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FIRST AMENDMENT
TO
CREDIT AGREEMENT
DATED AS OF FEBRUARY 12, 1999
BETWEEN
COGENERATION CORPORATION OF AMERICA
(f/k/a NRG GENERATING (U.S.), INC.),
AS BORROWER
AND
MEESPIERSON CAPITAL CORP.,
AS ARRANGER, LENDER, AGENT AND SECURITY TRUSTEE
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FIRST AMENDMENT
TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as
of the 12th day of February, 1999, between Cogeneration Corporation of
America (f/k/a NRG Generating (U.S.), Inc.), as the Borrower, and MeesPierson
Capital Corp., as the Arranger, the Lender, the Agent and the Security
Trustee (in such collective capacity, "MPCC"), and amends and is supplemental
to that certain Credit Agreement, dated as of December 17, 1997, between the
Borrower, and MPCC (the "Credit Agreement").
WITNESSETH:
WHEREAS, the Borrower and the Lender desire to amend the Credit
Agreement; and
NOW, THEREFORE, in consideration of the premises and such other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the Borrower and MPCC, it is hereby agreed as follows:
1. RULES OF CONSTRUCTION; DEFINITIONS. Capitalized terms not
otherwise defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
2. AMENDMENTS TO THE CREDIT AGREEMENT. (a) Subject to the terms and
conditions of this Amendment, Section 9.1(f) of the Credit Agreement is
hereby amended and supplemented by inserting the following at the end of the
Section:
; PROVIDED, HOWEVER, no Event of Default arises under this Section
9.1(f) as the result of either (i) the purported termination by PECO of
the Grays Ferry Power Purchase Agreements, (ii) the subsequent
declaration of an event of default under that certain Credit Agreement
(the "CHASE FACILITY"), dated as of March 1, 1996, among Grays Ferry,
the financial institutions party thereto and The Chase Manhattan Bank,
as agent for such financial institutions, or (iii) by reason of or due
to acceleration of the indebtedness under the Chase Facility and/or
enforcement of the lender's rights under the Chase Facility and/or any
other actions taken by PECO Energy Company or any other person or entity
under or allegedly as allowed by the Grays Ferry Power Purchase
Agreements and/or any other action taken by the lenders or any other
person or entity under or as allowed by the Chase Facility and/or events
or circumstances that result directly or indirectly from, are directly
or indirectly due to or are directly or indirectly caused by any or all
of the above, including without limitation action, events or
circumstances which with the passing
of time, or both, would or could otherwise constitute an Event of Default
under the Credit Agreement.
(b) The Credit Agreement is hereby further amended by substituting the
Schedule 2 attached hereto as Annex A in place of the existing Schedule 2.
4. BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents
that this Amendment has been duly authorized, executed and delivered by
Borrower pursuant to its corporate powers and constitutes the legal, valid
and binding obligation of Borrower. After giving effect to the amendment set
forth above in Section 2(a) above, as of the date hereof no Event of Default
has occurred and is in effect, and each representation and warranty set forth
in Section 2 of the Credit Agreement is hereby restated and affirmed as true
and correct as of the date hereof.
5. CONDITIONS PRECEDENT. The effectiveness of this Amendment shall be
subject to the conditions precedent that the Agent shall have received the
following, each in form and substance satisfactory to the Agent:
(a) this Amendment executed by each party hereto; and
(b) a fee in the amount of $187,500.00; and
(c) a written instruction from the Borrower to the Agent canceling the
undrawn commitment under the Facility
6. CONFIRMATION OF CREDIT AGREEMENT. Except as herein expressly
amended, the Credit Agreement is ratified and confirmed in all respects and
shall remain in full force and effect in accordance with its terms. Each
reference in the Credit Agreement to "this Agreement" shall mean the Credit
Agreement as amended by this Amendment, and as hereinafter amended or
restated.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
CONFLICT OF LAW RULES.
8. COUNTERPARTS. This Amendment may be executed in counterparts
which, taken together, shall constitute a single document.
9. MODIFICATIONS IN WRITING. No amendment, modifications, supplement,
termination or waiver of this Amendment shall be effective unless the same
shall be in writing and otherwise made in accordance with Section 17.5 of the
Credit Agreement.
10. EFFECTIVENESS. This amendment shall be effective as of January 1,
1999. Any payment of interest in excess of the non-default rate made by the
Borrower during the month of January 1999 shall be applied towards the fee
described in Section 5(b) hereof.
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IN WITNESS WHEREOF, each of the Borrower and MPCC caused this Amendment
to be executed by its duly authorized officer as of the 12th day of February,
1999.
COGENERATION CORPORATION OF AMERICA,
as Borrower
By: /s/ Timothy P. Hunstad
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Name: Timothy P. Hunstad
Title: V.P. and Chief Financial Officer
MEESPIERSON CAPITAL CORP.,
as Arranger, Lender, Agent and Security Trustee
By: /s/ Hendrik Vroege
--------------------------------------------
Name: Hendrik Vroege
Title: Managing Director
By: /s/ Eugene Oliva
--------------------------------------------
Name: Eugene Oliva
Title: Assistant Vice President
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