AMENDMENT NO. 2
Dated as of June 1, 1989
to
CONSTRUCTION AND TERM CREDIT AGREEMENT
Dated as of July 18, 1988
between
O'BRIEN (NEWARK) COGENERATION, INC.
and
NATIONAL WESTMINSTER BANK PLC
Acting through its NEW YORK BRANCH
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AMENDMENT NO. 2, dated as of June 1, 1989, (the "Amendment")
to the Construction and Term Credit Agreement, dated as of July
18, 1988, as amended by Amendment No. 1 to Credit Agreement,
dated as of April 1, 1989 (the "Credit Agreement") between
O'BRIEN (NEWARK) COGENERATION, INC., a Delaware corporation (the
"Company"), and NATIONAL WESTMINSTER BANK PLC, acting through its
New York branch (the "Bank").
W I T N E S S E T H:
WHEREAS, the parties desire to amend certain provisions of
the Credit Agreement.
NOW, THEREFORE, the Company and the Bank hereby agree as
follows:
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SECTION I. Definitions.
Unless otherwise defined herein, all capitalized terms used
herein which are defined in the Credit Agreement shall have their
respective meanings as therein defined.
SECTION II. Amendments.
The Credit Agreement is amended as follows:
1. The definition of "Eurodollar Loan" is amended in its
entirety to read as follows:
"'Eurodollar Loan' shall mean a loan bearing the
Eurodollar Rate plus the Eurodollar Margin."
2. The definition of "Eurodollar Margin" in Article I is
amended in its entirety to read as follows:
"'Eurodollar Margin' shall have the meaning ascribed
thereto in Section 2.10(a)(i) hereof."
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3. The definition of "Interest Period" in Article I is
amended in its entirety to read as follows:
"'Interest Period' shall mean, with respect to
each Bank Rate Loan or Eurodollar Loan, as applicable,
the period commencing on the date of such Loan and,
thereafter, each subsequent period commencing on the
day immediately succeeding the last day of the
immediately preceding Interest Period and ending on the
last day of such period as selected by the Company
pursuant to the provisions below. The duration of each
such Interest Period shall be (a) in the case of a Bank
Rate Loan, not less than one (1) day, and (b) in the
case of a Eurodollar Loan, 30, 60, 90 or 180 days, or,
if available in the sole determination of the Bank, one
year, as the Company may, upon notice received by the
Bank not later than 10:00 a.m., New York City time, on
the third Business Day prior to the first day of the
Interest Period selected; provided, however, that:
(i) if any Interest Period would otherwise end on
a day which is not a Business Day, that Interest Period
shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar
month, in which case such Interest Period shall end on
the next preceding Business Day;
(ii) the Company may not select an Interest Period
that would extend beyond the Construction Loan
Expiration Date; and
(iii) the duration of any Interest Period which
commences before any Semi-annual Payment Date and would
otherwise end after such Semi-annual Payment Date shall
end on such Semi-annual Payment Date with respect to
the principal amount of the Term Loan being repaid on
such date."
4. Subsection 2.03(a)(iii) is amended in its entirety to
read as follows:
"(iii) The interest rate option and Interest
Period selected by the Company to apply to such
Construction Loan, including the initial Interest
Period for a specified number of days and, for a Loan
for which the Eurodollar Rate is selected, the
commencement date with respect to the Eurodollar Rate
for such Loan, subject to the provisions set forth in
the definition of Interest Period; and"
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5. A new subsection 2.03(f) is added to Section 2.03:
"(f) Any Construction Loan may be comprised of
one or more (i) Bank Rate Loan or (ii) Eurodollar Loan,
or any combination of the foregoing, as the Company
shall determine from time to time and notify the Bank
in accordance with the terms hereof; provided, however,
that any Bank Rate Loan or Eurodollar Loan shall each
be in a minimum aggregate amount of $500,000."
6. Subsection 2.07(a) is amended in its entirety to read
as follows:
"(a) At least three (3) Business Days prior to
the Construction Loan Expiration Date the Company shall
provide prior written notice to the Bank setting forth
the total principal amount of the proposed Term Loan
determined in accordance with Section 2.05(a) hereof,
as well as the interest rate option(s) to apply to the
Term Loan and the duration of the initial Interest
Period(s) with respect to such interest rate option(s).
Such notice having been so provided, and subject to the
satisfaction of the conditions set forth in Section
4.03 hereof in the Bank's sole discretion, on the
Construction Loan Expiration Date the Bank shall
release the proceeds of its Term Loan to the Company at
the Bank's Lending Office no later than 6:00 p.m., New
York City time, in funds immediately available at such
Lending Office. The proceeds of the Term Loan together
with the Equity Contribution, if then due, shall
immediately be applied to payment of the outstanding
principal amount of the Construction Loan Note."
7. Subsection 2.08(a)(iii) is amended in its entirety to
read as follows:
"(iii) on the last day of the first Interest
Period to terminate following receipt by the Bank of
its portion of Insurance Proceeds pursuant to Section
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7.02(b)(iii) hereof or Eminent Domain Proceeds pursuant
to the Section 7.03 hereof."
8. Subsection 2.08(b)(iii) is amended in its entirety to
read as follows:
"(iii) on the last day of the first Interest
Period to terminate following receipt by the Bank of
its portion of Insurance Proceeds pursuant to Section
7.02(b)(iii) hereof or Eminent Domain Proceeds pursuant
to the Section 7.03 hereof."
9. Section 2.10 is amended in its entirety to read as
follows:
"Section 2.10. Interest.
(a) The Company agrees to pay interest on the
unpaid principal amount of the Loans from the date
thereof to maturity (whether by acceleration or
otherwise), at a rate per annum (based on a year of 360
days and actual days elapsed) for each day of the
applicable Interest Period equal to either (1) the
Eurodollar Rate for such day plus the applicable
Eurodollar Margin if such Loan is a Eurodollar Loan, or
(2) the Bank Rate for such day if such Loan is a Bank
Rate Loan. Interest shall accrue from, and include the
date of a Loan, to and including the date of any
repayment and shall be payable in accordance with
Section 2.14(a) hereof. The following describes the
two interest rate options:
(i) Eurodollar Loan. If any Loan or
portion of a Loan is a Eurodollar Loan,
interest at a rate equal to the Eurodollar
Rate for such day plus the applicable
Eurodollar Margin. The "Eurodollar Margin"
shall be equal to the following percentages;
(i) 7/8 of 1% per annum during the period
from the Closing Date to and including the
Construction Loan Expiration Date, (ii) 1 and
1/8% per annum during the period from the
Construction Loan Expiration Date to and
including the date which is the sixth
anniversary thereof, (iii) 1 and 1/4% per
annum during the period from the sixth
anniversary thereof to and including the
ninth anniversary thereof and (iv) 1 and 3/8%
per annum thereafter.
(ii) Bank Rate Loan. If any Loan or a
portion of a Loan is a Bank Rate Loan,
interest at a rate equal to the Bank Rate for
such day.
(b) Not later than three (3) Business Days prior
to the last day of any Interest Period, the Company
shall notify the Bank by irrevocable written notice as
to the duration of the next succeeding Interest Period
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and the interest rate option(s) selected. If the
Company fails to give such notice to the Bank, Section
2.11(d) hereof shall be applicable."
10. Subsection 2.14(a) is amended in its entirety to read
as follows:
"(a) The Company shall make each payment to the
Bank hereunder, under the Notes or otherwise in
connection with the Loans without defense, set-off or
counterclaim not later than 4:00 p.m., New York City
time, on the day when due in Dollars to the account of
National Westminster Bank PLC, New York Branch, as
directed by the Bank in writing. Any such payments
received after 4:00 p.m., New York City time, on any
day will be deemed to have been received on the next
succeeding Business Day. Interest on Bank Rate Loans
shall be payable on the last day of each March, June,
September and December and on maturity. Interest on
Eurodollar Loans shall be payable on the last day of
the applicable Interest period; provided, however, that
interest on any Eurodollar Loan with an Interest Period
of 90 days or greater shall be payable on the last day
of each 90-day period within such Interest Period."
11. Item number 9 of Exhibit C to the Credit Agreement is
amended to read in its entirety as follows:
"9. $___________ of the Construction Loan shall
be a Bank Rate Loan for which the initial Interest
Period shall be one (1) day. At the expiration of this
initial Interest Period such Bank Rate Loan shall
automatically daily renew as a Bank Rate Loan having an
Interest Period of one (1) day until the Company gives
the Bank written notice pursuant to the terms of this
Agreement specifying a different Interest Period and/or
Loan type. - and/or - $______ of the Construction Loan
shall be a Eurodollar Loan for which the initial
Interest Period shall be __________ days at the
Eurodollar Rate with a term commencing on ___________
__, 19__ with respect to such Eurodollar Loan."
12. Section II, Paragraph 14 of Amendment No. 1 to the
Credit Agreement, dated as of April 1, 1989, is amended to read
in its entirety as follows:
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'Exhibit B to the Credit Agreement is deleted in
its entirety and a new Exhibit B, in the form attached
hereto, is substituted therefor.'
SECTION III. Continuous Effect.
Except as expressly amended hereby, all of the terms and
provisions of the Credit Agreement shall remain in full force and
effect and are hereby restated as of the date hereof, ratified
and confirmed.
SECTION IV. Governing Law.
This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION V. No Novation.
This Amendment does not extinguish the outstanding
indebtedness or discharge or release the lien or priority of any
mortgage, security agreement or any other security for the
obligations of the Company. Nothing herein shall be construed as
a substitution or novation of the original indebtedness or
instruments securing the same, which shall remain in full force
and effect, except as expressly modified hereby or by instruments
executed concurrently herewith and in accordance herewith. The
Company agrees that at any time, and from time to time, at the
expense of the Company, the Company will promptly execute and
deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that the
Bank may reasonably request, in order to perfect and protect
rights granted or purported to be granted hereby or to enable the
Bank to exercise and enforce its rights and remedies hereunder.
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SECTION VI. Representations and Warranties.
The Company represents and warrants that (a) all of the
representations and warranties set forth in Article III of the
Credit Agreement are true and correct in all material respects on
and as of the effective date hereof with the same effect as if
made on such date and (b) as of the date hereof, the Company is
in compliance with all of the terms and provisions set forth in
the Credit Agreement on its part to be performed and no Event of
Default or event which, upon the giving of notice or lapse of
time or both, would constitute an Event of Default has occurred
and is continuing.
SECTION VII. Security Agreement.
The Company hereby confirms that all of the amounts owed to
the Bank under the Construction Note are secured by the Security
Agreement and that the Security Agreement shall be deemed to be
amended hereby to the extent necessary (i) to accomplish the
foregoing and (ii) to confirm and acknowledge that the
"Obligations," as defined in Section 8 of the Security Agreement,
include the obligations under the Credit Agreement (as amended by
this Amendment) and all amendments, extensions, renewals or
substitutions, if any, subsequent hereto.
SECTION VIII. Counterparts.
This Amendment may be executed in two or more counterparts,
each of which shall constitute an original, but all of which when
taken together shall constitute but one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered in New York, as of
the day and year first above written.
O'BRIEN (NEWARK)
COGENERATION, INC.
By:/s/
---------------------------------
Name:
Title: President
NATIONAL WESTMINSTER BANK PLC,
acting through its New York Branch
By:/s/
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Name:
Title: