EXHIBIT 10(b)(i)
AMENDMENT NO. 1 AND WAIVER NO. 1
UNDER CREDIT AGREEMENT
AMENDMENT NO. 1 AND WAIVER NO. 1 (this "AMENDMENT"), dated as of August
18, 1999, under the Credit Agreement (the "CREDIT AGREEMENT"), dated as of June
30, 1997, by and among XXXXX CORPORATION, a Delaware corporation (the
"BORROWER"), the Signatory Lenders party thereto (the "LENDERS") and THE BANK OF
NEW YORK, as Agent (the "AGENT").
RECITALS
A. Capitalized terms used herein which are not herein defined shall
have the respective meanings ascribed thereto in the Credit Agreement.
B. The Borrower has entered into an agreement to purchase the equity
interest of the PacifiCorp. in a entity that owns a power plant in the
Philippines.
C. One of the conditions to the closing of such purchase is that the
Borrower procure a standby letter of credit in the amount of $31,883,000 (the
"Philippines Letter of Credit").
D. The Borrower has requested that the L/C Issuing Bank issue the
Philippines Letter of Credit pursuant to the Credit Agreement.
E. To facilitate the Borrower's request, the Borrower has requested
that the Agent and the Lenders agree to (i) amend the Credit Agreement to
increase the Letter of Credit Sub-Facility from $30,000,000 to $33,000,000 and
(ii) waive compliance by the Borrower with the notice provisions of Section
2.20(b) of the Credit Agreement for the purposes of the issuance of the
Philippines Letter of Credit.
F. The Agent and the Lenders are willing to agree to the Borrower's
request subject to the terms and conditions set forth herein.
Accordingly, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. Section 2.20(a) of the Credit Agreement is amended by deleting the
reference to "$30,000,000" contained in such section and replacing it with
"$33,000,000."
2. The Agent and the Lenders waive, for the purpose and only for the
purpose of the issuance of the Philippines Letter of Credit, compliance with the
provisions of Section 2.20(b) of the Credit Agreement requiring Borrower to
provide at least three (3) Business Days notice prior to the requested date of
the issuance of a Letter of Credit.
3. The effectiveness of this Amendment and Waiver is subject to the
prior or simultaneous fulfillment of the following conditions:
(a) The Agent shall have received (i) this Amendment executed by a
duly authorized officer or officers of the Borrower and (ii) consents to this
Amendment and Waiver from the Required Lenders; and
(b) The Agent shall have received such other documents as it shall
have reasonably requested.
4. The Borrower hereby (i) reaffirms and admits the validity and
enforceability of the Credit Agreement and the other Loan Documents and all of
its obligations thereunder, (ii) represents and warrants that there exists no
Default or Event of Default, and (iii) represents and warrants that the
representations and warranties contained in the Credit Agreement as amended by
this Amendment (other than the representations and warranties made as of a
specific date) are true and correct in all material respects on and as of the
date hereof.
5. This Amendment and Waiver may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute one agreement. It shall not be necessary in making proof of this
Amendment to produce or account for more than one counterpart signed by the
party to be charged.
6. This Amendment and Waiver is being delivered in and is intended to
be performed in the State of New York and shall be construed and enforceable in
accordance with, and be governed by, the internal laws of the State of New York
without regard to principles of conflict of laws.
7. Except as amended hereby, the Credit Agreement shall in all other
respects remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
and Waiver to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
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