampshire 03101 (the "Bank") (the Bank and any subsequent transferee of this
Note, whether taking by negotiation or otherwise, are sometimes referred to
herein as the "Holder") at such place of business or such other place as may be
designated hereafter by the holder hereof, the principal sum of Sixteen Million
Dollars ($16,000,000) (or so much thereof as may be advanced or readvanced by
the Bank to the Borrower from time to time hereafter, such amounts defined as
the "Debit Balance" below), together with interest on each such advance from the
date thereof at a rate per annum equal to (a) the Prime Rate (as defined below)
or (b) the Money Market Rate (as defined below), as elected by the Borrower.
This Note is being executed and delivered in accordance with the terms of a
certain Letter Agreement of even date between the Borrower and the Bank (the
"Letter Agreement") and the documents defined therein as the "Loan Documents".
Until such time as this Note becomes due and payable, interest shall be
payable monthly in arrears commencing on that date thirty (30) days from the
date hereof (or on such other date as may be agreed upon by the Borrower and the
Bank to provide for a convenient payment date) and continuing on the
corresponding day of each succeeding month thereafter. All payments required
under this Note shall be made by the Borrower to the Bank at 1155 Elm Street,
Manchester, New Hampshire or such other place as the Bank may from time to time
specify in writing in lawful currency of the United States of America in
immediately available funds, without counterclaim, or setoff and free and clear
of, and without any deduction or withholding for any taxes or other payments.
The maximum principal amount outstanding under this Note shall be limited
to Sixteen Million Dollars ($16,000,000). Pursuant to the Letter Agreement,
there shall be due and payable from the Borrower to the Bank, and the Borrower
shall immediately pay to the Bank, without demand, any amount by which the Debit
Balance exceeds Sixteen Million Dollars ($16,000,000).
As used herein, "Prime Rate" shall mean the variable per annum rate of
interest so designated from time to time by the Bank as its Prime Rate. The
Prime Rate is a reference rate and does not necessarily represent the lowest or
best rate being charged to any customer. Each time the Prime Rate changes, the
interest rate hereunder shall change contemporaneously with such change in the
Prime Rate without notice or demand of any kind.
As used herein, "Money Market Rate" shall mean the overnight or term money
market facilities interest rate per annum which is communicated to the Borrower
by the Bank in respect of an advance evidenced hereby and which is accepted by
the Borrower for such advance evidenced hereby or which is so communicated and
is hereby deemed to be so accepted as a result of the Borrower's failure either
to communicate its nonacceptance thereof or to repay such advance on the date
when made.
All amounts outstanding under the Line which the Borrower does not elect to
be subject to the Money Market Rate shall bear interest at a variable annual
rate equal to the Borrower's Prime Rate as provided hereinabove. Notwithstanding
the foregoing provisions, the Borrower may not convert existing advances
hereunder to Money Market Advances if at any time either an Event of Default or
a payment Default exists under the Loan Documents. As used herein, "Money Market
Advance" shall mean any amount outstanding under the Line as to which the
Borrower has elected a Money Market Rate.
Interest at the Prime Rate and the Money Market Rate shall be billed and
payable monthly in arrears, calculated on the basis of actual days elapsed over
a three hundred sixty (360) day banking year on the unpaid principal balance
outstanding from time to time. The Borrower shall pay the Bank an unused fee
equal to one-quarter of one percent (0.25%) per annum of the daily average of
unadvanced amounts under the Line (based upon the maximum available amount of
$16,000,000), determined and payable quarterly in arrears through and until the
Annual Review Date. All payments shall be made in lawful currency of the United
States of America in immediately available funds. The Bank is authorized to
charge the Borrower's deposit account(s) maintained with the Bank to effect any
payment on this Note.
The Following Business Day Convention shall be used to adjust any relevant
date if that date would otherwise fall on a day that is not a Business Day. For
the purposes herein, the term Following Business Day Convention shall mean that
an adjustment will be made if any relevant date would otherwise fall on a day
that is not a Business Day so that the date will be the first following day that
is a Business Day. "Business Day" means, in respect of any date that is
specified in this Loan Agreement or any Loan Document to be subject to
adjustment in accordance with the Following Business Day Convention, a day on
which commercial banks settle payments in (i) London, if the payment obligation
is calculated by reference to LIBOR, or (ii) New York, if the payment obligation
is calculated by reference to Prime Rate, CD Rate, or COF Rate. All payments
hereunder or under any Loan Documents hereunder shall be adjusted in accordance
with the Following Business Day Convention. All payments under the Loan
Documents shall be applied first to the payment of all fees, expenses and other
amounts due to the Bank (excluding principal and interest), then to accrued
interest, and the balance on account of outstanding principal; provided,
however, that after demand payments will be applied to the obligations of
Borrower to Bank as Bank determines in its sole discretion.
Notwithstanding anything herein to the contrary, in the event that the
interest rate hereunder, as aforesaid, violates any applicable usury or similar
statute, the interest rate shall then automatically be deemed to be the highest
rate of interest then permitted.
The Borrower agrees that the Bank may make loan advances to the Borrower
upon verbal authority (which, if the Bank so requires, shall be followed by
written confirmation) of any officer executing this Note on behalf of the
Borrower or any other officer of the Borrower who is authorized in writing to
borrow money from the Bank and may deliver such advances by direct deposit to
any deposit account of the Borrower with the Bank or otherwise as may be
authorized in the Letter Agreement. All such advances shall represent binding
obligations of the Borrower.
The Borrower's "Debit Balance" shall mean the debit balance in an account
on the books of the Bank, maintained in the form of a ledger card, computer
records or otherwise in accordance with the Bank's customary practice and
appropriate accounting procedures wherein there shall be recorded the principal
amount of all advances made by the Bank to the Borrower, all principal payments
made by the Borrower to the Bank hereunder, and all other appropriate debits and
credits (the "Loan Account"). The Bank shall render to the Borrower a statement
of account with respect to the Loan Account on a monthly basis. Such statement
shall indicate the Borrower's then current Debit Balance and any interest
amounts due and payable from the Borrower to Bank. Such statement may be based
on estimates of the principal amount outstanding and the interest rate for the
applicable payment period. Any required adjustments between such estimates and
actual amounts shall be reflected in subsequent statements.
The Borrower acknowledges that this Note is to evidence the Borrower's
obligation to pay the Debit Balance, plus interest, as determined from time to
time and that it shall continue to do so despite the occurrence of intervals
when no Debit Balance exists because the Borrower has paid the previously
existing Debit Balance in full.
This Note is a DEMAND OBLIGATION. At the option of the Bank, this Note
shall become immediately due and payable in full, without further demand or
notice, on the earlier of (i) demand by the Bank, or (ii) the occurrence of an
Event of Default (as defined below).
If the entire amount of any required principal and/or interest is not paid
in full within ten (10) days after the same is due, Borrower shall pay to Bank a
late fee equal to five percent (5%) of the required payment. Upon default
(whether or not Bank has accelerated payment of this Note), upon demand or after
maturity or after judgment has been rendered on this Note, the unpaid principal
of all advances shall, at the option of Bank, bear interest at a rate which is
two percentage (2%) points per annum greater than that which would otherwise be
applicable. The Borrower agrees to pay on demand all reasonable out-of-pocket
costs of collection hereof, including reasonable attorneys' fees, whether or not
any foreclosure or other action is instituted by the Holder in its discretion.
The Borrower hereby acknowledges that its liability to the Bank under the
Line is a DEMAND OBLIGATION and that nothing herein shall alter or otherwise
affect the ability of the Bank to demand payment in full of the same. Subject to
the foregoing, if any of the following events of default shall occur ("Event of
Default"): (a) default in the payment or performance of any of the Obligations
or of any obligations of any Obligor to others for borrowed money or in respect
of any extension of credit or accommodation; (b) failure of any representation
or warranty, statement or information in any documents or financial statements
delivered to the Holder for the purpose of inducing it to make or maintain any
loan under this Note to be true and correct; (c) failure of the undersigned to
file any tax return, or to pay or remit any tax, when due, unless the
undersigned contests the particular tax in good faith, and also maintains
adequate reserves to pay such tax, if unsuccessful in its action to contest; (d)
failure to furnish the Holder promptly on request with financial information
about, or to permit inspection by the Holder of books, records and properties to
any Obligor; (e) any Obligor generally not paying its debts as they become due;
(f) death, dissolution, termination of existence, insolvency, business failure,
appointment of a receiver or other custodian of any part of the property of,
assignment for the benefit of creditors by, or the commencement of any
proceedings (except for an involuntary bankruptcy petition against any Obligor
to which such Obligor files a proper answer thereto pursuant to Section 303(d)
of the Bankruptcy Code (11 USC 303(d)) within ten (10) days of receipt of notice
of said proceeding, which answer shall include a request that petitioning
creditors post adequate bond under Section 303(e) (11 USC 303(e)) under any
bankruptcy or insolvency laws by or against, any Obligor; (g) a material adverse
change in the condition or affairs (financial or otherwise) of any Obligor which
in the opinion of the Holder will impair its security or increase its risk
including but not limited to any reduction of any Obligor's tangible net worth
by more than 10% from its level at the previous fiscal year end or the
occurrence of operating losses for any consecutive twelve month period; then the
Holder shall give written notice of such default and if such default is not
cured within five business days of delivery of such notice then immediately and
automatically with respect to any Defaults set forth in clauses (e) and (f)
above, and thereupon or at any time thereafter with respect to each other
Default (such Default not having been previously cured), at the option of the
Holder, all Obligations of the Obligor shall become immediately due and payable
without demand, and, if there is any collateral for the Obligations, the Holder
shall then have in any jurisdiction where enforcement hereof is sought, in
addition to all other rights and remedies the rights and remedies of a secured
party under the Uniform Commercial Code as in effect in the State of New
Hampshire.
As used herein, "Obligation" means any obligation hereunder or otherwise of
any Obligor to the holder whether direct or indirect, absolute or contingent,
due or to become due, now existing or hereafter arising.
Borrower hereby grants to the Bank, a continuing lien, security interest
and right of setoff as security for all liabilities and obligations to the Bank,
whether now existing or hereafter arising, upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of the Bank or any entity under the control of
FleetBoston Financial Corporation, or in transit to any of them. At any time,
without demand or notice (any such notice being expressly waived by Borrower),
the Bank may set off the same or any part thereof and apply the same to any
liability or obligation of the Borrower even though unmatured and regardless of
the adequacy of any other collateral securing the Line. ANY AND ALL RIGHTS TO
REQUIRE THE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH SECURES THE LOANS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH
RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
BORROWER AND BANK (BY ACCEPTANCE OF THIS NOTE) MUTUALLY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM BASED HEREIN, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE 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, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF BANK RELATING TO THE
ADMINISTRATION OF THE LOANS OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT
NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY
LAW, BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. BORROWER CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF BANK HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT BANK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR BANK TO
ACCEPT THIS NOTE AND MAKE THE LOAN.
No delay or omission on the part of the Holder in exercising any right,
privilege or remedy shall impair such right, privilege or remedy or be construed
as a waiver thereof or of any other right, privilege or remedy. No waiver of any
right, privilege or remedy or any amendment to this Note shall be effective
unless made in writing and signed by the Holder. Under no circumstances shall an
effective waiver of any right, privilege or remedy on any one occasion
constitute or be construed as a bar to the exercise of or a waiver of such
right, privilege or remedy on any future occasion. The acceptance by the Holder
hereof of and payment after any default hereunder shall not operate to extend
the time of payment of any amount then remaining unpaid hereunder or constitute
a waiver of any rights of the Holder hereof under this Note.
This Note and the Loan Documents together are intended by the parties as
the final, complete and exclusive statement of the transactions evidenced by
this Agreement and Loan Document. All prior or contemporaneous promises,
agreements and understandings, whether oral or written, are deemed to be
superceded by the Loan Documents, and no party is relying on any promise,
agreement or understanding not set forth in the Loan Documents. The Loan
Documents may not be amended or modified except by a written instrument
describing such amendment or modification executed by Borrower and Bank.
All rights and remedies of the Holder, whether granted herein or otherwise,
shall be cumulative and may be exercised singularly or concurrently, and the
Holder shall have, in addition to all other rights and remedies, the rights and
remedies of a secured party under the Uniform Commercial Code of New Hampshire.
The Borrower waives, to the fullest extent permitted by law, presentment,
notice, protest and all other demands and notices and assent (1) to any
extension of the time of payment or any other indulgence, (2) to any
substitution, exchange or release of collateral, and (3) to the release of any
other person primarily or secondarily liable for the obligations evidenced
hereby.
Bank may at any time pledge or assign all or any portion of its rights
under the Loan Documents including any portion of the promissory note to any
twelve (12) Federal Reserve Banks organized under Section 4 of the Federal
Reserve Act, 12 U.S.C. Section 341. No such pledge or assignment or enforcement
thereof shall release Bank from its obligations under any of the Loan Documents.
Bank shall have the unrestricted right at any time or from time to time,
and without Borrower'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 Borrower 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 Bank shall deem necessary to effect the foregoing. In
addition, at the request of Bank and any such Assignee, Borrower shall issue one
or more new promissory notes, as applicable, to any such Assignee and, if Bank
has retained any of its rights and obligations hereunder following such
assignment, to 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 Bank prior to such assignment and shall reflect the amount of the respective
commitments and loans held by such Assignee and bank after giving effect to such
assignment. Upon the execution and delivery of appropriate assignment
documentation, amendments and any other documentation required by Bank in
connection with such assignment, and the payment by Assignee of the purchase
price agreed to by Bank, and such Assignee, such Assignee shall be a party to
this Agreement and shall have all of the rights and obligations of 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 Bank pursuant to the assignment documentation
between Bank and such Assignee, and Bank shall be released from its obligations
hereunder and thereunder to a corresponding extent. Borrower may furnish any
information concerning Borrower in its possession from time to time to
prospective Assignees, provided that Bank shall require any such prospective
Assignees to agree in writing to maintain the confidentiality of such
information.
Bank shall have the unrestricted right at any time and from time to time,
and without consent of or notice to Borrower, to grant to one or more banks or
other financial institutions (each a "Participant") participating interests in
any or all of the loans held by Bank hereunder. In the event of any such grant
by Bank of a participating interest to a participant, whether or not upon notice
to Borrower, Bank shall remain responsible for the performance of its
obligations hereunder and Borrower shall continue to deal solely and directly
with Bank in connection with Bank's rights and obligations hereunder. Bank may
furnish any information concerning the Borrower in its possession from time to
time to prospective Participants, provided that Bank shall require any such
prospective Participant to agree in writing to maintain the confidentiality of
such information.
The Borrower shall pay on demand all expenses of the Bank in connection
with the preparation, administration, default, collection, waiver or amendment
of loan terms, or in connection with Bank's exercise, preservation or
enforcement of any of its rights, remedies or options hereunder, including,
without limitation, fees of outside legal counsel or the allocated costs of
in-house legal counsel, accounting, consulting, brokerage or other similar
professional fees or expenses and any fees or expenses associated with travel or
other costs relating to any appraisals or examinations conducted in connection
with the loan or any collateral therefor, and the amount of all such expenses
shall, until paid, bear interest at the rate applicable to principal hereunder
(including any default rate) and be an obligation secured by any collateral.
Upon receipt of an affidavit of an officer of Bank as to the loss, theft,
destruction, or mutilation of this Promissory Note or any other security
documents which are not of public record, and in the case of any such loss,
theft, destruction or mutilation, upon cancellation of such note or other
security documents, Borrower will issue, in lieu thereof, a replacement note or
other security document in the same principal amount thereof and otherwise of
like tenor.
All agreements between Borrower and 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 Bank for the use or the forbearance of indebtedness
evidenced hereby exceed the maximum permissible under 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 this document 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 Borrower and Bank in the execution, delivery and
acceptance of this document 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 limits of
such validity, and if under or from circumstances whatsoever Bank should ever
receive as interest in an amount which would exceed the highest lawful rate,
such amount 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 Borrower
and Bank.
This Note and the provisions hereof shall be binding upon the Borrower and
the Borrower's heirs, administrators, executors, successors, legal
representatives and assigns and shall inure to the benefit of the Holder, the
Holder's heirs, administrators, executors, successors, legal representatives and
assigns.
This Note may not be amended, changed or modified in any respect except by
a written document which has been executed by each party. This Note constitutes
a New Hampshire contract under seal and all rights and obligations hereunder,
including matters of construction, validity and performance, shall be governed
by the laws of the State of New Hampshire (excluding the laws applicable to
conflicts or choice of law).
IN WITNESS WHEREOF, the Borrower, acting by and through its duly authorized
officers, has executed this Promissory Note on this 18th day of September, 2000.
UNITIL CORPORATION
_________________________ By: _________________________________________________
Witness Anthony J. Baratta, Jr., Its Duly Authorized Sr.
Vice President and Chief Financial Officer
UNITIL CORPORATION
_________________________ By: _________________________________________________
Witness Mark H. Collin, Its Duly Authorized
Treasurer
STATE OF NEW HAMPSHIRE
COUNTY OF ROCKINGHAM
The foregoing instrument was acknowledged before me this 18th day of
September, 2000, by Anthony J. Baratta, Jr., duly authorized Senior Vice
President and Chief Financial Officer of Unitil Corporation, a New Hampshire
corporation, on behalf of same.
-----------------------------
Notary Public
My Commission Expires:
Notary Seal:
STATE OF NEW HAMPSHIRE
COUNTY OF ROCKINGHAM
The foregoing instrument was acknowledged before me this 18th day of
September, 2000, by Mark H. Collin, duly authorized Treasurer of Unitil
Corporation, a New Hampshire corporation, on behalf of same.
-----------------------------
Notary Public
My Commission Expires:
Notary Seal:
CITIZENS BANK NEW HAMPSHIRE
August 30, 2000
Mark H. Collin, Treasurer
UNITIL CORP.
6 Liberty Lane West
Hampton, New Hampshire 03842
Dear Mark:
This letter agreement sets forth the terms under which Citizens Bank New
Hampshire (the "Bank") will make available to UNITIL Corporation (the
"Borrower") a Line of Credit for up to $5,000,000.00 until August 31, 2001 (the
"Line").
Any loan under this Line will bear interest (computed on a 360 day per year
basis) at the Alternate Base Rate as in effect on the date of the particular
loan. For this Line, Alternate Base Rate means, for each loan, the London
Interbank Offered Rate ("LIBOR") for the term of the loan [not to exceed ninety
(90) days] as in effect on the date of the loan plus four-tenths of one percent
per annum.
Each loan must be not less than $500,000.00. This Line is available subject
to Bank's continued satisfaction with the financial condition of Borrower and
its subsidiaries and to no substantive changes in monetary or governmental
regulations. Borrower shall deliver to Bank: annual report and 10K report by
April 30; and 10-Q by ninety (90) days after the close of each calendar quarter.
The Borrower shall establish and fund an account with the Bank which the
Bank may debit for payments due, quarterly fees, and other amounts due. Loan
advances will be made upon telephone request by officers designated in writing
by Borrower and shall be deposited by Bank into the account.
Loans will be evidenced by a Promissory Note in the form attached hereto.
Each loan and the corresponding information (date, amount, maturity date, and
interest rate) will be recorded the date of this telephone request. Bank's
corresponding advices of credit and debit will be additional evidence of loans
in the format described above, and Borrower agrees that absent manifest error
this record shall be conclusive and binding.
Borrower acknowledges that Bank has disclosed the following finance charges
in connection with this loan: interest at the rate set forth above and in the
Note.
If the foregoing satisfactorily sets forth the terms and conditions of this
lending arrangement, please indicate your acceptance thereof by executing and
returning the attached copy of this letter and the attached Promissory Note.
We are pleased to provide this Line of Credit and look forward to the
ongoing development of our relationship.
Sincerely,
CITIZENS BANK NEW HAMPSHIRE
By:__________________________________
Its:
AGREED AND ACCEPTED:
UNITIL CORPORATION
By:________________________________________
Mark H. Collin, Treasurer
By:________________________________________
Anthony Baratta, Chief Financial Officer
PROMISSORY NOTE
$5,000,000.00 Portsmouth, NH
August 30, 2000
FOR VALUE RECEIVED, the undersigned UNITIL CORPORATION hereby promises to
pay to the order of CITIZENS BANK NEW HAMPSHIRE (the "Bank"), at the office of
the Bank in Portsmouth, New Hampshire, the aggregate principal amount of all
loans made by the Bank to the undersigned pursuant to the Letter Agreement
between the Bank and the undersigned dated August 30, 2000, as shown in the
schedule attached hereto (the "Note Schedule"), together with interest on each
loan from the date such loan is made until the maturity thereof at the
applicable rate set forth in the Note Schedule. The principal amount of each
loan shall be payable on the maturity date of such loan as indicated in the Note
Schedule, and, in any event, the aggregate outstanding principal amount of all
loans hereunder shall be due and payable on August 31, 2001. Interest on the
principal amount of each loan shall be payable on the same date as the principal
amount is due.
All loans under this Note will bear interest (computed on a 360 day per
year basis) at the Alternate Base Rate as in effect from time to time. Alternate
Base Rate means, for each loan, the London Interbank Offered Rate ("LIBOR") for
the term of the loan [which must be selected by the undersigned at the time of
the Loan and shall not exceed ninety (90) days] as in effect on the date of the
loan plus four-tenths of one percent per annum. All payments shall be made in
lawful currency of the United States of America in immediately available funds.
Principal not paid when due shall bear interest from the maturity date,
payable on demand and compounded monthly, at a rate per annum equal to two
percent above the Alternate Base Rate.
Any principal paid prior to its maturity date shall nevertheless bear
interest at the designated rate through the maturity date which interest shall
be paid as a prepayment fee on or before the maturity date.
If any of the following events of default shall occur ("Defaults"): (a)
default in the payment or performance of any of the Obligations or of any
obligation of the Obligor or its subsidiaries to others for borrowed money or in
respect of any extension of credit or accommodation which shall continue uncured
for any applicable grace period; (b) failure of any material representation or
warranty, statement, or information in any documents or financial statements
delivered to the Bank for the purpose of inducing it to make or maintain any
loan under this Note to be true and correct; (c) failure of the undersigned to
file any tax return, or to pay or remit any tax, when due, except for taxes
which UNITIL Corporation is actively disputing and as to which UNITIL
Corporation is maintaining adequate reserves in accordance with Generally
Accepted Accounting Principles; (d) failure to furnish the holder promptly on
request with financial information about or to permit reasonable inspection by
the holder of books, records and properties of the Obligor; (e) the Obligor or
its subsidiaries generally not paying its debts as they become due; (f)
dissolution, termination of existence, insolvency, business failure, appointment
of a receiver or other custodian of any part of the property of, assignment for
the benefit of creditors by, or the commencement of any proceedings under any
bankruptcy or insolvency laws by or against, the Obligor or its subsidiaries;
(g) change in the condition or affairs (financial or otherwise) of the Obligor
or its subsidiaries which in the opinion of the holder will impair its security
or increase its risk; thence immediately and automatically with respect to any
Defaults set forth in clauses (e) and (f) above, and thereupon or at any time
thereafter, with respect to each other Default (such Default not having been
previously cured), at the option of the holder, all Obligations of the
undersigned shall become immediately due and payable without notice or demand
and Bank shall have no further duty to make any additional loans.
The Obligor waives presentment, demand, notice of dishonor, protest and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence under this Note.
As used herein "Obligor" means any person primarily or secondarily liable
hereunder or in respect hereto; "Obligation" means any obligation hereunder or
otherwise of any Obligor to the holder, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising; and
"holder" means the payee or any endorsee of this Note who is in possession of
it, or the bearer hereof if this Note is at the time payable to the bearer.
No delay or omission on the part of the holder in exercising any right
hereunder shall operate as a waiver of such right or of any other right under
this Note. No waiver of any right shall be effective unless in writing and
signed by the holder nor shall a waiver on one occasion be constructed as a bar
to or waiver of any such right or any future occasion.
The undersigned will pay on demand all costs of collection and attorneys'
fees paid or incurred by the holder in enforcing the Obligations of the Obligor.
Upon any advance under this Note, the Obligor is immediately required to provide
an executed copy of the Note including the date of the advance, the principal
amount of the advance, the maturity date, and the interest rate.
This instrument shall have the effect of an instrument executed under seal
and shall be governed by and construed in accordance with the laws of the State
of New Hampshire.
UNITIL CORPORATION
By:________________________________________
Mark H. Collin, Treasurer
By:________________________________________
Anthony Baratta, Chief Financial Officer
SCHEDULE TO PROMISSORY NOTE
OF UNITIL CORPORATION
Date of Principal Maturity Interest Date and Notation
Loan Amount of Date Rate Amount of Made by
- ---- Loan ---- ---- Payment -------
---- Received
--------
Sovereign
SOVEREIGN BANK NEW ENGLAND
A Division of Sovereign Bank
September 25, 2000
Mr. Mark Collin, Vice President
Unitil Corp.
6 Liberty Lane West
Hampton, NH 03842-1720
Dear Mark:
We are pleased to advise you that Sovereign Bank (the "Bank") has approved an
unsecured line of credit in the maximum principal amount of Four Million Dollars
($4,000,000) (the "Line") for Unitil Corporation (the "Borrower") subject to the
Bank's periodic review. Unless renewed, this line will expire on June 30, 2001
(the "Annual Review Date").
This letter, together with the related Line of Credit Promissory Note (the
"Note") of near or even date (collectively, the "Loan Documents"), shall serve
as our agreement concerning the terms and conditions of your borrowing under the
Line.
1) Principal Advances. The Borrower may request principal advances from the Bank
from time to time, provided that any given principal advance shall not cause the
Borrower's liability to exceed $4,000,000.00. Such request shall be granted on
the day such request is received, provided that a) such request is received by
2:00 p.m. on a Bank business day, and b) the Bank is reasonably satisfied that
the conditions set forth in this Agreement have been satisfied. The Bank shall
credit the amount of the request to the designated account of the Borrower in
immediately payable funds.
Advances hereunder will be made only if in the opinion of the Bank there has
been no negative material change of circumstances and if there exists no default
under any loan documentation executed by you. The Bank retains the right to
refuse at any time any borrowing request hereunder.
All loans will be made by crediting the proceeds thereof to your demand deposit
account maintained at the Bank, which account should be established prior to any
advances under the line.
2) Interest. Borrowings under the Line accrue interest at the following rates:
(1) Our "Prime Rate" as announced from time to time; or
(2) a fixed rate based on an index plus a margin to be determined by the Bank
from time to time. Such indexes shaft be the "LIBOR rate", as set forth in the
Note, or our "Cost of Funds Rate", as set forth in the Note.
Unless the LIBOR or Cost of Funds rate is specifically elected, the Prime Rate
shall apply.
Each rate will be as determined by the Bank by 10:00 a.m. on the day of the
requested borrowing. Each borrowing under this line by you must specify the
amount of the loan requested, the rate requested and the maturity requested.
Borrowings at LIBOR rates may be requested for maturities of one, two, or three
month periods, but no such period shall exceed the Annual Review Date.
Borrowings at the Cost of Funds rate may be requested for maturities of 1 (one)
or 7 (seven) day periods, but no such periods shall exceed the Annual Review
Date.
Borrowings under the LIBOR or Cost of Funds rate options must be in minimum
increments of $1,000,000 or greater multiples of $100,000, and your ability to
prepay such borrowings is subject to a requirement that you compensate us for
any funding losses and other costs (including lost profits) incurred as a result
of such prepayment, as set forth in the Note.
Borrowings at LIBOR or Cost of Funds rates are subject to the availability of
funding sources and the continued legality of our offering such pricing option.
3) Borrowing Rate Option. The Borrower may, from time to time, elect to adjust
the interest rate applicable to the Borrower's outstanding principal balance
from the Prime Rate to either of the rates designated at the Bank's discretion
as of such date as its LIBOR or Cost of Funds rates. The LIBOR and Cost of Funds
rates shall be the sum of such respective index (as defined in the Note) plus a
margin to be chosen by the Bank. The LIBOR and Cost of Funds rates for any given
day on which the Bank is open for regular banking business shall be available
from the Bank by 10:00 a.m. on each such day.
Should the Borrower elect to have the Daily Borrowing Rate Option
available, which shall include daily fax notification of the then-available
rate, a monthly service fee of $300 shall be charged to the Borrower by the Bank
for any month during which such availability is elected.
4) Bank Records Conclusive. All borrowings shall be evidenced by the Line of
Credit Promissory Note in the form attached and requiring execution prior to
initiation of the Line. Each borrowing and the corresponding information will be
recorded in our computer data files. Our corresponding records of debits and
credits will be additional evidence of borrowings. You authorize us to keep the
official record or borrowing, under these facilities and you agree that, absent
manifest error, this record shall be conclusive and binding.
5) Default Rate. Upon demand or Default or after maturity or after judgment has
been rendered on this Loan Agreement, or in the Event of Default as defined in
the Note, Borrower's right to select pricing options shall cease and the unpaid
principal of all advances shall, at the option of the Bank, bear interest at a
rate which is four (4) percentage points per annum greater than the Prime Rate
("Default rate").
6) Automatic Payments. Borrower hereby authorizes Bank to automatically deduct
from Borrower's account designated for such purpose the amount of any loan
payment ("Automatic Payments"). If the funds in the account are insufficient to
cover any payment, Bank shall not be obligated to advance funds to cover the
payment. At any time and for any reason, Borrower or Bank may voluntarily
terminate Automatic Payments.
7) Conditions of Lending.
Initial Loan. The agreement of the Bank to provide the Line hereunder is
subject to the following conditions precedent:
(A) The Bank shall have received a certified copy of all corporate action
taken by the Borrower to authorize the execution, delivery, and performance of
the Loan Documents and the borrowing by it hereunder, and such other papers as
the Bank shall reasonably require on the form or forms provided by the Bank.
(B) Should the Bank so require, the Bank shall have received an opinion of
counsel to the Borrower, in form and substance satisfactory to the Bank and to
McLane, Graf, Raulerson & Middleton, P.A., counsel to the Bank, as to the matter
referred to in paragraphs 9 (A), (B), (C) and (F) hereof, and further to the
effect that this Agreement has been duly authorized, executed, and delivered and
is a legal, valid, binding, and enforceable agreement of the Borrower.
(C) Any other conditions precedent required under the Bank's Commitment
Letter for this loan.
8) Covenants. So long as this Line shall be outstanding and until the payment in
full of all sums outstanding hereunder and the performance of all other
obligations of the Borrower hereunder, the Borrower agrees that, unless the Bank
shall otherwise consent in writing:
A. Financial Reportings. The Borrower shall provide to the Bank:
(1) within ten (10) days of filing for each fiscal year of the Borrower,
copies of the Borrower's 10K filing and Annual Report for such fiscal year.
(2) within ten (10) days of filing for each quarter of each fiscal year of
the Borrower, copies of Borrower's 10-Q filing for such quarters.
B. Reorganizations, Acquisitions; Change of Name. The Borrower will not,
and will not permit any subsidiary to, (i) merge or consolidate with or into any
corporation, or sell, lease, transfer, or otherwise dispose of all or any
substantial part of its assets (except in the ordinary course of business),
whether now owned or hereafter acquired, or (ii) change its corporate name.
C. Notice of Default. The Borrower shall promptly notify the Bank of any
condition or event which constitutes, or would constitute with the passage of
time or giving of notice or both, an Event of Default, and promptly notify the
Bank of any changes in the financial condition of the Borrower which,
individually or cumulatively, may result in a material adverse change in the
financial condition of the Borrower.
D. Compliance with Laws and Regulations. The Borrower shall comply with all
applicable laws, ordinances, regulations, and other requirements of any
jurisdiction or agency having or claiming authority over the Borrower or any
transaction of the Borrower or any transaction arising pursuant to this
Agreement.
9) Representations and Warranties. Except as specifically permitted by the Bank
in writing the Borrower represents and warrants to Bank, and such
representations and warranties shall be continuing representations and
warranties so long as any amounts shall be outstanding pursuant to this
Agreement, as follows:
A. Organization. Borrower has being duly incorporated and organized and is
existing as a corporation in good standing under the laws of New Hampshire, and
is duly qualified and in good standing as a foreign corporation in those
jurisdictions where the conduct of its business or the ownership of its
properties requires qualification, and has filed all legally required business
activities reports, returns, etc. in such jurisdictions; Borrower has the power
and authority to enter into and perform the Loan Documents, and any other
document or instrument delivered in connection herewith.
B. Corporate and Regulatory Authority. The making and performance by the
Borrower of the Loan Documents have been duly authorized by all necessary
corporate and regulatory action and will not violate any provision of law or of
its Articles of Incorporation by bylaws.
C. Financial Condition. The reports, including balance sheets and
statements of income and retained earnings of the Borrower and its subsidiaries,
heretofore and henceforth furnished to the Bank, are complete and correct and
fairly represent the financial condition of the Borrower and its subsidiaries as
at the dates of said financial statements and the results of their operations
for the periods ending on said dates. Neither the Borrower nor any of its
subsidiaries has any material contingent obligations, liabilities for taxes,
long-term leases, or unusual forward or long-term commitments not disclosed by,
or reserved against in, said balance sheets or the notes thereto; and at the
present time there are no material unrealized or anticipated losses from any
unfavorable commitments of the Borrower or any subsidiary. Said financial
statements were prepared in accordance with generally accepted principles and
practices of accounting consistently maintained throughout the periods involved.
Since the date of the latest of such statements there has been no material
adverse change in the financial condition of the Borrower and its subsidiaries
from that set in said balance sheets as at that date.
D. Taxes. Borrower has filed all federal, state and local tax returns and
other reports it is required to file, and has paid or made adequate provision
for payment of all such taxes, assessments and other governmental charges.
E. Litigation. There are no suits or proceedings pending, or to the
knowledge of the Borrower threatened against or affecting the Borrower or any of
its subsidiaries, and there are no proceedings by or before any governmental
commission, board, bureau, or other administrative agency pending or, to the
knowledge of the Borrower, threatened, against the Borrower or any of its
subsidiaries which, if adversely determined, would have a material adverse
effect on the financial condition or business of the Borrower or its
subsidiaries.
F. Not Misleading. No representation, warranty or statement by Borrower
contained herein or in any certificates or other document finished or to be
furnished by Borrower pursuant hereto contains or at the time of delivery shall
contain any untrue statement of material fact, or omits, or shall omit at the
time of delivery to state a material fact necessary to make it not misleading.
10) Federal Reserve. Bank may at any time pledge, endorse, assign, or transfer
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 Bank from its obligations under any
of the Loan Documents.
11) Third Party Purchaser. Bank shall have the unrestricted right at any time or
from time to time, and without Borrower's consent, to sell, assign, endorse, or
transfer all or any portion of its rights and obligations hereunder to one or
more banks or other entities (each, an "Assignee") and, Borrower 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 Bank shall deem necessary to
effect the foregoing. In addition, at the request of Bank and any such Assignee,
Borrower shall issue on or more new promissory notes, as applicable, to any such
Assignee and, if Bank has retained any of its rights and obligations hereunder
following such assignment, to Bank, which new promissory notes shall be issued
in replacement of, but not in discharge of, the liability evidenced by the note
held by Bank prior to such assignment and shall reflect the amount of the
respective commitments and loans held by such Assignee and Bank after giving
effect to such assignment. Upon the execution and delivery of appropriate
assignment documentation, amendments and any other documentation required by
Bank in connection with such assignment, and the payment by Assignee of the
purchase price agreed to by Bank and such Assignee, such Assignee shall be a
party to this Agreement and shall have all of the rights and obligations of 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 Bank pursuant to the assignment documentation
between Bank and Assignee, and Bank shall be released from its obligations
hereunder and thereunder to a corresponding extent.
12) Participation. Bank shall have the unrestricted right at any time and from
time to time, and without the consent of or notice to Borrower to grant to one
or more institutions or other persons (each a "Participant") participating
interests in Bank's obligations to lend hereunder and/or any or all of the loans
held by Bank hereunder. In the event of any such grant by Bank of a
participating interest to a Participant; whether or not upon notice to Borrower,
Bank shall remain responsible for the performance of its obligations hereunder
and Borrower shall continue to deal solely and directly with Bank in connection
with Bank's rights and obligations hereunder.
Bank may furnish any information concerning Borrower in its possession from time
to time to any prospective assignees and Participants, provided that Bank shall
require any such prospective assignee or Participant to maintain the
confidentiality of such information.
13) Right to Set Off. Borrower hereby grants to Bank a lien, security interest
and a right of setoff as security for all liabilities and obligations to Bank,
whether now existing or hereafter arising, upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Bank or any entity under the control of Bank, or in
transit to any of them. At any time, without demand or notice, Bank may set off
the same or any part thereof and apply the same to any liability or obligation
of Borrower even though unmatured and regardless of the adequacy of any other
collateral securing the loan. ANY AND ALL RIGHTS TO REQUIRE BANK TO EXERCISE ITS
RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN,
PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS
OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED. Bank shall not be required to marshal any present or future
security for, or guarantees of, the obligations or to resort to any such
security or guarantee in any particular order and the Borrower waives, to the
fullest extent that it lawfully can, (a) any right they might have to require
the Bank to pursue any particular remedy before proceeding against them and (b)
any right to the benefit of, or to direct the application of the proceeds of any
collateral until the obligations are paid in full.
14) Replacement Documents. Upon receipt of an affidavit of an officer of Bank as
to the loss, theft, destruction or mutilation of the Note or any other security
document(s) which is not of public record and, in the case of any such
destruction or mutilation, upon surrender and cancellation of such Note or other
document(s), the Borrower will issue, in lieu thereof, a replacement Note or
other document(s) in the same principal amount thereof and otherwise of like
tenor.
15) Waiver of Jury Trial. Borrower and 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 this
Agreement or any other documents contemplated to be executed in connection
herewith or any course of conduct, course of dealing, statements (whether verbal
or written) or actions of any party. This waiver constitutes a material
inducement for Bank to accept this Agreement and make the Loan.
16) Fees. The Borrower shall assume responsibility for all legal and other out
of pocket expenses incurred in the documentation of this commitment and in
addition shall pay the Bank an annual commitment fee of $1,500.
17) Waiver. The failure of Bank at any time or times hereafter to require strict
performance by Borrower of any of the provisions, warranties, terms and
conditions contained in the Loan Documents or in any other agreement, guaranty,
note, instrument or document now or at any time or times hereafter executed by
Borrower and delivered to Bank shall not waive, affect or diminish any right of
Bank at any time or times thereafter to demand strict performance thereof; and
no rights of Bank hereunder shall be deemed to have been waived by any act or
knowledge of Bank, its agents, officers or employees, unless such waiver is
contained in an instrument in writing signed by an officer of Bank and directed
to Borrower specifying such waiver. No waiver by Bank of any of its rights shall
operate as a waiver of any other of its rights or any of its rights on a future
occasion.
18) Capital Adequacy. If after the day hereof, the Bank determines that (i) the
adoption of any applicable law, rule or regulation of regarding requirements for
banks or bank holding companies in subsidiaries thereof; (ii) any change in the
interpretation or administration of any such law, rule or regulation by any
governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof; or (iii) compliance by Bank or its
holding company with any request or directive of any governmental authority,
central bank, or comparable agency regarding capital adequacy (or not having a
force of law), has the effect of reducing the return on the Bank's capital to a
level below that which Bank could have achieved (taking into account the Bank's
and its holding company's policies with respect to capital adequacy and
immediately before such adoption, change or compliance and assuming that Bank's
capital was fully utilized prior to such adoption, change or compliance) but for
such adoption, change or compliance as a consequence of the Bank's commitment to
make advances pursuant hereto by any amount deemed by the Bank to be material;
then Bank shall promptly, after Bank's determination of such occurrence, give
notice to the Borrower, and the Borrower shall pay to the Bank as an additional
fee from time to time on demand, such amount as Bank certifies to be the lowest
amount that will be required to compensate the Bank for any such reduction. A
certificate from the Bank claiming entitlement to compensation as provided in
this Section shall be conclusive in the absence of manifest error. Said
certificate will be delivered to the Borrower and shall set forth the nature of
the occurrence giving rise to any such need for compensation, the additional
amount or amounts to be paid to the Bank, and the method by which such amounts
were determined. In determining any such amount, the Bank may use any reasonable
averaging or attribution method. Any adjustment will be no greater than that
calculated to be proportionate to the Borrower's loan in relationship to the
rest of the Bank's loan portfolio of similar risk.
19) Notice. Any demand or notice required or permitted to be given hereunder
shall be deemed effective when delivered in the United States mail, and sent by
certified mail, return receipt requested, postage prepaid, addressed to Bank at
Bank's address or to Borrower at Borrower's address, as applicable, or to such
other address as may be provided by the party to be notified, on ten (10) days
prior written notice to the other party.
20) Entire Understanding. The Loan Documents contain the entire understanding
between the parties hereto with respect to the transactions contemplated herein
and such understanding shall not be modified except in writing signed by or on
behalf of the parties hereto.
21) Severability. Wherever possible, each provision of the Loan Documents shall
be interpreted in such manner as to be effective and valid under applicable law;
should any portion of any of the Loan Documents be declared invalid for any
reason in any jurisdiction, such declaration shall have no effect upon the
remaining portions of the Loan Documents; furthermore, the entirety of the Loan
Documents shall continue in full force and effect in all other jurisdictions,
Said remaining portions of the Loan Documents shall continue in full force and
effect in the subject jurisdiction as if this Agreement had been executed with
the invalid portions thereof deleted.
22) Non-Assignability. The provisions of the Loan Documents shall be binding
upon and shall inure to the benefit of the heirs, administrators, successors and
assigns of Bank and Borrower; provided, however, Borrower may not assign any of
its rights or delegate any of its obligations hereunder without the prior
written consent of the Bank.
23) Jurisdiction. The Loan Documents are and shall be deemed to be contracts
entered into and made pursuant to the laws of the State of New Hampshire and
shall in all respects be governed, construed, applied and enforced in accordance
with the laws of said state; in the event that the Bank brings any action
hereunder in any court of record of New Hampshire or the Federal Government,
Borrower consents to and confers personal jurisdiction over Borrower by such
court or courts and agrees that service of process may be made upon Borrower by
mailing a copy of the summons to Borrower at Borrower's address; and in any
action hereunder Borrower waives the right to demand a trial by jury.
24) Costs of Counsel. If, prior hereto and/or at any time or times hereafter,
Bank shall employ counsel in connection with the execution and consummation of
the transactions contemplated by any or all of the Loan Documents or to
commence, defend or intervene, file a petition, complaint, answer, motion or
other pleadings, or to take any other action on or with respect to any suit or
proceeding (bankruptcy or otherwise) relating to any Loan Documents or any other
agreement, guaranty, note, instrument or document heretofore, now or at any time
or times hereafter executed by Borrower and delivered to Bank, or to enforce any
rights of Bank hereunder, whether before or after the occurrence of any Event of
Default, or to collect any of the Obligations, then in any of such events, all
of the reasonable attorneys' fees arising from such services, and any expenses,
costs and charges relating thereto, shall be part of the outstanding balance,
payable on demand.
25) Counterparts. Any of the Loan Documents may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument.
26) Succession. Each reference herein to Bank shall be deemed to include its
successors and assigns, and each reference to Borrower and any pronouns
referring thereto as used herein shall be construed in the masculine, feminine,
neuter, singular or plural, as the context may require, and shall be deemed to
include the legal representatives, successors and assigns of Borrower, all of
which shall be bound by the provisions hereof. The term "Borrower" as used
herein shall, if this Agreement is signed by more than one Borrower, mean,
unless this Agreement otherwise provides or unless the context otherwise
requires, the "Borrower and each of them" and each and every representation,
promise, agreement and undertaking shall be joint and several, except that the
granting of the security interest, right of set-off and lien shall be by each
Borrower in its several respective property. In the event that there is more
than one Borrower, any loan which is secured by this Agreement, shall be deemed
to be made at the request of and for the benefit of each Borrower.
27) Headings. The section headings herein are included for convenience only and
shall not be deemed to be a part of this Agreement.
28) Costs. The Borrower will pay, whether or not any Advance is made hereunder,
all out-of-pocket expenses of the Bank in connection with the preparation,
execution, and delivery hereof and of any Advance, including reasonable fees and
disbursements of counsel to the Bank.
If the foregoing satisfactorily sets forth the terms and conditions of the Line,
please indicate your agreement by executing and returning this letter and the
attached Line of Credit Promissory Note.
We continue to enjoy working with Unitil Corp. and look forward to further
expanding upon our long-standing and mutually beneficial relationship.
SOVEREIGN BANK NEW ENGLAND
__________________________ By: __________________________________
Witness David A. Canedy, Vice President
The above terms are hereby understood and accepted as of this 25th day of
September, 2000:
UNITIL CORPORATION
__________________________ By: __________________________________
Witness Mark H. Collin, Treasurer
LINE OF CREDIT PROMISSORY NOTE
$4,000,000 September 25, 2000
Nashua, New Hampshire
FOR VALUE RECEIVED, UNITIL CORPORATION, a New Hampshire corporation with a
principal place of business at 6 Liberty Lane West, Hampton, New Hampshire,
03842 (the "Borrower") (the Borrower and all other persons primarily or
secondarily liable hereunder or in respect hereto are sometimes referred to
herein as the "Obligor"), hereby promises to pay, ON DEMAND, to the order of
SOVEREIGN BANK, with an office at 223 Main Street, Nashua, New Hampshire, 03060
(the "Bank") (the Bank and any subsequent transferee of this Note, whether
taking by negotiation or otherwise, are sometimes referred to herein as the
"Holder") at such place of business or such other place as may be designated
hereafter by the holder hereof, the principal sum of Four Million Dollars
($4,000,000.00) (or so much thereof as may be advanced or readvanced by the Bank
to the Borrower from time to time hereafter, such amounts defined as the "Debit
Balance" below), together with interest on each such advance from the date
thereof at a rate per annum equal to (a) the "Prime Rate" or (b) the LIBOR rate,
or (c) the Cost of Funds rate, as elected by the Borrower pursuant to the Letter
Agreement of even date. All payments shall be made in lawful money of the United
States of America, in immediately available funds.
This Note is being executed and delivered in accordance with the terms of a
certain Letter Agreement of even date between the Borrower and the Bank (the
"Letter Agreement") and the documents defined therein as the "Loan Documents".
Until such time as this Note becomes due and payable, the Borrower shall pay to
the Bank the sum of the Interest Period Interest Charges (as set forth below)
monthly in arrears commencing on or by the like-numbered date of the next month
from the date hereof (or on such other date as may be agreed upon by the
Borrower and the Bank to provide for a convenient payment date) and continuing
on or by the corresponding day of each succeeding month thereafter.
If any due date falls on a non-Business Day, the payment shall be due on the
next Business Day. A "Business Day" shall mean, with respect to any date that is
specified in this Note to be subject to adjustment in accordance with applicable
Business Day convention, (i) a day on which commercial banks settle payments in
New York or London if the payment obligation is calculated by reference to any
LIBOR Rate, or (ii) in any other case, any day on which the Bank is open for
business.
The "Modified Following Business Day Convention" shall mean the convention for
adjusting any relevant date if it would otherwise fall on a day that is not a
Business Day. The following terms, when used in conjunction with the term
"Modified Following Business Day Convention" and a date, shall mean that an
adjustment will be made if that date would otherwise fall on a day that is not a
Business Day so that the date will be the first following day that is a Business
Day.
Interest Calculation.
- --------------------
The Interest Period Interest Charge shall be the sum of the Daily Interest
Charges in the Interest Period.
The Daily Interest Charge on each Principal Advance shall be calculated as
follows:
Daily Balance X Interest Rate
360
The Interest Period shall be the period from the day following the last interest
due date to the next interest due date.
The Interest Rate is the rate elected by the Borrower for each Principal
Advance.
The maximum principal amount outstanding under this Note shall be limited to
Four Million Dollars ($4,000,000). Pursuant to the Letter Agreement, there shall
be due and payable from the Borrower to the Bank, and the Borrower shall
immediately pay to the Bank, without demand, any amount by which the Debit
Balance exceeds Four Million Dollars ($4,000,000).
The term "Prime Rate" means the variable per annum rate of interest so
designated from time to time by the Bank as its prime rate. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate being
charged to any customer. The rate of interest hereunder shall change
simultaneously and automatically, without further notice, upon the Bank's
determination and designation from time to time of the Prime Rate. The Bank's
determination and designation from time to time to the Prime Rate shall not in
any way preclude the Bank from making loans to other borrowers at rates that are
higher or lower than or different from the referenced rate.
"LIBOR" shall mean, as applicable to any LIBOR Advance and LIBOR period
applicable thereto, (i) a rate per annum (rounded upward, if necessary), to the
nearest 1/32 of one percent) equal to the composite London Interbank Offered
Rate which appears on the Telerate page 3750 as of 11:00 am. London time on the
day that is two (2) London Banking Days preceding the first day of such LIBOR
Period (or if not reported thereon, then as determined by Bank from another
recognized source or interbank quotation) divided by (ii) a fraction (A) the
numerator of which is one and (B) the denominator is the average of the daily
rates (expressed as a decimal) for maximum reserve requirements which are, at
any time rates (expressed as a decimal) of maximum reserve requirements which
are, at any time, applicable during such LIBOR Period (including, without
limitation, basic, supplemental, special, marginal and emergency reserves) under
any regulation of the Board of Governors of the Federal Reserve System or other
banking authority, domestic or foreign, as now or hereafter in effect,
prescribed for eurocurrency funding (currently referred to as Eurocurrency
Liabilities in Regulation D of such Board) to which the Bank (including any
branch, affiliate, or other fronting office, making or holding a loan that
accrues interest at a rate which refers to LIBOR) is subject, as now or
hereafter in effect.
"LIBOR Period" shall mean, with respect to any LIBOR Loan, the period commencing
on the date on which the LIBOR Loan begins to bear interest at a rate tied to
LIBOR in accordance herewith and ending one, two, or three month(s) thereafter,
as appropriate, as selected by the Borrower pursuant hereto; provided however,
(i) any LIBOR Period that would otherwise end on a day which is not a Banking
Day shall be extended to the next Banking Day, unless such extension would carry
such LIBOR Period into the next month, in which event such LIBOR Period shall
end on the preceding Banking Day, (ii) any LIBOR Period that begins on the last
Banking Day of a calendar month (or on a date for which there is no numerically
corresponding day in the calendar month in which such LIBOR Period ends) shall
end on the last Banking Day of a calendar month, and (iii) any LIBOR Period that
would otherwise extend beyond the (Maturity Date) shall end on the (Maturity
Date).
"London Banking Day" shall mean any Banking Day on which commercial banks are
open for international business (including dealing in U.S. dollar ($) deposits)
in London, England and Philadelphia, Pennsylvania.
"Cost of Funds" means the per annum rate of interest which Bank is required to
pay, or is offering to pay, for wholesale liabilities, adjusted for reserve
requirement and such other requirements as may be imposed by federal, state or
local government and regulatory agencies, as determined by Sovereign Treasury
Group, or its successors.
The "LIBOR rate" and the "Cost of Funds rate" shall mean the rate provided to
the Borrower as described in the Letter Agreement by the Bank upon any given day
as such rate. Such rate shall consist of the LIBOR or Cost of Funds index as of
such date, plus a margin to be determined by the Bank in its sole discretion.
Any LIBOR rate or Cost of Funds rate shall be fixed for the duration of the
election.
All amounts outstanding under the Line which are not subject to the LIBOR rate
or the Cost of Funds rate shall bear interest at a variable annual rate equal to
the Borrower's Prime Rate as provided hereinabove. Notwithstanding the foregoing
provisions, the Borrower may not convert existing advances to LIBOR advances or
Cost of Funds advances if at any time either an Event of Default or a payment
Default exists under the Loan Documents. As used herein, "LIBOR Advance" shall
mean any amount outstanding under the Line as to which the Borrower has elected
a LIBOR Rate, and "Cost of Funds Advances" shall mean any amount outstanding
under the Line as to which the Borrower has elected a Cost of Funds rate.
All computations of interest under this Note shall be made on the basis of a
three hundred sixty (360) day year and the actual number of days elapsed.
Late Charges: If a regularly scheduled payment is fifteen (15) days or more
late, Borrower will be charged 5.000% of the unpaid portion of the regularly
scheduled payment or $10.00, whichever is greater. If Bank demands payment of
this Loan, and Borrower does not pay the Loan within fifteen (15) days after
Bank's demand, Borrower will be charged either 5.000% of the unpaid principal
plus accrued unpaid interest or $10.00, whichever is greater.
Borrower shall not be obliged to pay and Bank shall not collect interest at a
rate higher than the maximum permitted by law or the maximum that will not
subject Bank to any civil or criminal penalties. If, because of the acceleration
of maturity the payment of interest in advance or any other reason, Borrower is
required, under the provisions of any Loan Documents or otherwise, to pay
interest at a rate in excess of such maximum rate, the rate of interest under
such provisions shall immediately and automatically be reduced to such maximum
rate and any payment made in excess of such maximum rate, together with interest
thereon at the rate provided herein from the date of such payment, shall be
immediately and automatically applied to the reduction of the unpaid principal
balance of this Note as of the date on which such excess payment was made. If
the amount to be so applied to reduction of the unpaid principal balance exceeds
the unpaid principal balance, the amount of such excess shall be refunded by
Bank to Borrower.
The Borrower agrees that the Bank may make loan advances to the Borrower upon
verbal authority (which, if the Bank so requires, shall be followed by written
confirmation) of any officer executing this Note on behalf of the Borrower or
any other officer of the Borrower who is authorized in writing to borrow money
from the Bank and may deliver such advances by direct deposit to any deposit
account of the Borrower with the Bank or otherwise as may be authorized in the
Letter Agreement. Notwithstanding anything to the contrary herein, the Bank may
require written notice of requests for loan advances as may be provided in the
Letter Agreement. All such advances shall represent binding obligations of the
Borrower.
The Borrower's "Debit Balance" shall mean the debit balance in an account on the
books of the Bank, maintained in the form of a ledger card, computer records or
otherwise in accordance with the Bank's customary practice and appropriate
accounting procedures wherein there shall be recorded the principal amount of
all advances made by the Bank to the Borrower, all principal payments made by
the Borrower to the Bank hereunder, and all other appropriate debits and credits
(the "Loan Account"). The Bank shall render to the Borrower a statement of
account with respect to the Loan Account on a monthly basis. Such statement
shall indicate the Borrower's then current Debit Balance and any interest
amounts due and payable from the Borrower to Bank. Such statement may be based
on estimates of the principal amount outstanding and the interest rate for the
applicable payment period. Any required adjustments between such estimates and
actual amounts shall be reflected in subsequent statements.
The Borrower acknowledges that this Note is to evidence the Borrower's
obligation to pay the Debit Balance, plus interest, as determined from time to
time and that it shall continue to do so despite the occurrence of intervals
when no Debit Balance exists because the Borrower has paid the previously
existing Debit Balance in full.
This Note is a DEMAND OBLIGATION. At the option of the Bank, this Note shall
become immediately due and payable in full, without further demand or notice, on
the earlier of (i) demand by the Bank, or (ii) the occurrence of an Event of
Default (as defined below).
If any of the following events of default shall occur ("Event of Default"): (a)
default in the payment or performance of any of the Obligations or of any
obligations of any Obligor to others for borrowed money or in respect of any
extension of credit or accommodation: (b) failure of any representation or
warranty, statement or information in any documents or financial statements
delivered to the Holder for the purpose of inducing it to make or maintain any
loan under this Note to be true and correct; (c) failure of the undersigned to
file any tax return, or to pay or remit any tax, when due, unless the
undersigned contests the particular tax in good faith, and also maintains
adequate reserves to pay such tax, if unsuccessful in its action to contest; (d)
failure to furnish the Holder promptly on request with financial information
about, or to permit inspection by the Holder of books, records and properties to
any Obligor; (e) any Obligor generally not paying its debts as they become due;
(f) death, dissolution, termination of existence, insolvency, business failure,
appointment of a receiver or other custodian of any part of the property of,
assignment for the benefit of creditors by, or the commencement of any
proceedings (except for an involuntary bankruptcy petition against any Obligor
to which such Obligor files a proper answer thereto pursuant to Section 303(d)
of the Bankruptcy Code (11 USC 303(d)) within ten (10) days of receipt of notice
of said proceeding, which answer shall include a request that petitioning
creditors post adequate bond under Section 303(e)(11 USC 303(e))) under any
bankruptcy or insolvency laws by or against, any Obligor; (g) a material adverse
change in the condition or affairs (financial or otherwise) of any Obligor which
in the opinion of the Holder will impair its security or increase its risk
including but not limited to any reduction of any Obligor's tangible net worth
by more than 10% from its level at the previous fiscal year end or the
occurrence of operating losses for any consecutive twelve month period; then the
Holder shall give written notice of such default and if such default is not
cured within five business days of delivery of such notice then immediately and
automatically with respect to any Defaults set forth in clauses (e) and (f)
above, and thereupon or at anytime thereafter with respect to each other Default
(such Default not having been previously cured), at the option of the Holder,
all Obligations of the Obligor shall become immediately due and payable without
demand, and, if there is any collateral for the Obligations, the Holder shall
then have in any jurisdiction where enforcement hereof is sought, in addition to
all other rights and remedies the rights and remedies of a secured party under
the Uniform Commercial Code as in effect in the State of New Hampshire.
As used herein, "Obligation" means any obligation hereunder or otherwise of any
Obligor to the holder whether direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter arising.
The Borrower agrees to pay on demand all reasonable out-of-pocket costs of
collection hereof, including reasonable attorneys' fees, whether or not any
foreclosure or other action is instituted by the Holder in its discretion. All
payments received will be applied first to interest, then to fees, and then to
principal.
As additional collateral, the Borrower grants (1) a security interest in, or
pledges, assigns and delivers, to the Holder, as appropriate, all deposits,
credits and other property now or hereafter due from the Holder to such Borrower
and (2) the right to set-off and apply (and a security interest in said right),
from time to time hereafter and without demand or prior notice of any nature,
all, or any portion, of such deposits, credits and other property, against the
indebtedness evidenced by this Note, whether the other collateral, if any, is
deemed adequate or not.
Borrower and 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 this Note or any other documents executed in
connection herewith or any course of conduct, course of dealing, statements
(whether verbal or written) or actions of any party. This waiver constitutes a
material inducement for Bank to accept this Note and make the Loan.
No delay or omission on the part of the Holder in exercising any right,
privilege or remedy shall impair such right, privilege or remedy or be construed
as a waiver thereof or of any other right, privilege or remedy. No waiver of any
right, privilege or remedy or any amendment to this Note shall be effective
unless made in writing and signed by the Holder. Under no circumstances shall an
effective waiver of any right, privilege or remedy on any one occasion
constitute or be construed as a bar to the exercise of or a waiver of such
right, privilege or remedy on any future occasion. The acceptance by the Holder
hereof of and payment after any default hereunder shall not operate to extend
the time of payment of any amount then remaining unpaid hereunder or constitute
a waiver of any rights of the Holder hereof under this Note.
All rights and remedies of the Holder, whether granted herein or otherwise,
shall be cumulative and may be exercised singularly or concurrently, and the
Holder shall have, in addition to all other rights and remedies, the rights and
remedies of a secured party under the Uniform Commercial Code of New Hampshire.
The Borrower waives, to the fullest extent permitted by law, presentment,
notice, protest and all other demands and notices and assent (1) to any
extension of the time of payment or any other indulgence, (2) to any
substitution, exchange or release of collateral, and (3) to the release of any
other person primarily or secondarily liable for the obligations evidenced
hereby.
This Note and the provisions hereof shall be binding upon the Borrower and the
Borrower's heirs, administrators, executors, successors, legal representatives
and assigns and shall inure to the benefit of the Holder, the Holder's heirs,
administrators, executors, successors, legal representatives and assigns.
This Note may not be amended, changed or modified in any respect except by a
written document which has been executed by each party. This Note and all rights
and obligations hereunder, including matters of construction, validity and
performance, shall be governed by the laws of the State of New Hampshire.
IN WITNESS WHEREOF, the Borrower, acting by and through its duly authorized
officer, has executed this Promissory Note on this 25th day of September, 2000.
UNITIL CORPORATION
By:
----------------------------------------
Anthony J. Baratta, Jr.
Its Duly Authorized
Senior Vice President and
Chief Financial Officer
By:
----------------------------------------
Mark H. Collin,
Its Duly Authorized Treasurer
ADDENDUM A
Prepayment Penalty: At any time that (i) the interest rate on the loan described
in the Loan Documents is a fixed rate (e.g., a "LIBOR rate" or a "Cost of Funds
rate") and (ii) the Bank in its sole discretion should determine that current
market conditions can accommodate a prepayment request, the Borrower shall have
the right at any time and from time to time to prepay the loan in whole (but not
in part), and the Borrower shall pay to the bank a yield maintenance fee in an
amount computed as follows. The current rate for United States Treasury
securities (Bills on a discounted basis shall be converted to a bond equivalent)
with a maturity date closest to the maturity date of the term chosen pursuant to
the fixed rate election as to which the prepayment is made shall be subtracted
from the "LIBOR rate" or "Cost of Funds rate" component, as applicable, of the
fixed rate in effect at the time of prepayment. If the result is zero or a
negative number, there shall be no yield maintenance fee. If the result is a
positive number, then the resulting percentage shall be multiplied by the amount
of the principal balance being prepaid. The resulting amount shall be divided by
360 and multiplied by the number of days remaining in the term chosen pursuant
to the fixed rate election as to which the prepayment is made. Said amount shall
be reduced to present value calculated by using the number of days remaining in
the designated term and using the above referenced United States Treasury
security rate and the number of days remaining in the term chosen pursuant to
the fixed rate election as to which the prepayment is made. The resulting amount
shall be the yield maintenance fee due to the Bank upon prepayment of the fixed
rate Loan. Each reference in the paragraph to "fixed rate election" shall mean
the election by the Borrower pursuant to the Letter Agreement of near or even
date.
If by reason of an Event of Default the Bank elects to declare the Loan to be
immediately due and payable, then any yield maintenance fee with respect to the
Loan shall become due and payable in the same manner as though the Borrower had
exercised such right of repayment.
UNITIL CORPORATION
By:
---------------------------------
Anthony J. Baratta,
Senior Vice President and
Chief Financial Officer
Duly Authorized
By:
---------------------------------
Mark H. Collin,
Treasurer
Duly Authorized
Exhibit H-2
Proposed Form of Notice
Unitil Corporation ("Unitil"), of 6 Liberty Lane West, Hampton, New
Hampshire 03842- 1720, a registered holding company, has filed a post-effective
amendment under Sections 6(b), 7, 9(a), 10 and 12(b) of the Public Utilities
Holding Company Act of 1935, as amended ("Act") and Rules 43, 45 and 52
thereunder to an application-declaration previously filed under the Act.
On June 9, 2000, Unitil and its wholly owned subsidiary companies, Concord
Electric Company ("Concord"), Exeter & Hampton Electric Company ("Exeter"),
Fitchburg Gas and Electric Light Company ("Fitchburg"), Unitil Power Corp.
("Unitil Power"), Unitil Realty Corp. ("Unitil Realty"), Unitil Resources, Inc.
("Unitil Resources") and Unitil Service Corp. ("Unitil Service" and, together
with Concord, Exeter, Fitchburg, Unitil Power, Unitil Realty and Unitil
Resources, the "Subsidiaries" or "Money Pool Participants") (Unitil and the
Subsidiaries are collectively referred to as the "Applicants"), received
approval under the Act from the Securities and Exchange Commission (the
"Commission") for the authorization and approval under Sections 6(b), 7, 9(a),
10 and 12(b) of the Act and the Rules 43, 45 and 52 thereunder with respect to
(i) short-term borrowing by Unitil, (ii) short-term borrowings by Fitchburg and
(iii) the continued use of the system money pool ("Money Pool") by Unitil and
the Money Pool Participants, pursuant to the Cash Pooling and Loan Agreement
(the "Pooling Agreement") among Unitil and the Money Pool Participants dated as
of February 1, 1985, as amended, Holding Co. Act Release No. 27182 (the
"Order").
Applicants now seek approval to increase Unitil's authorized short-term
borrowing to $35 million from $25 million. Since the Commission issued the
Order, Unitil reevaluated its financial needs and determined that the Company
will require authority to issue up to $35 million in short- term debt to meet
its financing needs prior to the completion of its 2001 long-term financing
plans. As Unitil finalized its long-term financing plans for 2001, it determined
that additional borrowing authority would be required to give it the financial
flexibility needed to successfully complete its upcoming financing plans.
Additionally, with rising energy costs, such an increase would assist it in
meeting any short-term payment timing differences that may occur in the future
related to energy supply costs. Unitil's Board of Directors authorized this
short-term borrowing limit of $35 million on September 29, 2000.
Any borrowings undertaken pursuant to this authorization will remain
subject to the parameters set forth in the Order, except for the new aggregate
limit of $35 million. Applicants are not requesting additional borrowing
authority for Fitchburg.
Unitil expects to use the proceeds derived from short-term bank borrowings
authorized by this Commission pursuant to this application/declaration for: (i)
loans or advances to Subsidiaries through the Pooling Agreement, (ii) payment of
indebtedness, (iii) short-term cash needs which may arise due to payment timing
differences, (iv) greater flexibility in financial planning and (iv) other
general purposes.
UNITIL CORPORATION
CONSOLIDATED BALANCE SHEETS (000's) (A)
ASSETS: (Unaudited)
June 30,
2000 Adjustments Pro Formed
--------------- --------------- ------------------
Utility Plant
Electric $166,473 $166,473
Gas 35,273 35,273
Common 21,150 21,150
Construction Work in Progress 3,207 18,300 (E) 21,507
--------------- --------------- ------------------
Utility Plant 226,103 18,300 244,403
Less: Accumulated Depreciation 68,518 68,518
--------------- --------------- ------------------
Net Utility Plant 157,585 18,300 175,885
--------------- --------------- ------------------
Miscellaneous Property & Investments 6,338 6,338
--------------- --------------- ------------------
Current Assets:
Cash 3,002 3,002
Accounts Receivable 17,274 17,274
Materials and Supplies 2,321 2,321
Prepayments 1,362 1,362
Accrued Revenue 2,402 2,402
--------------- --------------- ------------------
Total Current Assets 26,361 26,361
Noncurrent Assets:
Regulatory Assets 139,799 139,799
Prepaid Pension Costs 8,789 8,789
Debt Issuance Costs 1,382 1,382
Other Noncurrent Assets 25,124 25,124
--------------- --------------- ------------------
Total Noncurrent Assets 175,094 175,094
--------------- --------------- ------------------
TOTAL $365,378 $18,300 $383,678
=============== =============== ==================
(The accompanying Notes are an integral part of these statements.)
UNITIL CORPORATION
CONSOLIDATED BALANCE SHEETS (000's) (A)
CAPITALIZATION AND LIABILITIES: (Unaudited)
June 30,
2000 Adjustments Pro Formed
--------------- --------------- ------------------
Capitalization:
Common Stock Equity $77,973 ($381)(D) $77,592
Preferred Stock, Non-Redeemable 225 225
Preferred Stock, Redeemable 3,465 3,465
Long-term Debt, Less Current Portion 81,864 81,864
--------------- --------------- ------------------
Total Capitalization 163,527 (381) 163,146
Current Liabilities:
Long-term Debt, Current Portion 3,199 3,199
Capitalized Lease, Current Portion 850 850
Accounts Payable 13,771 13,771
Short-Term Debt 16,700 18,300 (F) 35,000
Dividends Declared and Payable 1,841 1,841
Refundable Customer Deposits 1,282 1,282
Taxes Payable 152 (220)(B) (68)
Interest Payable 1,150 601 (C) 1,751
Other Current Liabilities 6,550 6,550
--------------- --------------- ------------------
Total Current Liabilities 45,495 18,681 64,176
Deferred Income Taxes 42,883 42,883
--------------- --------------- ------------------
Noncurrent Liabilities
Power Supply Contract Obligations 101,763 101,763
Capitalized Leases, Less Current Portion 3,447 3,447
Other Deferred Credits 8,263 8,263
--------------- --------------- ------------------
Total Noncurrent Liabilities 113,473 113,473
--------------- --------------- ------------------
TOTAL $365,378 $18,300 $383,678
=============== =============== ==================
(The accompanying Notes are an integral part of these statements.)
UNITIL CORPORATION
CONSOLIDATED STATEMENTS OF EARNINGS (000's) (A)
(Unaudited)
Six Months Ended
June 30,
2000 Adjustments Pro Formed
--------------- --------------- ------------------
Operating Revenues:
Electric 77,736 77,736
Gas 11,425 11,425
Other 64 64
--------------- --------------- ------------------
Total Operating Revenues 89,225 89,225
--------------- --------------- ------------------
Operating Expenses:
Fuel and Purchased Power 52,638 52,638
Gas Purchased for Resale 6,308 6,308
Operating and Maintenance 12,192 12,192
Depreciation and Amortization 6,061 6,061
Provisions for Taxes:
Local Property and Other 2,622 2,622
Federal and State Income 1,916 (220)(B) 1,696
--------------- --------------- ------------------
Total Operating Expenses 81,737 (220) 81,517
--------------- --------------- ------------------
Operating Income 7,488 220 7,708
Non-operating Expense, Net 133 133
--------------- --------------- ------------------
Income Before Interest Expense 7,355 220 7,575
Interest Expense, Net 3,464 601 (C) 4,065
--------------- --------------- ------------------
Net Income 3,891 (381)(D) 3,510
Less Dividends on Preferred Stock 133 133
--------------- --------------- ------------------
Net Income Applicable to Common Stock $3,758 ($381) $3,377
=============== =============== ==================
(The accompanying Notes are an integral part of these statements.)
UNITIL CORPORATION
Notes to Pro Forma Consolidated Financial Statements
(A) These statements have been pro formed to reflect an increase in Short-Term
Debt to the requested borrowing limit and the corresponding impact on
expenses and Net Income.
(B) The reduction in taxes reflect the rise in interest expense which reduced
income for tax purposes.
(C) The cost of this increase in Short-Term Debt is reflected in higher
interest costs for the six months period.
(D) Lower Net Income and Common Equity (e.g. Retained Earnings) reflects the
impact of higher interest expense.
(E) Assumes all borrowings are made to fund capital additions to plant.
(F) Relects the incremental increase in Short-Term Debt to reach the borrowing
limit.
UNITIL CORPORATION (COMPANY ONLY)
BALANCE SHEETS (000's) (A)
ASSETS June 30,
2000 Adjustments Pro Formed
--------------- --------------- -----------------
Other Property and Investments
Investment in Associate Companies $67,725 #REF! (E) #REF!
Other Investments 4,408 4,408
--------------- --------------- -----------------
Net Service Property And Investments 72,133 #REF! #REF!
--------------- --------------- -----------------
Current Assets:
Cash 2,074 2,074
Due from Affiliates 2,038 #REF! (B) #REF!
Refundable Taxes 116 116
--------------- --------------- -----------------
Total Current Assets 4,228 #REF!
Noncurrent Assets 173 173
--------------- --------------- -----------------
TOTAL $76,534 #REF! #REF!
=============== =============== =================
(The accompanying Notes are an integral part of these statements.)
UNITIL CORPORATION (COMPANY ONLY)
BALANCE SHEETS (000's) (A)
June 30,
CAPITALIZATION AND LIABILITIES: 2000 Adjustments Pro Formed
--------------- --------------- -----------------
Capitalization:
Common Stock Equity $57,707 $57,707
--------------- --------------- -----------------
Total Capitalization 57,707 57,707
Current Liabilities:
Short-Term Debt 16,700 #REF! (D) #REF!
Account Payable 200 200
Due to Affiliates 33 33
Dividends Declared and Payable 1,775 1,775
Interest Payable 119 #REF! (B) #REF!
--------------- --------------- -----------------
Total Current Liabilities 18,827 #REF! #REF!
--------------- --------------- -----------------
TOTAL $76,534 #REF! #REF!
=============== =============== =================
(The accompanying Notes are an integral part of these statements.)
UNITIL CORPORATION (COMPANY ONLY)
STATEMENT OF EARNINGS (000's) (A)
Six Months Ended
June 30,
2000 Adjustments Pro Formed
--------------- --------------- -----------------
Operating Expenses:
Operating Expenses, Other $248 $248
Provisions for Taxes:
Federal and State Income (32) (32)
--------------- --------------- -----------------
Total Operating Expenses 216 216
--------------- --------------- -----------------
Operating Income (216) (216)
Non-operating Income 3,410 #REF! (B) #REF!
--------------- --------------- -----------------
Income Before Interest Expense 3,194 #REF! #REF!
Interest Expense, Net #REF! (C) #REF!
--------------- --------------- -----------------
Net Income $3,194 #REF!
=============== =============== =================
(The accompanying Notes are an integral part of these statements.)
UNITIL CORPORATION (Company Only)
Notes to Pro Forma Financial Statements
(A) These statements have been pro formed to reflect an increase in Short-Term
Debt to the requested borrowing limit and the corresponding impact on
Interest Expenses and Non-operating Income.
(B) Assumes interest costs will be billable through the Cash Pool to the client
companies and will become a receivable.
(C) The cost of this increase in Short-Debt is reflected in higher interest
costs for the six months period.
(D) Reflects the incremental increase in Short-Term Debt to reach the borrowing
limit.
(E) Assumes all borrowed funds are reflected as an investment in the Cash Pool.
FITCHBURG GAS AND ELECTRIC LIGHT COMPANY
CONSOLIDATED BALANCE SHEETS (000's) (A)
(UNAUDITED)
June 30,
ASSETS 2000 Adjustments Pro Formed
--------------- --------------- -----------------
Utility Plant (at cost):
Electric $57,063 $57,063
Gas 35,273 35,273
Common 5,397 5,397
Construction Work in Progress 1,479 11,372 (E) 12,851
--------------- --------------- -----------------
Utility Plant 99,212 11,372 110,584
Less: Accumulated Depreciation 26,244 26,244
--------------- --------------- -----------------
Net Utility Plant 72,968 11,372 84,340
--------------- --------------- -----------------
Other Property and Investments 18 18
--------------- --------------- -----------------
Current Assets:
Cash 333 333
Accounts Receivable 8,753 8,753
Materials and Supplies (at average cost) 1,450 1,450
Prepayments 566 566
Accrued Revenue (1,516) (1,516)
--------------- --------------- -----------------
Total Current Assets 9,586 9,586
Noncurrent Assets
Regulatory Assets 139,799 139,799
Unamortized Debt Expense 379 379
Prepaid Pension Costs 3,319 3,319
Other 15,806 15,806
--------------- --------------- -----------------
Total Noncurrent Assets 159,303 159,303
--------------- --------------- -----------------
TOTAL $241,875 $11,372 $253,247
=============== =============== =================
(The accompanying Notes are an integral part of these statements.)
FITCHBURG GAS AND ELECTRIC LIGHT COMPANY
CONSOLIDATED BALANCE SHEETS (000's) (A)
(UNAUDITED)
June 30,
CAPITALIZATION AND LIABILITIES 2000 Adjustments Pro Formed
--------------- --------------- -----------------
Capitalization:
Common Stock Equity 40,262 (232)(D) 40,030
Preferred Stock, Redeemable 2,272 2,272
Long-term Debt, Less Current Portion 40,000 40,000
--------------- --------------- -----------------
Total Capitalization 82,534 (232) 82,302
Current Liabilities:
Long-term Debt, Current Portion 3,000 3,000
Capitalized Lease Obligations 193 193
Short-Term Debt 8,628 11,372 (F) 20,000
Accounts Payable 3,869 3,869
Due to Affiliate 783 783
Dividends Declared and Payable 1,058 1,058
Refundable Customer Deposits 258 258
Taxes Payable 249 (142)(B) 107
Interest Payable 769 374 (C) 1,143
Other Current Liabilities 527 527
--------------- --------------- -----------------
Total Current Liabilities 19,334 11,604 30,938
Deferred Income Taxes 29,821 29,821
--------------- --------------- -----------------
Noncurrent Liabilities:
Power Supply Contract Obligations 101,763 101,763
Capitalized Lease Obligations 2,062 2,062
Other Noncurrent Liabilities 6,361 6,361
--------------- --------------- -----------------
Total Noncurrent Liabilities 110,186 110,186
--------------- --------------- -----------------
TOTAL $241,875 $11,372 $253,247
=============== =============== =================
(The accompanying Notes are an integral part of these statements.)
FITCHBURG GAS AND ELECTRIC LIGHT COMPANY
CONSOLIDATED STATEMENTS OF EARNINGS (000's) (A)
(UNAUDITED)
Six Months Ended
June 30,
2000 Adjustments Pro Formed
--------------- --------------- -----------------
Operating Revenues:
Electric $27,262 $27,262
Gas 11,425 11,425
--------------- --------------- -----------------
Total Operating Revenues 38,687 38,687
--------------- --------------- -----------------
Operating Expenses:
Fuel and Purchased Power 15,503 15,503
Gas Purchased for Resale 6,308 6,308
Operating Expenses, Other 6,049 6,049
Maintenance 800 800
Depreciation and Amortization 3,244 3,244
Provisions for Taxes:
Federal and State Income 630 (142)(B) 488
Local Property and Other 1,576 1,576
--------------- --------------- -----------------
Total Operating Expenses 34,110 (142) 33,968
--------------- --------------- -----------------
Operating Income 4,577 142 4,719
Non-operating Expense 89 89
--------------- --------------- -----------------
Income Before Interest Expense 4,488 142 4,630
Interest Expense, Net 1,645 374 (C) 2,019
--------------- --------------- -----------------
Net Income 2,843 ($232)(D) 2,611
Less Dividends on Preferred Stock 79 79
--------------- --------------- -----------------
Net Income Applicable to Common Stock $2,764 ($232) $2,532
=============== =============== =================
(The accompanying Notes are an integral part of these statements.)
FITCHBURG GAS AND ELECTRIC LIGHT COMPANY
Notes to Pro Forma Financial Statements
(A) These statements have been pro formed to reflect an increase in Short-Term
Debt to the recently authorized borrowing limit and the corresponding
impact on expenses and Net Income.
(B) The reduction in taxes reflect the rise in interest expense which reduced
income for tax purposes.
(C) The cost of this increase in Short-Term Debt is reflected in higher
interest costs for the six months period.
(D) Lower Net Income and Common Equity (e. g. Retained Earnings) reflects the
impact of higher interest expense.
(E) Assumes all borrowings are made to fund additions to Utility Plant.
(F) Reflects the incremental increase in Short-Term debt to reach the borrowing
limit.
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.OPUR1 1,000 6-MOS 6-MOS DEC-31-2000 DEC-31-2000 JAN-1-2000 JAN-1-2000 JUN-30-2000 JUN-30-2000 PER-BOOK PER-BOOK 157,585 175,885 6,338 6,338 26,361 26,361 175,094 175,094 0 0 365,378 383,678 40,674 40,674 294 294 37,005 36,624 77,973 77,592 3,465 3,465 225 225 81,864 81,864 16,700 35,000 0 0 0 0 3,199 3,199 0 0 3,447 3,447 850 850 177,655 178,036 365,378 383,678 89,225 89,225 1,916 1,696 79,821 79,821 81,737 81,517 7,488 7,708 (133) (133) 7,355 7,575 3,464 4,065 3,891 3,510 133 133 3,758 3,377 4,882 4,882 3,223 3,233 8,735 8,354 0.80 0.72 0.79 0.71
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.OPUR1 1,000 6-MOS 6-MOS DEC-31-2000 DEC-31-2000 JAN-1-2000 JAN-1-2000 JUN-30-2000 JUN-30-2000 PER-BOOK PER-BOOK 0 0 72,133 90,433 4,228 4,829 173 1730 0 0 76,534 95,435 42,361 42,361 294 294 15,052 15,052 57,707 57,707 0 0 0 0 0 0 16,700 35,000 0 0 0 0 0 0 0 0 0 0 0 0 2,127 2,728 76,534 95,435 0 0 (32) (32) 248 248 216 2216 (216) (216) 3,410 4,011 3,194 3,795 0 601 3,194 3,194 0 0 0 0 4,882 4,882 0 0 4,638 6,686 0.68 0.68 0.67 0.67
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.OPUR1 1,000 6-MOS 6-MOS DEC-31-2000 DEC-31-2000 JAN-1-2000 JAN-1-2000 JUN-30-2000 JUN-30-2000 PER-BOOK PER-BOOK 72,968 84,340 18 18 9,586 9,586 159,303 159,303 0 0 241,875 253,247 12,444 12,444 8,640 8,640 19,178 18,946 40,262 40,030 2,272 2,272 0 0 40,000 40,000 8,628 20,000 0 0 0 0 3,000 3,000 0 0 2,062 2,062 193 193 145,458 145,690 241,875 253,247 38,687 38,687 630 488 33,480 33,480 34,110 33,968 4,577 4,719 (89) (89) 4,488 4,630 1,645 2,019 2,843 2,611 79 79 2,764 2,532 2,070 2,070 1,618 1,618 6,997 6,765 2.22 2.03 2.22 2.03