AMENDMENT NO. 1
----------------
AMENDMENT NO. 1 dated as of December 22, 1993 (the "Amendment") to the
Amendment and Restatement, dated as of April 1, 1993, of the Construction and
Term Loan Agreement, dated as of February 4, 1992 (as amended, modified or
otherwise supplemented, the "Credit Agreement") among (i) Camden ▇▇▇▇▇ ▇.▇., a
Delaware limited partnership (the "Borrower"), of which Cogen Technologies
Camden GP Limited Partnership, a Delaware limited partnership, is the sole
general partner, (ii) the lenders from time to time parties thereto (the
"Lenders"), (iii) The Bank of Tokyo Trust Company, a banking corporation
organized and existing under the laws of the State of New York, as Senior
Tranche Agent, (iv) The Toronto-Dominion Bank Trust Company, a New York trust
company, as Agent and (v) General Electric Capital Corporation, a New York
corporation ("GE Capital"), as Junior Tranche Agent, Tranche B Lender and as
issuer of the Letters of Credit.
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, the parties hereto desire to amend certain provisions of the
Credit Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises contained herein and
for other good and valuable consideration receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Credit Agreement shall have such defined meanings when used herein.
2. Amendment of Subsection 1.1. Subsection 1.1 is hereby amended by:
(a) adding thereto the following definitions in the proper
alphabetical order:
(i) "Co-Agents": the collective reference to the Senior
Tranche Agent and the Tranche A Co-Agent.
(ii) "Tranche A Co-Agent": The Toronto-Dominion Bank Trust
Company, as Tranche A co-agent for the Lenders as appointed pursuant
to subsection 10.1 hereof.
(b) deleting in the definition of "Affected Agent" the phrase
"and/or Tranche C" appearing therein;
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(c) in the definition of "Affected Lenders":
(i) deleting the phrase" and, with respect to the Tranche C
Loans, the Tranche C Loans" appearing therein; and
(ii) replacing the second comma in the second line thereof
with the word "and";
(d) amending and restating the definition of "Agents" as follows:
""Agents" the collective reference to any of the Agent, the
Co-Agents, the Senior Tranche Agent or the Junior Tranche Agent, and their
respective successors and assigns";
(e) deleting in the definition of "Base Rate" the phrase "Bankers
Trust Company" and inserting in lieu thereof the phrase "The Bank of Tokyo Trust
Company";
(f) in the definition of "Basic Documents":
(i) deleting the phrase "Partnership Agreement", appearing
therein; and
(ii) inserting the phrase ": provided that Basic Documents
shall include the Partnership Agreement for the purposes of (A) the definition
of "Requirement of Law" and (B) Section 5 hereof."
(g) deleting in clause (v) of the definition of "Eligible
Assignee" the phrase "or Tranche C Lender" appearing therein;
(h) deleting in the definition of "Fixed Charge Coverage Ratio"
the phrase "(net of any amounts payable by the Counterparty to the Borrower
under any Interest Rate Hedging Agreement during such period) to be made during
such period" appearing in clause (b) thereof and inserting in lieu thereof the
phrase "to be made during such period (1) plus any amounts due to the
Counterparty by the Borrower during such period under any Interest Rate Hedging
Agreement (2) less any amounts due to the Borrower by the Counterparty during
such period under any Interest Rate Hedging Agreement."
(i) in the definition of "Installment Payment Date":
(i) deleting the phrase "and, with respect to the Tranche C
Term Loans, the Tranche C Term Notes" appearing therein: and
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(ii) replacing the first comma in the fourth line thereof
with the word "and";
(j) deleting in the definition of "Intercreditor Agreement" the
phrase ", the Tranche C Lenders" appearing therein;
(k) deleting in the definition of "Interest Rate" the phrase "and
the Tranche C Term Loans" appearing in clause (c) thereof;
(1) deleting in the definition of "Lenders" the phrase ", the
Tranche C Lenders";
(m) deleting in the definition of "Letter of Credit", the
phrase ", the City of Camden Letter of Credit, the Tender Bond" appearing
therein;
(n) deleting the definition of "Midlantic";
(o) deleting the definition of "Midlantic Agreements";
(p) in the definition of "Permitted Liens":
(i) inserting the word "and" before the phrase "(vi) Liens
created by the PSE&G Subordinated Mortgage"; and
(ii) deleting the phrase "; and (vii) Liens created by the
Midlantic Agreements" appearing therein.
(q) deleting in the definition of "Project Contracts" the phrase
"and the Operation and Maintenance Agreement" and inserting in lieu thereof
the phrase ", the Operation and Maintenance Agreement and any gas supply
contract with a term of two years or more or representing, on an annualized
basis, greater than 50% of the Project's annual fuel supply";
(r) in the definition of "Security Agent,"
(i) deleting the phrase "Midlantic National Bank" and
inserting in lieu thereof the phrase "The Toronto-Dominion Bank Trust
Company"; and
(ii) inserting the phrase "or trust company" after the
phrase "any bank" appearing therein.
(s) amending and restating in the definition of "Security Deposit
Agreement" as follows:
"'Security Deposit Agreement': the Second Amended and
Restated Security Deposit Agreement, dated as of December 22, 1993,
among the Borrower, the Senior
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Tranche Agent, the Tranche A Co-Agent, the Junior Tranche Agent, the Agent,
GE Capital as General Partner Term Lender, Project Lender of Credit Issuer,
Senior Debt Service Reserve Letter of Credit Issuer, Senior Debt Service
Letter of Credit Issuer, Junior Debt Service Letter of Credit Issuer and
Limited Partner, the General Partner, the Security Agent and the Tranche A
and Tranche B Lenders, as the same may be amended, supplemented or
otherwise modified from time to time."
(t) deleting the definition of "Tender Bond".
(u) in the definition of "Term Loan":
(i) deleting the phrase "and the Tranche C Term Loans"; and
(ii) replacing the first comma in the second line thereof
with the word "and";
(v) in the definition of "Term Loan Conversion Date":
(i) replacing the second comma in the third line thereof
with the word "and"; and
(ii) deleting the phrase "and the Tranche C Term Notes";
(w) in the definition of "Term Notes":
(i) replacing the comma in the second line thereof with the
word "and"; and
(ii) deleting the phrase "and the Tranche C Term Notes";
(x) deleting the definitions "Tranche C Lender", "Tranche C Term
Loans" and "Tranche C Term Notes" in their entirety;
3. Amendment of Subsection 2.2. Subsection 2.2 is hereby amended
by:
(i) deleting the phrase: "and a new promissory note in respect of
the Tranche C Term Loan made by such Lender substantially in the form of
Exhibit A-3 with appropriate insertions (individually, a "Tranche C Term
Note"; collectively, the "Tranche C Term Notes")" appearing in clause (a)
thereof;
(ii) deleting clause (d) thereof in its entirety;
(iii) replacing the comma appearing in the second line of clause
(e) thereof with the word "and":
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(iv) deleting the phrase "and Tranche C Term Note" appearing
in clause (e) thereof.
4. Amendment of Subsection 3.1(a). Subsection 3.1(a) is hereby
amended by:
(i) deleting the phrase "(i)" appearing in the second line
thereof; and
(ii) deleting clause (ii) thereof in its entirety.
5. Amendment of Subsection 3.1(b). Subsection 3.1(b) is hereby
amended and restated as follows:
"(b) The Letter of Credit Issuer agrees that the Senior
Tranche Agent shall request the Borrower, and the Borrower shall
request the Letter of Credit Issuer to issue, and the Letter of Credit
Issuer shall, on the date of Amendment No. 1 hereto, issue a letter of
credit in the form attached as Exhibit A to Amendment No. 1 hereto or
on terms and conditions satisfactory to it and the Senior Tranche
Agent (the "Senior Debt Service Reserve Letter of Credit") to the
Senior Tranche Agent, for the ratable benefit of the Tranche A Term
Lenders in the amount of $4,835,552.00."
6. Amendment of Subsection 3.2. Subsection 3.2 is hereby amended
by deleting such subsection in its entirety and inserting in lieu thereof,
the following:
"The Borrower agrees to (A) reimburse the Letter of Credit
Issuer (i) for any payment made by it under any Borrower Letter of
Credit immediately upon the making of such payment by the Letter of
Credit Issuer, (ii) three Business Days after demand, for and to the
extent of any payment made by it under the Senior Debt Service Reserve
Letter of Credit in the form attached as Exhibit A to Amendment No. 1
hereto pursuant to paragraph 3 or 4 of the Drawing Certificate
attached thereto (the "Reserve Drawing Certificate") and (iii) on the
Tranche A Term Loan Maturity Date, for and to the extent of any
payment made by it under the Senior Debt Service Reserve Letter of
Credit pursuant to paragraph 5 of the Reserve Drawing Certificate and
(B) to pay interest on the unreimbursed portion of any such payment
payable under the foregoing clause (A) (i) or A(ii) until
reimbursement in full thereof at a rate per anum equal to 1.5% above
the Base Rate."
7. Amendment of Subsection 3.7. Subsection 3.7 is hereby amended
by inserting the phrase ", in its sole discretion," after the phrase "and
each Tranche A Lender" appearing in the second line thereof.
8. Amendment of Subsection 3.8. Subsection 3.8 is hereby amended
by inserting the phrase ", in its sole
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discretion," after the phrase "Term Lender" appearing in the second line
thereof.
9. Amendment of Subsection 4.1(a). Subsection 4.1(a) is hereby
amended and restated as follows:
"The Borrower agrees to pay to the Senior Tranche Agent an
administrative agent's fee on April 1, 1994, and annually, in advance,
on each anniversary of such date thereafter (the "Administrative
Agency Fees") in the amount set forth in the Letter Agreement. The
Borrower agrees to pay to the Security Agent a security agent's fee on
April 1, 1994 and annually on each anniversary of such date thereafter
(the "Security Agency Fees") in the amount set forth in the Letter
Agreement. The Administrative Agency Fees and the Security Agency Fees
are referred to herein as the "Agency Fees". No fees shall be payable
by the Borrower to the Tranche A Co-Agent or the Agent."
10. Amendment of Subsection 4.2(a). Subsection 4.2(a) is hereby
amended by:
(a) deleting the phrase "and Tranche C Term Loans" appearing in
clauses (i) and (ii) thereof; and
(b) amending and restating clause (iii) thereof as follows:
"(iii) If (i) the Fixed Charge Coverage Ratio as of any two
consecutive calendar quarters is less than 1.2 to 1.0 or (ii) if
any Event of Default has occurred and is continuing, any amount
in the Partnership Required Payments Reserve Account shall be
applied on the next succeeding Installment Payment Date (x) to
prepay the Tranche A Term Loans pro rata with respect to the
remaining scheduled repayments to be made on the Tranche A Term
Notes together with any amounts payable pursuant to subsection
4.9 in respect of the Tranche A Term Loans, and (y) upon the
payment in full of the Tranche A Term Loans and any other amounts
owing under the Tranche A Term Notes and any amounts payable
pursuant to subsection 4.9, to prepay the Tranche B Term Loans
pro rata with respect to the remaining scheduled repayments to be
made on the Tranche B Term Notes together with any amounts
payable pursuant to Subsection 4.9 in respect of the Tranche B
Term Loans and the Yield Maintenance Premium on the principal
amount of the Tranche B Term Loans prepaid."
11. Amendment of Subsection 4.2(b). Subsection 4.2(b) is hereby
amended by deleting the last sentence thereof and inserting in lieu thereof
the sentence "Optional prepayments shall be made pro-rata among the Tranche
A Term Loans and the
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Tranche B Term Loans based on total principal outstanding and then applied
based on inverse order of maturity."
12. Amendment of Subsection 4.3. Subsection 4.3 is hereby amended
by deleting the phrase "and Tranche C Term Loans" appearing in clause (a)
(iii) and (b) thereof.
13. Amendment of Subsection 4.5. Subsection 4.5 is hereby amended
by:
(i) inserting at the beginning of 4.5 the phrase "Except as set
forth in Section 4.2(a) (iii),":
(ii) deleting the phrase "and the Tranche C Loans" appearing
therein;
(iii) deleting the phrase "and the Tranche C Lenders" appearing
therein;
(iv) deleting the phrase "account no. ▇▇-▇▇▇-▇▇▇ at Bankers Trust
Company, New York, New York, ABA Number: ▇▇▇▇-▇▇▇▇-▇" appearing in the
twentieth line thereof and inserting in lieu thereof the phrase
"account no. ▇▇▇▇▇▇▇▇ Att: LAD as The Bank of Tokyo Trust Company, New
York, New York ABA Number: ▇▇▇▇-▇▇▇▇-▇".
(v) inserting the phrase "Senior Tranche" before the word "Agent"
appearing in the twelfth line thereof; and
(vi) inserting the phrase "Tranche A" before the word "Lenders"
appearing in the thirteenth line thereof.
14. Amendment of Subsection 4.7. Subsection 4.7 is hereby amended
by deleting the phrase ", Tranche C Term Loans".
15. Amendment of Subsection 5.15. Subsection 5.15 is hereby
amended by inserting the phrase ", rights or interests of the Lenders
hereunder" after the phrase "the Project" appearing in the sixteenth line
thereof;
16. Amendment of Subsection 7.3. Subsection 7.3 is hereby amended
by:
(i) deleting the reference to "7.19" appearing therein and
substituting in lieu thereof a reference to "7.15"; and
(ii) deleting the reference to "7.20" appearing therein and
substituting in lieu thereof a reference to "7.16".
17. Amendment of Subsection 7.5. Subsection 7.5(i) (v) is hereby
amended by deleting the phrase "and the Tranche C Lenders" appearing
therein.
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18. Amendment of Subsection 7.14(g). Subsection 7.14(g) is hereby
amended by inserting the phrase "a copy of each Contract and" immediately
preceding the phrase "copies of each material Governmental Approval"
appearing therein.
19. Amendment of Subsection 7.14(h). Subsection 7.14(h) is hereby
amended by:
(a) deleting the phrase "Required Lenders" and inserting in lieu
thereof, the phrase "the Co-Agents;
(b) Deleting the word "three" and inserting in lieu thereof, the
word "five"; and
(c) inserting at the end thereof, the following:
"In connection with any such approval process, in the event the
Co-Agents engage the services of an independent consulting engineer to
review the Operating Budget, they will require such independent
consulting engineer to review such Operating Budget with the Borrower
prior to making any related recommendations to the Co-Agents and to
follow standard industry practice in making such recommendations."
20. Amendment of Subsection 7.18(b). Subsection 7.18(b) is hereby
amended by inserting the phrase "or other Assigned Contract" after the
phrase "Project Contract" appearing therein.
21. Amendment to Subsection 8.6. Subsection 8.6 is hereby amended
by inserting at the end of such subsection, the following:
"The Partnership Agreement will not be amended, supplemented or
modified, if any such amendment, supplement or modification has a
material adverse affect on the Senior Obligees' (as defined in the
Intercreditor Agreement) rights under the Letter Agreement, dated as
of the date of Amendment No. 1 hereto, between GE Capital and ▇▇▇▇, as
Senior Tranche Agent, or the Assignment and Security Agreement, the
Borrower or the rights of the Tranche A Lenders to enforce their
remedies hereunder."
22. Amendment of Section 9. Section 9 is hereby amended by:
(a) deleting the phrase "Agents" appearing (i) in the second line
of the first paragraph thereof, (ii) in the fourth line of the last
paragraph thereof, (iii) in the sixth line of the last paragraph
thereof and (iv) in the eleventh line of the last paragraph thereof
and inserting in lieu thereof, the phrase "the Agent, the Senior
Tranche Agent, the Tranche A Co-Agent or the Junior/Tranche Agent";
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(b) inserting the phrase "as the case may be," immediately below
the phrase "its true and lawful attorney in-fact" appearing in the
eleventh line of the last paragraph thereof; and
(c) inserting at the end of the last paragraph thereof, the
following:
"The Tranche A Lenders and the Tranche B Lenders shall severally
have the right to cure any Event of Default, and upon cure in
full of such Event of Default, such Event of Default shall no
longer be an Event of Default hereunder. The Borrower shall
immediately reimburse the Tranche A Lenders or the Tranche B
Lenders, as the case may be, for the amount of any funds expended
to cure any Event of Default in the payment of principal,
interest or other amounts due hereunder or for the reasonable
cost of curing any other Event of Default hereunder, plus
interest thereon at the Default Rate."
(d) inserting at the end thereof, as a new final paragraph, the
following paragraph:
"Notwithstanding any provision in any of the Basic Documents,
references to the Intercreditor Agreement appearing in the Basic
Documents shall be of no force and effect with respect to the manner
in which the Borrower is required to perform its obligations under the
Basic Documents, but to the contrary, provided the Borrower has
complied with the terms of the Basic Documents as if the term
"Intercreditor Agreement" had not appeared therein, the Borrower will
be deemed to have complied fully with its obligations under the Basic
Documents."
23. Amendment of Subsection 9(e). Subsection 9(e) is hereby
amended by:
(a) inserting the phrase "(other than the Counterparty with
respect to the Interest Rate Hedging Agreement)" after the phrase "any
Agent or any Lender" appearing in the fifteenth line thereof;
(b) inserting the phrase "(other than the Counterparty with
respect to the Interest Rate Hedging Agreement)" after the phrase "any
Agent or any Lender" appearing in the sixteenth line thereof; and
(c) inserting the phrase "(other than the Counterparty with
respect to the Interest Rate Hedging Agreement)" after the phrase "any
Agent or any Lender" appearing in the nineteenth line thereof;
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24. Amendment of Subsection 9(j). Subsection 9(j) is hereby
amended by inserting the phrase "(or any successor or assign which is (a)
an affiliate of GE Capital or (b) satisfactory to the Required Lenders)"
after the phrase "General Partner" appearing therein.
25. Amendment of Subsection 10.1. Subsection 10.1 is hereby
amended by:
(a) deleting the phrase "and each Tranche C Lender" appearing
therein; and
(b) inserting after the phrase "as are reasonably incidental
thereto." appearing in the eleventh line thereof, the following
sentence:
"Each Tranche A Lender hereby irrevocably appoints and authorizes
the Tranche A Co-Agent to act as its agent hereunder and under
the other Basic Documents with such powers as are expressly
delegated to the Tranche A Co-Agent by the terms of this
Agreement and the other Basic Documents, together with such other
powers as are reasonably incidental thereto."
26. Amendment of Subsection 11.2. Subsection 11.2 is hereby
amended by:
(a) deleting the address of the Senior Tranche Agent appearing
therein and inserting in lieu thereof, the following:
"The Bank of Tokyo Trust Company
1251 Avenue of the Americas
Project Finance, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Manager, Project Finance
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇"
(b) deleting the address of the Agent appearing therein and
inserting in lieu thereof, the following:
"The Toronto-Dominion Bank Trust Company
c/o The Toronto-Dominion Bank
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager Credit Administration
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Toronto-Dominion Bank
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Director Utilities Project Finance
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇"
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27. Amendment to Subsection 11.5. Subsection 11.5 is hereby
amended by inserting at the end thereof, the following:
"The Borrower will pay the reasonable expenses of any independent
consulting engineer engaged by the Co-Agents to advise the Co-Agents
and the Tranche A Lenders with respect to its annual review of the
Operating Budget pursuant to subsection 7.14 (h) hereof."
28. Amendment and Restatement to Schedule 8. Schedule 8 is hereby
amended and restated as follows:
"The Bank of Tokyo Trust Company
1251 Avenue of the Americas
Project Finance, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Manager, Project Finance
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Toronto-Dominion Bank
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager Credit Administration
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Toronto-Dominion Bank
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Director Utilities
and Project Finance
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇"
29. Completion Budget. Attached hereto as Exhibit B is the
Completion Budget in form and substance satisfactory to the parties hereto.
30. Limited Effect. Except as expressly amended hereby, all of
the provisions of the Credit Agreement shall continue to be, and shall
remain, in full force and effect in accordance with their terms.
31. Counterparts. This Amendment may be executed in any number of
counterparts, all of which together shall constitute one and the same
instrument.
32. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered by their proper and duly authorized officers as of the
date first above written.
THE TORONTO-DOMINION BANK TRUST
COMPANY, as Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------
Title:
THE TORONTO-DOMINION BANK, as
Tranche A Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------
Title:
THE BANK OF TOKYO TRUST COMPANY, as
Senior Tranche Agent and Tranche
A Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Original Agent,
Tranche B Lender and Letter of
Credit Issuer
By: /s/ ▇▇▇▇▇▇▇ ▇. TZOUPUCKIN
-----------------------------
Title:
CAMDEN ▇▇▇▇▇ ▇.▇.
By: Cogen Technologies Camden
GP Limited Partnership,
a Delaware limited partnership,
its general partner
By: Cogen Technologies
Camden, Inc., a
Texas corporation,
its general partner
By: /s/
-----------------------------
Title: