Exhibit 10.85
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"),
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Bankers Trust Company, a New York banking corporation, as Disbursement Agent
(the "Disbursement Agent"), and Credit Lyonnais, New York Branch ("Credit
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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"). (All capitalized terms
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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 Disbursement 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 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 Agreement ("Amendment No. 2");
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WHEREAS, the Lessor, the Lessee, the Agent and the Disbursement Agent
desire to amend 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,
Bankers Trust Company, as Bond Trustee (in such capacity, the "Bond Trustee")
and Environmental Power Corporation, a Delaware corporation ("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, simultaneously herewith the Lessor, the Lessee, the Agent,
the Disbursement Agent, the Bond Trustee and EPC are entering into Amendment No.
1 to 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, unless
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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 Amendment No. 1 thereto.
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 Date:
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a) Section 5.01 of the Amended and Restated Disbursement Agreement is
hereby amended by replacing the word "and" before the "(iii)" in the first
sentence with a comma and adding the following to the end of the first sentence:
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"and (iv) all amounts received by Borrower or Lessee in respect of any
proceeds of insurance or claims against GEC Alsthom relating to the
generator bars."
(b) Clause Eighth of Section 5.02 (a) (x) of the Amended and
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Restated Disbursement Agreement is amended to read in its entirety as follows:
"Eighth, an amount selected by the Borrower to repay principal of
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Working Capital Loans and/or subject to Section 5.07(f) of the Amended
and Restated Reimbursement Agreement, Debt Service Loans."
(c) Clause Seventh of Section 5.02 (a) (Y) of the Amended and Restated
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Disbursement Agreement is amended to read in its entirety as follows:
"Seventh, (a) to the payment of any Debt Service (Tranche A) Loan, if
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necessary, to reduce such loan balance to the Required Maximum Debt
Service (Tranche A) Loan Amount for such Payment Date, and (b) then
to the payment of any outstanding Debt Service (Tranche B) Loan,
provided, however, that in the event that the Required Maximum Debt
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Service (Tranche A) Loan Amount has been reduced to zero (0) under
clauses (a) (ii) or (a) (iii) of the definition thereof, then amounts
under this clause Seventh shall be applied to the payment of
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outstanding Debt Service (Tranche A) Loans and outstanding Debt
Service (Tranche B) Loans, pro rata based on the principal amount of
Debt Service (Tranche A) Loans and principal amount of Debt Service
(Tranche B) Loans, respectively, bears to the aggregate outstanding
principal amount of Debt Service (Tranche A) Loans and Debt Service
(Tranche B) Loans."
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(d) A new Schedule IIA in the form of Exhibit A hereto is
hereby added to the Amended and Restated Disbursement Agreement.
Section 3. Reference to and Effect on the Loan Documents.
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(a) Upon the effectiveness of this Amendment No. 1, each reference in
the Amended and Restated Disbursement Agreement to "this Agreement",
"hereunder", "hereof", "herein", or words of like import, and each
reference in the Notes and the other Loan Documents to the Amended and
Restated Disbursement Agreement, shall mean and be a reference to the
Amended and Restated Disbursement 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 Disbursement 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 nor constitute a waiver of any
provision of any of the Loan Documents.
Section 4. Execution in Counterparts. This Amendment No. 1
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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 to be an original and all of which taken
together shall constitute one and the same instrument.
Section 5. Expenses. Without limiting its obligations
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under 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 are
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included herein for convenience of reference only and shall not
constitute a part
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of this Amendment No. 1 for any other purpose.
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
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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. Wendy Kumer
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Name: K. Wendy Kumer
Title: Assistant Vice President
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
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Exhibit A
Schedule IIA
[insert same as Schedule 5.02A to RLA]
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SCHEDULE 5.02A to Amended and Restated Reimbursement Agreement
*= Calculation Date
(1) Maximum Debt Service
Payment (Tranche A) Loan
Date Amount
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18 June 3, 1997 3,000,000
19* July 2, 1997 3,000,000
20 August 1, 1997 3,000,000
21 September 3, 1997 3,000,000
22* October 2, 1997 3,000,000
23 October 31, 1997 3,000,000
24 December 4, 1997 3,000,000
25* January 2, 1998 3,000,000
26 February 3, 1998 3,000,000
27 March 4, 1998 3,000,000
28* April 1, 1998 3,000,000
29 May l, 1998 3,000,000
30 June 3, 1998 3,000,000
31* July 1, 1998 2,400,000
32 July 31, 1998 2,400,000
33 September 2, 1998 2,400,000
34* October 2, 1998 2,400,000
35 November 2, 1998 2,400,000
38 December 3, 1998 2,400,000
37* January 4, 1999 1,800,000
38 February 3, 1999 1,800,000
39 March 3, 1999 1,800,000
40* March 31, 1999 1,800,000
41 May 3, 1999 1,800,000
42 June 3, 1999 1,800,000
43* July 1, 1999 1,200,000
44 August 2, 1999 1,200,000
45 September l, 1999 1,200,000
46* October 4, 1999 1,200,000
47 November 2, 1999 1,200,000
48 December 2, 1999 1,200,000
49* December 31, 1999 600,000
50 February 2, 2000 600,000
51 March 2, 2000 600,000
52* March 31, 2000 600,000
53 May 3, 2000 600,000
54 June 1, 2000 600,000
55 July 3, 2000 0
Thereafter
(1) Corresponds to Payment Dates on Schedule 5.02 to Amended and Restated
Reimbursement Agreement
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