Exhibit 10(d)33
AMENDMENT NO. 1
This AMENDMENT NO. 1 (this "Amendment") is dated as of
January 31, 1996 and entered into by and among RIVER BEND FUEL
SERVICES, INC., a Delaware corporation (the "Borrower"), the
financial institutions listed on the signature pages hereof
(collectively, the "Lenders") and CIBC INC., as Agent for the
Lenders (the "Agent") and is made with reference to that certain
Credit Agreement dated as of December 29, 1993 (the "Credit
Agreement"), by and between the Borrower and CIBC Inc. as the
sole initial Lender and the Agent. Capitalized terms used herein
without definition shall have the same meanings herein as set
forth in the Credit Agreement.
RECITALS
WHEREAS, the Borrower, the Lender and the Agent wish to
amend the Credit Agreement to increase the Commitment Amount from
$25,000,000 to $30,000,000; and
WHEREAS, subject to the terms and conditions of this
Amendment, the Agent and the Lender are willing to agree to such
amendment;
NOW, THEREFORE, in consideration of the premises and
the agreements, provisions and covenants herein contained, the
parties hereto agree as follows:
SECTION 1. AMENDMENTS
(a) Section 1.1 of the Credit Agreement is hereby amended
so that the amount "$30,000,000" is substituted for the amount
"$25,000,000" in the definition of "Commitment Amount" contained
therein.
(b) Section 1.1 of the Credit Agreement is hereby further
amended so that the definition of "Disclosure Documents"
contained therein reads in its entirety as follows:
"Disclosure Documents" means the following documents:
(i) the annual report of GSU on Form 10-K for the
fiscal year ended December 31, 1994;
(ii) GSU's quarterly reports on Form 10-Q for the
quarters ended March 31, June 30, and September 30, 1995;
and
(iii) the periodic reports of GSU on Form 8-K dated
July 26, 1995 and October 25, 1995, and any other periodic
reports of GSU filed with the Securities and Exchange
Commission which have been delivered to the Lenders before
January 31, 1996."
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective as of the
date hereof only upon the satisfaction of all of the following
conditions precedent (upon such satisfaction, the "Amendment
Effective Date") on or before January 31, 1996:
(a) Resolutions, etc. The Agent shall have received from
the Borrower and GSU a certificate, dated the Amendment Effective
Date, of its Authorized Officer as to
(i) resolutions of its Board of Directors or a
committee thereof then in full force and effect authorizing
the execution, delivery and performance of this Amendment,
the Notes and each other Loan Document to be executed by it;
and
(ii) the incumbency and signatures of those of its
officers authorized to act with respect to this Amendment,
the Notes and each other Loan Document executed by it,
upon which certificate each Lender may conclusively rely until it
shall have received a further certificate of an Authorized
Officer of such Obligor canceling or amending such prior
certificate.
(b) Delivery of Replacement Note. The Agent shall have
received, for the account of the Lender, its Note (substantially
in the form of Exhibit A hereto) duly executed and delivered by
the Borrower and duly authenticated by the Indenture Trustee, in
replacement of the Note No. BR-1 dated December 29, 1993 of the
Borrower payable to the order of CIBC Inc. in the maximum
principal amount of $25,000,000 which shall be marked "exchanged"
and delivered to the Indenture Trustee for cancellation.
(c) Reaffirmations of Loan Documents. The Agent shall have
received reaffirmations, dated the Amendment Effective Date, duly
executed by the appropriate Obligor, of the Loan Documents
delivered on the Effective Date substantially in the form of
Exhibit J and Exhibit K to the Credit Agreement.
(d) Opinions of Counsel. The Agent shall have received
opinions, dated the Amendment Effective Date and addressed to the
Agent and the Lender, from
(i) Laurence M. Hamric, acting as Louisiana and Texas
counsel to GSU, substantially in the form of Exhibit B
hereto;
(ii) Morgan, Lewis & Bockius, New York counsel for the
Borrower, substantially in the form of Exhibit C hereto; and
(iii) Mayer, Brown & Platt, counsel to the Agent,
substantially in the form of Exhibit D hereto.
(e) Closing Fees, Expenses, etc. The Agent shall have
received for its own account, or for the account of each Lender,
as the case may be, all fees, costs and expenses due and payable
pursuant to Sections 3.3 and 10.3 of the Credit Agreement, if
then invoiced.
(f) Trust Indenture. The Agent shall have received an
executed original of each order, certificate and opinion
delivered to the Indenture Trustee by the Borrower under Section
12.2 of the Trust Indenture in connection with the replacement
Note being provided in connection with this Amendment.
(g) Trust Agreement. The Agent shall have received an
executed original of each instruction, certificate and other
document delivered to the Owner Trustee under the Trust Agreement
in connection with the replacement Note being provided in
connection with this Amendment.
(h) Agent and Lenders Execution. On or before the
Amendment Effective Date, the Agent and the Lenders shall have
delivered to the Agent originally executed copies of this
Amendment.
(i) Compliance with Warranties, No Default, etc. The
following statements shall be true and correct on the Amendment
Effective Date, before and after giving effect to this Amendment,
and the Borrower shall have delivered to the Agent a certificate
of an Authorized Officer of the Borrower to the effect that the
following statements are true and correct on the Amendment
Effective Date, before and after giving effect to this Amendment,
(i) the representations and warranties set forth in
Article VI of the Credit Agreement (excluding, however,
those contained in Section 6.7 of the Credit Agreement)
shall be true and correct with the same effect as if then
made (unless stated to relate solely to an earlier date, in
which case such representations and warranties shall be true
and correct as of such earlier date);
(ii) except as disclosed by the Borrower to the Agent
and the Lenders pursuant to Section 6.7 of the Credit
Agreement
(1) no labor controversy, litigation, arbitration
or governmental investigation or proceeding shall be
pending or, to the knowledge of the Borrower,
threatened against the Borrower or any Obligor which
would reasonably be expected to materially adversely
affect the Borrower's or such Obligor's business,
operations, assets, revenues, properties or prospects
or which purports to affect the legality, validity or
enforceability of this Amendment, the Credit Agreement
as amended hereby (the "Amended Credit Agreement", the
Notes or any other Loan Document or any other Basic
Document; and
(2) no development shall have occurred in any
labor controversy, litigation, arbitration or
governmental investigation or proceeding disclosed
pursuant to Section 6.7 of the Credit Agreement which
would reasonably be expected to materially adversely
affect the businesses, operations, assets, revenues,
properties or prospects of the Borrower or any Obligor;
(iii) no Default shall have then occurred and be
continuing, and neither the Borrower nor any other Obligor
is in material violation of any law or governmental
regulation or court order or decree which would reasonably
be expected to materially adversely affect the businesses,
operations, assets, revenues, properties or prospects of the
Borrower or any Obligor; and
(iv) the Authorization of the Chief Accountant of the
Federal Energy Regulatory Commission dated December 9, 1988
(OCA-DAS-DA-681, Docket No. ES88-59-000) (the "FERC Order")
previously delivered to the Agent shall be in full force and
effect, without any modification.
(j) Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any
other Obligor shall be satisfactory in form and substance to the
Agent and its counsel; the Agent and its counsel shall have
received all information, approvals, opinions, documents or
instruments as the Agent or its counsel may reasonably request.
SECTION 3. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into
this Amendment and to amend the Credit Agreement in the manner
provided herein, the Borrower represents and warrants to the
Agent and each Lender that the following statements are true,
correct and complete:
(a) Corporate Power and Authority. The Borrower has all
requisite corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and
perform its obligations under, the Amended Credit Agreement and
the Notes.
(b) Authorization of Agreements. The execution and
delivery of this Amendment and the Notes and the performance of
the Amended Credit Agreement and the Notes have been duly
authorized by all necessary corporate action on the part of the
Borrower.
(c) No Conflict. The execution and delivery by the
Borrower of this Amendment and the Notes and the performance by
the Borrower of the Amended Credit Agreement and the Notes do not
and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to the Borrower or any
Obligor, the Certificate or Articles of Incorporation or Bylaws
of the Borrower or any Obligor or any order, judgment or decree
of any court or other agency of government binding on the
Borrower or any Obligor, (ii) conflict with, result in a breach
of or constitute (with due notice or lapse of time or both) a
default under any contractual obligation of the Borrower or any
Obligor, (iii) result in or require the creation or imposition of
any Lien upon any of the properties or assets of the Borrower or
any Obligor (except as provided in the Basic Documents), or (iv)
require any approval of stockholders or any approval or consent
of any Person under any contractual obligation of the Borrower or
any Obligor.
(d) Governmental Consents. The execution and delivery by
the Borrower of this Amendment and the Notes and the performance
by the Borrower of the Amended Credit Agreement and the Notes do
not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory
body, except for the FERC Order.
(e) Binding Obligation. This Amendment, the Notes and the
Amended Credit Agreement have been duly executed and delivered by
the Borrower and are the legally valid and binding obligations of
the Borrower, enforceable against the Borrower in accordance with
their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable
principles of general application.
(f) Incorporation of Representations and Warranties From
Credit Agreement. The representations and warranties contained
in Article VI of the Credit Agreement are and will be true,
correct and complete in all material respects on and as of the
Amendment Effective Date to the same extent as through made on
and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material
respects on and as of such earlier date.
(g) Absence of Default. No event has occurred and is
continuing or will result from the consummation of the
transactions contemplated by this Amendment that would constitute
a Default.
(h) Basic Documents. No modifications or amendments have
been made to the Basic Documents in effect on the Effective Date
and previously delivered to the Agent except as contemplated
thereby or hereby in connection with the issuance of Additional
Notes.
(i) Series D Notes. On the date hereof the Borrower is
issuing and selling its Intermediate Term Secured Notes, 6.48%
Series D due January 31, 1999 in the aggregate principal amount
of $20,000,000, which constitute Additional Notes, and the
issuance thereof has been completed prior to the execution and
delivery of this Amendment and the making of any additional
borrowing under the Amended Credit Agreement on the Amendment
Effective Date.
SECTION 4. MISCELLANEOUS
(a) Reference to and Effect on the Credit Agreement and the
other Loan Documents.
(1) On and after the Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import
referring to the Credit Agreement, and each reference in the
other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to
the Credit Agreement shall mean and be a reference to the
Amended Credit Agreement.
(2) Except as specifically amended by this Amendment,
the Credit Agreement and the other Loan Documents shall
remain in full force and effect and are hereby ratified and
confirmed.
(3) The execution, delivery and performance of this
Amendment shall not constitute a waiver of any provision of,
or operate as a waiver of any right, power or remedy of the
Agent or any Lender under, the Credit Agreement or any of
the other Credit Documents.
(b) Fees and Expenses. The Borrower acknowledges that all
costs, fees and expenses as described in Section 10.3 of the
Credit Agreement incurred by the Agent and its counsel with
respect to this Amendment and the documents and transactions
contemplated hereby shall be for the account of the Borrower.
(c) Headings. Section and subsection headings in this
Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.
(d) Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document.
(e) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first written
above.
RIVER BEND FUEL SERVICES, INC.
By:_____________________________
Title:__________________________
CIBC INC., as Agent
By:_____________________________
Title:__________________________
PERCENTAGE COMMITMENT LENDER
100% $30,000,000 CIBC INC.
By:_____________________________
Title:__________________________