JP MORGAN PROMISSORY NOTE
Exhibit 10(i)40
|
|
|
|
$15,000,000.00
|
Albany, New York
|
|
|
Date: April 23, 2008
|
FOR
Value Received, CENTRAL HUDSON GAS & ELECTRIC CORPORATION, a
New York corporation (the “Debtor”), HEREBY PROMISES TO
PAY to the order of JPMORGAN CHASE BANK, N.A. (the
“Bank”), at its offices located at 12 Corporate Woods
Blvd., Albany, New York 12211, or at such other place as the Bank
or any holder hereof may from time to time designate, the principal
sum of Fifteen Million and 00/100 Dollars ($15,000,000), or such
lesser amount as may constitute the outstanding balance hereof, in
lawful money of the United States, on or before the earlier of (i)
On demand; (ii) June 30, 2009 (the “Termination Date”);
or (iii) the date set forth on the Grid Schedule attached hereto as
the maturity date (the “Maturity Date”) with respect to
each loan made hereunder (each a “Loan” and
collectively, the “Loans”); and to pay interest in like
money at said office or place from the date hereof on the unpaid
principal balance of each Loan made hereunder at a rate equal to
the “Applicable Interest Rate” (as hereinafter defined)
for such Loan, which interest shall be payable on the first day of
each month commencing with the first month immediately following
the date of a Loan and on the Maturity Date for such Loan or until
such Loan shall be due and payable by acceleration or otherwise,
and thereafter, on demand. Interest after the Maturity Date for a
Loan or after a Loan becomes due and payable by acceleration or
otherwise shall be payable at a rate of two percent (2%) per annum
above the Bank’s Prime Rate, which rate shall be computed for
the actual number of days elapsed on the basis of a 360-day year
and shall be adjusted as of the date of each such change, but in no
event higher than the maximum permitted under applicable law.
“Prime Rate” shall mean the rate of interest as is
publicly announced at the Bank’s principal office from time
to time as its Prime Rate.
The
Bank is authorized to enter on the Grid Schedule attached hereto
(i) the amount of each Loan made from time to time hereunder, (ii)
the date on which each Loan is made, (iii) the Maturity Date for
each Loan, which in no event shall be a date later than the
Termination Date; (iv) the Interest Rate agreed upon between the
Debtor and the Bank for each Loan (each such rate, the
“Applicable Interest Rate” being either the
“Fixed Rate”, or the “Prime Rate”, as
hereinabove defined); (v) the amount of each payment made
hereunder, and (vi) the outstanding principal balance of the Loans
hereunder from time to time, all of which entries, in the absence
of manifest error, shall be conclusive and binding on the Debtor;
provided, however, that the failure of the Bank to make any such
entries shall not relieve the Debtor from its obligation to pay any
amount due hereunder.
“Fixed
Rate” means a rate of interest per annum quoted to the Debtor
by the Bank in its discretion, from time to time at the request of
the Debtor, by 11:00 a.m., New York City time, upon one (1)
Business Days’ prior request therefor by the Debtor; such
quoted rate shall be the fixed rate which would be applicable to a
Fixed Rate Loan by the Bank on the requested date for the proposed
borrowing, in the specified amount and with the specified Interest
Period; the Debtor may request a Fixed Rate Loan on the basis of
such quote, Notwithstanding any other provision of this Note, (i)
rates quoted by the Bank shall be determined in the sole discretion
of the Bank by reference to such factors and considerations as the
Bank shall deem relevant, and (ii) the Bank shall not be required
to quote any rate at all for any proposed Loan or upon the
termination of an Interest Period relating to any existing
Loan.
“Interest
Period” means as to any Fixed Rate Loan the period mutually
agreed upon by the Debtor and the Bank; provided, however, that (i)
if any Interest Period would end on a day which shall not be a
Business Day, such Interest Period shall be extended to the
succeeding Business Day, and (ii) no Interest Period may be
selected which expires later than the Termination Date.
“Business
Day” shall mean any day that is not a Saturday, Sunday or
legal holiday in which banks in New York City are open for
business.
The
Debtor shall not have the right to prepay any Loan bearing interest
at the Fixed Rate prior to the Maturity Date of such Loan. In the
event the Debtor does prepay such a Loan prior to its Maturity
Date, the Debtor shall reimburse the Bank on demand for any loss
incurred or to be incurred by it in the reemployment of the funds
released by any prepayment.
If
the Debtor shall default in the punctual payment of any sum payable
with respect to, or in the observance or performance of any of the
terms and conditions of, this Note, or any other agreement with or
in favor of the Bank, or if a default or event of default that is
accelerated shall occur for any reason under any such agreement, or
if the Debtor shall default with respect to any other obligations
for borrowed money, or if the Bank shall, in its sole discretion,
consider any of the obligations of the Debtor hereunder insecure,
or if any warranty, representation or statement of fact made in
writing to the Bank at any time by an officer, agent or employee of
the Debtor is false or misleading in any material respect when
made, or if the Debtor shall be dissolved or shall fail to maintain
its existence in good standing, or if the usual business of the
Debtor shall be suspended or terminated, or if any levy, execution,
seizure, attachment or garnishment shall be issued, made or filed
on or against any material portion of the property of the Debtor,
or if the Debtor shall become insolvent (however defined or
evidenced), make an assignment for the benefit of creditors or make
or send a notice of intended bulk transfer, or if a committee of
creditors is appointed for, or any petition or proceeding for any
relief under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, receivership, liquidation or
dissolution law or statue now or hereafter in affect (whether at
law or in equity) is filed or commenced by or against the Debtor or
any material portion of its property, or if any trustee or receiver
is appointed for the Debtor or any such property - then and in any
such event, in addition to all rights and remedies of the Bank
under applicable law and otherwise, all such rights and remedies
being cumulative, not exclusive and enforceable alternatively,
successively and/or concurrently, the Bank may, at its option,
declare any and all of the amounts owing under this Note to be due
and payable, whereupon the maturity of the then unpaid balance
hereof shall be accelerated and the same, together with all
interest accrued hereon, shall forthwith become due and
payable.
The
Debtor hereby waives diligence, demand, presentment, protest and
notice of any kind, and assents to extensions of the time of
payment, release, surrender or substitution of security, or
forbearance or other indulgence, without notice.
This
Note may not be changed, modified or terminated orally, but only by
an agreement in writing signed by the Debtor and the
Bank.
In
the event the Bank or any holder hereof shall refer this Note to an
attorney for collection, the Debtor agrees to pay, in addition to
unpaid principal and interest, all the costs and expenses incurred
in attempting or effecting collection hereunder, including
reasonable attorney’s fees, whether or not suit is
instituted.
In
the event of any litigation with respect to this Note, the Debtor
waives the right to a trial by jury and all rights of setoff and
rights to interpose counter-claims and cross-claims. The Debtor
hereby irrevocably consents to the jurisdiction of the courts of
the State of New York and of any Federal court located in such
State in connection with any action or proceeding arising out of or
relating to this Note. The execution and delivery of this Note has
been authorized by the Board of Directors and by any necessary vote
or consent of the stockholders of the Debtor. The Debtor hereby
authorizes the Bank to complete this Note in any particulars
according to the terms of the Loan evidenced hereby.
This
Note shall be governed by an construed in accordance with the laws
of the State of New York applicable to contracts made and to be
performed in such State, and shall be binding upon the successors
and assigns of the Debtor and inure to the benefit of the Bank, its
successors, endorsees and assigns.
If
any term or provision of this Note shall be held invalid, illegal
or unenforceable, the validity of all other terms and provisions
hereof shall in no way be affected thereby.
CENTRAL HUDSON GAS & ELECTRIC
CORPORATION
