EXHIBIT 10.72
AMENDMENT NO. 1, dated as of May 22, 1997, among Scrubgrass
Generating Company, L.P., a limited partnership duly organized and validly
existing under the laws of the State of Delaware, as Lessor (the "Lessor"),
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Buzzard Power Corporation, a Delaware corporation, as Lessee (the
"Lessee"), Bankers Trust Company, a New York banking corporation, as
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Disbursement Agent (in such capacity, the "Disbursement Agent"), Bankers
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Trust Company, as Bond Trustee (in such capacity, the "Bond Trustee"),
Credit Lyonnais, New York Branch ("Credit Lyonnais"), in its capacity as
agent for the Banks and the LOC Issuer (in such capacity, as described more
specifically in the Amended and Restated Reimbursement Agreement referred
to below, the "Agent") and Environmental Power Corporation, a Delaware
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corporation ("EPC"). (All capitalized terms used herein shall, unless the
context otherwise requires or unless they are otherwise defined herein,
have the meanings assigned to such terms in the Amended and Restated
Participation Agreement, as hereinafter defined).
WHEREAS, the Borrower, the Banks, the Agent, National Westminster
Bank Plc, acting through its New York Branch, ("NatWest") in its capacity
as the Bond LOC Issuer (as defined in the Amended and Restated
Reimbursement Agreement referred to below) and Landesbank Hessen-Thuringen
Girozentrale, New York Branch, in its capacity as the Contract LOC Issuer
(as so defined) , are parties to an Amended and Restated Reimbursement and
Loan Agreement dated December 22, 1995 (as heretofore modified and
supplemented and in effect on the date hereof, the "Amended and Restated
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Reimbursement Agreement");
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WHEREAS, the Lessor, the Lessee, the Disbursement Agent and the
Agent have entered into an Amended and Restated Disbursement and Security
Agreement, dated as of December 22, 1995 (as amended and supplemented and
in effect on the date hereof, the "Amended and Restated Disbursement
Agreement");
WHEREAS, the Borrower has requested that the Banks agree to amend
the terms and conditions of the Debt Service Loans, and the Banks are
willing to do so as set forth in Amendment No. 2 dated as of May 22, 1997
to the Amended and Restated Reimbursement
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Agreement ("Amendment No. 2");
WHEREAS, simultaneously herewith, the Lessor, the Lessee, the
Agent and the Disbursement Agent are entering into Amendment No. 1 to the
Amended and Restated Disbursement Agreement in order to reflect the amended
terms and conditions of the Debt Service Loans;
WHEREAS, the Lessor, the Lessee, the Agent, the Disbursement
Agent, the Bond Trustee and EPC have entered into an Amended and Restated
Participation Agreement dated as of December 22, 1995 (as amended and
supplemented and in effect on the date hereof, the "Amended and Restated
Participation Agreement"); and
WHEREAS, the Lessor, the Lessee, the Agent, the Disbursement
Agent, the Bond Trustee and EPC desire to amend the Amended and Restated
Participation Agreement in order to reflect the amended terms and
conditions of the Debt Service Loans.
NOW, THEREFORE, in consideration of the premises and of the
agreements contained herein, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used herein shall,
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unless the context otherwise requires or they are otherwise defined herein,
have the meanings set forth in the Amended and Restated Participation
Agreement, as amended by this Amendment No. 1.
In addition, the following term shall have the following meaning
when used in this Amendment No. 1:
"Effective Date" shall mean the date upon which each of the
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conditions precedent set forth in Section 4 of Amendment No. 2. shall have
been satisfied.
Section 2. Amendments. Effective on and as of the Effective
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Date, Appendix I to the Amended and Restated Participation Agreement is
amended as follows:
(a) All terms defined in Appendix I by cross-reference to defined
terms in the Amended and Restated Reimbursement Agreement shall mean such
defined
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terms, including incorporation of any new defined terms, all as set forth
in Amendment No. 2.
(b) The following new terms shall have the following meanings:
"Debt Service (Tranche A) Loans" shall have the meaning ascribed
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thereto in Section 5.07(a) of the Amended and Restated Reimbursement
Agreement.
"Debt Service (Tranche A) Loan Suspension Period" shall mean any
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period beginning on the second of two consecutive Calculation Dates for
which the average of the Debt Service Coverage Ratios for each such
Calculation Date and the Calculation Date immediately preceding each such
Calculation Date are less than 1.30:1 and ending upon the earlier of: (a)
the second of two consecutive Calculation Dates for which the average of
the Debt Service Coverage Ratios for each such Calculation Date and the
Calculation Date immediately preceding each such Calculation Date are
greater than or equal to 1.40:1 and (b) July 3, 2000.
"Debt Service (Tranche B) Loans" shall have the meaning ascribed
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thereto in Section 5.07(b) of the Amended and Restated Reimbursement
Agreement.
"Maximum Debt Service (Tranche A) Loan Amount" shall mean, for
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any Payment Date, the amount set forth for such Payment Date on Schedule
5.02A; provided, that each such amount shall be reduced (but not below
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zero) by an amount equal to the amount (if any) of proceeds of insurance or
claims against GEC Alsthom relating to the generator bars.
"Required Maximum Debt Service (Tranche A) Loan Amount" shall
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mean (a) zero (0) (i) during a Debt Service (Tranche A) Loan Suspension
Period, (ii) following the occurrence of the Debt Service (Tranche A) Loan
Commitment Expiration Date pursuant to clause (a) of the definition thereof
or (iii) in the event that the outstanding amount of Debt Service (Tranche
A) Loans have not been reduced to the then applicable Maximum Debt Service
(Tranche A) Loan Amount by the third Payment Date for which such Maximum
Debt Service (Tranche A) Loan Amount is in effect, and (b) the applicable
Maximum Debt Service
(Tranche A) Loan Amount during all other periods.
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Section 3. Reference to and Effect on the Transaction Documents.
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(a) Upon the effectiveness of this Amendment No. 1, each reference in the
Amended and Restated Participation Agreement to "this Agreement",
"hereunder", "hereof", "herein", or words of like import, and each
reference in the Transaction Documents to the Amended and Restated
Participation Agreement, shall mean and be a reference to the Amended and
Restated Participation Agreement as amended hereby and as the same may be
further amended, supplemented and otherwise modified and in effect from
time to time.
(b) Except as expressly provided herein, the Amended and
Restated Participation Agreement shall remain unchanged and in full force
and effect.
(c) The execution, delivery and effectiveness of this Amendment
No. 1 shall not, except as expressly provided herein, operate as a waiver
of any right, power or remedy of any Bank or the Agent under any of the
Loan Documents or the Transaction Documents nor constitute a waiver of any
provision of any of the Loan Documents or the Transaction Documents.
Section 4. Execution in Counterparts. This Amendment No. 1 may
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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 to be an original and all of which taken together shall
constitute one and the same instrument.
Section 5. Expenses. Without limiting its obligations under
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Article XV of the Amended and Restated Reimbursement Agreement, the
Borrower agrees to pay, on demand, all reasonable out-of-pocket costs and
expenses of the Agent and the Banks (including, without limitation, the
reasonable fees and disbursements of Skadden, Arps, Slate, Meagher & Flom
LLP, special counsel to the Agent and the LOC Issuers) incurred in
connection with the negotiation, preparation, execution and delivery of
this Amendment No. 1.
Section 6. Headings. Section headings in this Amendment No. 1
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are included herein for convenience of reference only and shall not
constitute a part of this Amendment No. 1 for any other purpose.
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Section 7. Binding Effect. This Amendment No. 1 shall be
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binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
Section 8. GOVERNING LAW. THIS AMENDMENT NO.1 SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO THE CONFLICTS
OF LAW EXCEPT SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND
ANY SUCCESSOR STATUTE THERETO).
The next page is the signature page.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be executed by their respective duly authorized officers as
of the date first above written.
LESSOR
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SCRUBGRASS GENERATING
COMPANY, L.P.
By: /s/ Donald C. Sturmer
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Name: Donald C. Sturmer
Title: Vice President
AGENT
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CREDIT LYONNAIS, NEW YORK BRANCH, as Agent and as a
Bank
By: /s/ Robert G. Colvin
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Name: Robert G. Colvin
Title: Vice President
DISBURSEMENT AGENT
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BANKERS TRUST COMPANY
By: /s/ K. W. Kumer
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Name: K. Wendy Kumer
Title: Assistent Vice President
BOND TRUSTEE
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BANKERS TRUST COMPANY
By: /s/ K. W. Kumer
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Name: K. Wendy Kumer
Title: Assistent Vice President
6
LESSEE
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BUZZARD POWER CORPORATION
By: /s/William D. Linehan
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Name: William D. Linehan
Title: Chief Financial Officer
EPC
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ENVIRONMENTAL POWER CORPORATION
By: /s/William D. Linehan
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Name: William D. Linehan
Title: Chief Financial Officer
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