AMENDMENT NUMBER TWO TO LOAN AGREEMENT
Execution
Version
AMENDMENT
NUMBER TWO
This
AMENDMENT NUMBER TWO TO LOAN AGREEMENT (this “Agreement”),
dated
as of February 22, 2008, among MACQUARIE DISTRICT ENERGY, INC., a Delaware
corporation (the ”Borrower”);
the
several banks and other financial institutions signatories hereto; LASALLE
BANK
NATIONAL ASSOCIATION, as Issuing Bank (in such capacity, the “Issuing
Bank”);
and
DRESDNER BANK AG NEW YORK BRANCH, as Administrative Agent (in such capacity,
the
“Administrative
Agent”).
RECITALS
A. The
parties hereto are parties to the Loan Agreement dated as of September 21,
2007
by and among the Borrower, the several banks and other financial institutions
from time to time parties thereto as lenders (the “Lenders”),
the
Issuing Bank and the Administrative Agent, as amended by Amendment Number One,
dated December 21, 2007 (collectively, the “Loan
Agreement”),
pursuant to which the Lenders have agreed to provide certain loans to the
Borrower for the purposes and upon the terms and conditions set forth
therein.
B. The
Borrower and the Lenders have agreed to amend (i) the mandatory prepayment
provisions contained in Sections
2.9(c)(vi)
and
2.9(c)(viii)
of the
Loan Agreement, together with such conforming changes as may be necessary and
(ii) certain Forms of Borrowing Requests contained in Exhibits
A-2
and
A-3
of the
Loan Agreement, as set forth herein.
NOW
THEREFORE, the parties hereto hereby agree as follows:
Section
1. Definitions
and Rules of Interpretation.
All
capitalized terms used but not defined in this Agreement shall have the
respective meanings specified in the Loan Agreement. The rules of interpretation
set forth in Section
1
of the
Loan Agreement shall apply to this Agreement, mutatis
mutandis,
as if
set forth herein.
Section
2. Amendment
to Loan Agreement.
a. The
mandatory prepayment provision in Section
2.9(c)(vi)
of the
Loan Agreement is hereby deleted and replaced in its entirety with the
following:
“Commencing
on the Calculation Date following the fifth anniversary of the Effective Date
and on each subsequent Calculation Date, the Borrower shall, promptly and,
in
any event, no later than ten (10) Business Days following each such Calculation
Date, prepay the Loans with 100% of Excess Cash Flow.”
b. The
definition of “Revised Base Case Projections” in Section
1.1
of the
Loan Agreement is hereby deleted and replaced in its entirety with the
following:
“Revised
Base Case Projections”
means,
updated Base Case Projections, reflecting any changes thereto as a consequence
of the Revised Use Agreement Termination Date.
c. The
definition of “Revised Use Agreement Termination Date” in Section
1.1
of the
Loan Agreement is hereby deleted and replaced in its entirety with the
following:
“Revised
Use Agreement Termination Date”
means,
the date to which the term of the Use Agreement is extended beyond December
31,
2020, if such extension occurs.
d. The
mandatory prepayment provision in Section
2.9(c)(viii)
of the
Loan Agreement is hereby deleted and replaced in its entirety with the
following:
“If
during any fiscal year of the Borrower, the amount of Net Contract Termination
Proceeds for such fiscal year exceeds $1,000,000, the Borrower shall, promptly
after the contract termination, cancellation or non-renewal which results in
such an excess or an increase in such an excess, prepay the Loans in an amount
equal to 100% of the Net Contract Termination Proceeds for such fiscal year.
The
Borrower shall not be obligated to make a prepayment under this Section
2.9(c)(viii)
if and
to the extent that
(A)
no
Lock-Up Period is in effect,
(B)
the
Borrower makes a representation in writing to the Administrative Agent at the
time the relevant Loan Party or Subsidiary receives such Net Contract
Termination Proceeds that it or another Loan Party intends to reinvest such
proceeds (1) within the same line of business which the relevant Loan Party
is
currently engaged, (2) within the United States of America, and (3) exclusively
in Growth Capital Expenditures; and
(C)
the
Borrower makes a representation in writing to the Administrative Agent within
90
days of the relevant Loan Party or Subsidiary receiving such Net Contract
Termination Proceeds that (1) it or another Loan Party has allocated such
proceeds to specified and described Growth Capital Expenditure project(s),
(2)
it is reasonable to expect that such reinvestment shall generate future annual
revenues equal to at least 90% of those generated in the prior fiscal year
by
the terminated, cancelled or non-renewed contract giving rise to such proceeds,
and (3) it is reasonable to expect that such annual revenue amounts shall be
reached within two (2) years from the date of such reinvestment.
Any
Net
Contract Termination Proceeds in excess of $1,000,000 retained by the Borrower
but not actually reinvested in a manner consistent with the representations
of
the Borrower and this Section
2.9(c)(viii)
within
such time period and subject to such conditions shall at that time immediately
be used to prepay the Loans in accordance with the first sentence of this
Section
2.9(c)(viii).”
2
e. The
Forms
of Borrowing Requests contained in Exhibits
A-2
and
A-3
to the
Loan Agreement are hereby deleted and replaced with Exhibits
A-2
and
A-3
hereto.
Section
3. No
Further Waiver or Amendment.
Except
to the extent that provisions of the Loan Agreement are amended as expressly
set
forth in Section
2
hereof,
the execution and delivery hereof shall not (a) operate as a modification or
waiver of any right, power or remedy of the Financing Parties or the Collateral
Agent under any of the Loan Documents, (b) cause a novation with respect to
any
of the Loan Documents, or (c) extinguish or terminate any obligations of the
Borrower under the Loan Documents.
Section
4. Governing
Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF
THE STATE OF NEW YORK.
Section
5. Severability.
If any
provision of this Agreement is held to be illegal, invalid or unenforceable,
the
legality, validity and enforceability of the remaining provisions of this
Agreement shall not be affected or impaired thereby. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section
6. Headings.
The
headings in this Agreement have been included herein for convenience of
reference only, are not part of this Agreement, and shall not be taken into
consideration in interpreting this Agreement.
Section
7. Entire
Agreement.
This
Agreement comprises the complete and integrated agreement of the parties hereto
on the subject matter hereof and supersedes all prior agreements, written or
oral, on such subject matter.
Section
8. Counterparts.
This
Agreement may be executed by one or more of the parties hereto on any number
of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be maintained by the Borrower and
the
Administrative Agent.
[Signature
pages follow.]
3
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized as of the day and year first
above
written.
| MACQUARIE DISTRICT ENERGY, INC., as Borrower | ||
| By: |
/s/
▇▇▇▇▇ Bump
|
|
| Name: |
▇▇▇▇▇
Bump
|
|
| Title: |
President
and CEO
|
|
AMENDMENT
NO. 2 TO MACQUARIE DISTRICT ENERGY LOAN AGREEMENT
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized as of the day and year first
above
written.
| DRESDNER BANK AG NEW YORK BRANCH, as Administrative Agent and Lender | ||
| By: |
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Title: |
Director
|
|
| By: |
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
| Name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Title: |
Vice
President
|
|
AMENDMENT
NO. 2 TO MACQUARIE DISTRICT ENERGY LOAN AGREEMENT
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized as of the day and year first
above
written.
| LASALLE BANK NATIONAL ASSOCIATION, as Issuing Bank and Lender | ||
| By: |
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
| Name: |
▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
| Title: |
First
Vice President
|
|
AMENDMENT
NO. 2 TO MACQUARIE DISTRICT ENERGY LOAN AGREEMENT
Exhibit
A-2
to
Loan Agreement
FORM
OF CAPITAL EXPENDITURE LOAN BORROWING REQUEST
Dresdner Bank
AG, New York and Grand Cayman Branches
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
| Attention: |
Credit
Administration
|
| Telephone: |
▇▇▇-▇▇▇-▇▇▇▇
|
| Facsimile: |
▇▇▇-▇▇▇-▇▇▇▇
|
Re:
Borrowing
Request
This
Borrowing Request is delivered pursuant to Section 2.2(b)
of the
Loan Agreement dated as of September 20, 2007 (the “Loan
Agreement”),
among
Macquarie District Energy, Inc. (the “Borrower”),
the
Lenders party thereto, and Dresdner Bank AG New York Branch, as Administrative
Agent for the Lenders (the “Administrative
Agent”).
All
capitalized terms used but not defined herein shall have the meanings specified
in the Loan Agreement.
The
Borrower hereby irrevocably requests a Borrowing of Term Loans as
follows:
| 1. |
Requested
Date of Borrowing:
|
|
|||
| 2. |
Aggregate
Amount of Requested Borrowing:
|
$
|
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||
| 3. |
Requested
initial Interest Period:
|
|
The
Borrower hereby certifies to the Administrative Agent and each Capital
Expenditure Loan Lender that (a) the proceeds of the requested Capital
Expenditure Loans will be applied as set forth in Schedule 1
hereto,
which uses are permitted by the Loan Agreement, (b) as of the date of this
Borrowing Request, all of the conditions precedent set forth in Sections 4.1
or
4.2,
as
applicable, of the Loan Agreement have been satisfied or waived by the Lenders,
and on the date specified in Item 1 above, the Borrower will have satisfied
all such conditions precedent to the Capital Expenditure Loans requested hereby,
(c) as of the date of this Borrowing Request, each of the representations
and warranties of the Borrower set forth in Article
V
of the
Loan Agreement is true and correct to the extent provided therein and each
such
representation and warranty will be true and correct on and as of the date
of
the Borrowing requested hereby as if made on and as of such date (except to
the
extent that such representations and warranties relate solely to an earlier
date, in which case such representations and warranties were true and correct
on
and as of such date), and (d) no Default or Event of Default has occurred
and is continuing.
Exh.
A-2-1
Schedule
1
Please
wire transfer the proceeds of the Borrowing to the accounts of the following
Persons at the financial institutions indicated below.
|
Person
to be Paid
|
||||||
|
Amount
to be Transferred
for Maintenance Capital Expenditures
|
Name
of Payee
|
Account
No.
|
Name,
Address, ABA#, and
Attn:
|
|||
|
$
|
|
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|||
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||||||
|
Attention:
|
||||||
|
Amount
to be
Transferred
for Growth Capital Expenditure
|
Name
of Payee
|
Account
No.
|
Name,
Address, ABA#, and
Attn:
|
|||
|
$
|
|
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|||
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Attention:
|
Dated:_________________
|
MACQUARIE
DISTRICT ENERGY, INC.,
|
||
|
as
Borrower
|
||
|
By:
|
||
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Name:
|
||
|
Title:
|
||
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By:
|
||
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Name:
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||
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Title:
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||
Exh.
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
to
Loan Agreement
FORM
OF REVOLVING LOAN BORROWING OR LETTER OF CREDIT REQUEST
Dresdner Bank
AG, New York and Grand Cayman Branches
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
| Attention: |
Credit
Administration
|
|
Telephone:
|
▇▇▇-▇▇▇-▇▇▇▇
|
| Facsimile: |
▇▇▇-▇▇▇-▇▇▇▇
|
Re:
Borrowing
Request
This
Borrowing Request is delivered pursuant to Section 2.3(b)
of the
Loan Agreement dated as of September 20, 2007 (the “Loan
Agreement”),
among
Macquarie District Energy, Inc. (the “Borrower”),
the
Lenders party thereto, among Dresdner Bank AG New York Branch, as Administrative
Agent for the Lenders (the “Administrative
Agent”).
All
capitalized terms used but not defined herein shall have the meanings specified
in the Loan Agreement.
The
Borrower hereby irrevocably requests a Borrowing of Revolving Loans as
follows:
| 1. |
Requested
Date of Borrowing:
|
|
|||
| 2. |
[Aggregate
Amount of Requested Borrowing] / [Face amount of Letter of
Credit]:
|
$
|
|
||
| 3 |
[The
requested initial Interest Period] / [Expiration date of Letter of
Credit]:
|
|
The
Borrower hereby certifies to the Administrative Agent that (a) the proceeds
of the requested Revolving Loans will be applied as set forth in Schedule 1
hereto,
which uses are permitted by the Loan Agreement, (b) as of the date of this
Borrowing Request, all of the conditions precedent set forth in Sections 4.1
or
4.2,
as
applicable, of the Loan Agreement have been satisfied or waived by the
Administrative Agent, and on the date specified in Item 1 above, the
Borrower will have satisfied all such conditions precedent to the Revolving
Loans requested hereby, (c) as of the date of this Borrowing Request, each
of the representations and warranties of the Borrower set forth in Article
V
of the
Loan Agreement is true and correct to the extent provided therein and each
such
representation and warranty will be true and correct on and as of the date
of
the Borrowing requested hereby as if made on and as of such date (except to
the
extent that such representations and warranties relate solely to an earlier
date, in which case such representations and warranties were true and correct
on
and as of such date), and (d) no Default or Event of Default has occurred
and is continuing.
Exh.
A-3-1
Schedule
1
Please
wire transfer the proceeds of the Borrowing to the accounts of the following
Persons at the financial institutions indicated below.
|
Person
to be Paid
|
||||||
|
[Amount
to be Transferred]
/ [Face Amount of Letter of Credit]
|
Name
of Payee
|
Account
No. (if applicable)
|
Name,
Address, ABA#, and
Attn:
|
|||
|
$
|
|
|
|
|||
|
|
||||||
|
Attention:
|
||||||
|
$
|
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|
|
|||
|
|
||||||
|
Attention:
|
Dated:____________________
|
MACQUARIE
DISTRICT ENERGY, INC.,
|
||
|
as
Borrower
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Exh.
A-3-2