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EXHIBIT 10.3
FIRST AMENDMENT TO
COMPOSITE AMENDMENT
AND CONSENT TO
PROJECT LOAN AGREEMENT
AND SECURITY DEPOSIT AGREEMENT
FIRST AMENDMENT, dated as of December 18, 1996, to the
Composite Amendment and Consent to Project Loan Agreement and Security Deposit
Agreement, among the persons parties to (i) the LOAN AND REIMBURSEMENT AGREEMENT
(as amended, supplemented or otherwise modified from time to time, the "Project
Loan Agreement"), dated as of May 18, 1994 and (ii) the SECURITY DEPOSIT AND
INTERCREDITOR AGREEMENT (as amended, supplemented or otherwise modified from
time to time, the "Security Deposit Agreement"), dated as of May 18, 1994.
W I T N E S S E T H
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WHEREAS, (a) BIRCHWOOD POWER PARTNERS, L.P. (the "Borrower"),
(b) the several banks parties to the Project Loan Agreement (collectively, the
"Banks"), (c) JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, ALLSTATE INSURANCE
COMPANY, NEW YORK LIFE INSURANCE COMPANY, and other institutions parties to the
Project Loan Agreement (collectively, the "Institutions"), (d) BANQUE PARIBAS,
NEW YORK BRANCH, BARCLAYS BANK PLC, CREDIT SUISSE and UNION BANK OF CALIFORNIA,
as co-agents for the Banks (in such capacity, the "Co-Agents"), (e) CREDIT
SUISSE and CREDIT SUISSE, NEW YORK BRANCH, as Issuing Bank (in such capacity,
the "Issuing Bank," and together with the Banks and the Institutions, the
"Lenders") and (f) CREDIT SUISSE as administrative agent for the Banks and the
Issuing Bank (in such capacity, the "Administrative Agent") are parties to the
Project Loan Agreement;
WHEREAS, the parties to the Project Loan Agreement further
amended, confirmed and restated the Project Loan Agreement by that certain
Composite Amendment to Project Loan Agreement and Security Deposit Agreement,
dated as of April 10, 1996 (the "Composite Amendment"); and
WHEREAS, the parties to the Project Loan Agreement have agreed
to amend further the Project Loan Agreement, as set forth below;
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NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein,
terms which are defined in the Project Loan Agreement and used herein are used
herein as defined in the Project Loan Agreement.
SECTION 2. Amendment to Section 7.4(c). Section 7.4(c) of the
Project Loan Agreement is hereby amended by adding "Except as otherwise provided
in Section 10.31," to the beginning of the second sentence, and by changing the
word "Partial" to "partial".
SECTION 3. Amendment to Section 10.31(a). Section 10.31(a) is
hereby amended by adding the following sentence at the end of the section:
"Notwithstanding anything to the contrary in the first
sentence of this Section 10.31(a), if one or more Bank Loan
Installment Payment Dates occur before the Initial Repayment
Date, the amounts that would, absent this sentence, be payable
in accordance with the first sentence of this Section 10.31(a)
on such Loan Installment Payment Dates shall not be required
to be paid by the Borrower on such dates, but shall instead be
paid on the Initial Repayment Date, together with the amount
payable in accordance with the first sentence of this Section
10.31(a), and such amounts, the repayment of which is deferred
to the Initial Repayment Date, shall bear interest to the
Initial Repayment Date at the rates applicable thereto."
SECTION 4: Other Matters
A. Effectiveness. This First Amendment shall
become effective as of the date that the Administrative Agent
shall have received counterparts of this First Amendment, duly
executed by the Borrower, the Administrative Agent, the
Issuing Bank and the Majority Lenders.
B. Continuing Effect; No Other Amendments.
Except as expressly amended or modified hereby, all the
provisions of the Project Loan Agreement are and shall remain
in full force and effect.
C. GOVERNING LAW. THIS FIRST AMENDMENT SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
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D. Counterparts. This First Amendment may be
executed by the parties hereto in any number of separate
counterparts, each of which shall be an original and all of
which taken together shall be deemed to constitute one and the
same instrument.
E. Fees and Expenses. The Borrower agrees to
reimburse the Administrative Agent for all of its
out-of-pocket costs and expenses incurred in connection with
the negotiation, preparation, execution and delivery of this
First Amendment including, without limitation, the fees and
disbursements of Simpson Thacher & Bartlett, counsel to the
Administrative Agent.
BIRCHWOOD POWER PARTNERS, L.P.
By: SEI Birchwood, Inc., a General Partner
By: /s/ T. E. Dorsey
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Name: Thomas E. Dorsey
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Title: Vice President
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By: Cogentrix/Birchwood Two, L.P., a
General Partner
By: Cogentrix of Birchwood I, Inc., its
Sole General Partner
By: /s/ Elizabeth L. Rippetoe
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Name: Elizabeth L. Rippetoe
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Title: Vice President and
Assistant General
Counsel
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CREDIT SUISSE, as Security Agent
By: /s/ Steven Dowe
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Name: Steven Dowe
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Title: Associate
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By: /s/ Kevin V. Soucy
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Name: Kevin V. Soucy
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Title: Associate
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CREDIT SUISSE and CREDIT SUISSE, NEW
YORK BRANCH, as Issuing Bank, as
Administrative Agent, as Co-Agent, as a
Bank, as a Secured Counterparty and as a
Secured Party
By: /s/ Steven Dowe
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Name: Steven Dowe
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Title: Associate
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By: /s/ Kevin V. Soucy
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Name: Kevin V. Soucy
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Title: Associate
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BANQUE PARIBAS, NEW YORK BRANCH as a
Co-Agent, as a Bank and as Secured Party
By: /s/ Frances Ballard, Sr.
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Name: Frances Ballard, Sr.
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Title: Vice President
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By: /s/ David Lee
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Name: David Lee
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Title: Vice President
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BANQUE PARIBAS, PARIS as a Secured Party
and as a Secured Counterparty
By:
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Name:
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Title:
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By:
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Name:
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Title:
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BARCLAYS BANK PLC as Co-Agent, as a
Bank, as a Secured Counterparty and as a
Secured Party
By:
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Name:
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Title:
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THE TORONTO-DOMINION BANK as a Bank and
as a Secured Party
By: /s/ Linda Lavin
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Name: Linda Lavin
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Title: Director
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NATIONAL WESTMINSTER BANK as a Bank and
as a Secured Party
By:
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Name:
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Title:
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BANQUE NATIONALE DE PARIS as a Bank and
as a Secured Party
By: /s/ Peter A. Ryan
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Name: Peter A. Ryan
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Title: Vice President
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THE FUJI BANK LTD. as a Bank and as a
Secured Party
By: /s/ Mr. T. Mitsui
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Name: Mr. T. Mitsui
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Title: Vice President and Manager
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THE BANK OF NOVA SCOTIA as a Bank and as
a Secured Party
By: /s/ Gary Sabris
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Name: Gary Sabris
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Title:
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THE SANWA BANK, LIMITED, NEW YORK BRANCH
as a Bank and as a Secured Party
By:
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Name:
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Title:
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JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY as an Institution and as a
Secured Party
By: /s/ Daniel R. Revers
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Name: Daniel R. Revers
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Title: Investment Officer
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JOHN HANCOCK VARIABLE LIFE INSURANCE
COMPANY as an Institution and as a
Secured Party
By: /s/ M. M. Stapleton
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Name: M. M. Stapleton
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Title: Vice President
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MELLON BANK, N.A., solely in its
capacity as Trustee for AT&T MASTER
PENSION TRUST as an Institution and as a
Secured Party
AS DIRECTED BY JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY, and not in its
individual capacity
By: /s/ Patricia J. Veilleux
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Name: Patricia J. Veilleux
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Title: Associate Counsel
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MELLON BANK, N.A., solely in its capaicy
as Trustee FOR NYNEX MASTER PENSION
TRUST as an Institution and as a Secured
Party
AS DIRECTED BY JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY, and not in its
individual capacity
By: /s/ Patricia J. Veilleux
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Name: Patricia J. Veilleux
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Title: Associate Counsel
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COMMONWEALTH OF PENNSYLVANIA STATE
EMPLOYEES' RETIREMENT SYSTEM as an
Institution and as a Secured Party
By: John Hancock Mutual Life Insurance
Company, as Investment Adviser
By: /s/ M. M. Stapleton
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Name: M. M. Stapleton
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Title: Vice President
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ALLSTATE INSURANCE COMPANY as an
Institution and as a Secured Party
By: /s/ S. M. Laude
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Name: Steven M. Laude
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Title: Authorized Signatory
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ALLSTATE LIFE INSURANCE COMPANY as an
Institution and as a Secured Party
By: /s/ S. M. Laude
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Name: Steven M. Laude
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Title: Authorized Signatory
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ALLSTATE LIFE INSURANCE COMPANY OF NEW
YORK, as an Institution and as a Secured
Party
By: /s/ S. M. Laude
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Name: Steven M. Laude
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Title: Authorized Signatory
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NEW YORK LIFE INSURANCE COMPANY, as an
Institution and as a Secured Party
By: /s/ Jamie N. Manson
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Name: Jamie N. Manson
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Title: Assistant Vice President
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UNION BANK OF CALIFORNIA, N.A. as a
Co-Agent, as a Bank, as a Secured
Counterparty and as a Secured Party
By: /s/ Melisa M. Lewis
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Name: Melisa M. Lewis
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Title: Vice President
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