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EXHIBIT 10.2
EXECUTION COPY
AMENDMENT NO. 1 (this "Amendment") dated as of April 29, 1999
to the Third Amended and Restated Loan Agreement dated as of December 22, 1997
(as the same may be amended, supplemented, waived or otherwise modified from
time to time, the "Loan Agreement"), among Cogentrix Virginia Leasing
Corporation, a North Carolina corporation (the "Borrower"), the several banks
and other financial institutions from time to time parties thereto (the
"Lenders"), the issuing bank named thereunder (the "Issuing Bank"), and Credit
Lyonnais, its successors and assigns, as agent thereunder (in such capacity, the
"Agent").
W I T N E S S E T H :
WHEREAS, the Borrower desires to terminate the Steam Purchase
Contract and in replacement thereof enter into (i) with BASF Corporation
("BASF") a Steam Purchase Contract, dated as of January 1, 1999, in the form
attached hereto as Exhibit A (the "BASF Steam Purchase Contract") and (ii) with
Celanese Chemical Inc. a Steam Purchase Contract dated as of January 1, 1999 in
the form attached hereto as Exhibit B (the "Celanese Steam Purchase Contract";
collectively with the BASF Steam Purchase Agreement, the "Replacement Steam
Purchase Contracts");
WHEREAS, in connection with such termination and such entering
into the Replacement Steam Purchase Contracts, the Borrower has been requested
to consent to the assignment and transfer by Clariant to BASF of all of
Clariant's rights and obligations under the Water Purchase Contract;
WHEREAS, pursuant to subsection 7.10 of the Loan Agreement,
the Borrower has requested the Lenders to consent to such termination of the
Steam Purchase Contract and to its entering into the Replacement Steam Purchase
Contracts and to its consenting to such assignment and transfer by Clariant, and
the Lenders are willing to provide such consent on the terms and conditions
contained in this Amendment, including the condition that the Loan Agreement be
amended as set forth herein;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
1. Capitalized terms used but not defined herein (including such terms
appearing in the recitals hereto) shall have the respective meanings
assigned to such terms in the Loan Agreement.
2. Each of the undersigned Lenders hereby consents to the Borrower's (i)
termination of the Steam Purchase Contract, (ii) entering into the
Replacement Steam Purchase Contracts, and (iii) consenting to the
assignment and transfer by Clariant to BASF of all of Clariant's rights
and obligations under the Water Purchase Contract.
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3. Annex A to the Loan Agreement is amended by adding the following new
definitions in alphabetical order thereto:
"BASF": BASF Corporation, a Delaware corporation.
"BASF Steam Purchase Contract": the Steam Purchase
Contract, dated as of January 1, 1999, between the Borrower
and BASF as the same may be amended, supplemented or otherwise
modified from time to time, in accordance with subsection 7.10
of the Loan Agreement.
"Celanese Chemical": Celanese Chemical Inc., a
Delaware corporation.
"Celanese Steam Purchase Contract": the Steam
Purchase Contract, dated as of January 1, 1999, between the
Borrower and Celanese Chemical as the same may be amended,
supplemented or otherwise modified from time to time, in
accordance with subsection 7.10 of the Loan Agreement.
4. (a) The definition of "Steam Purchaser" in Annex A of the Loan
Agreement is hereby deleted and replaced in its entirety with the
following new definition thereof:
"Steam Purchasers": the collective reference to BASF,
Celanese Chemical and any other party obligated to purchase
steam under either of the Steam Purchase Contracts.
(b) The definition of "Steam Purchase Contract" in Annex A of the Loan
Agreement is hereby deleted and replaced in its entirety with the
following:
"Steam Purchase Contracts": the collective reference
to the BASF Steam Purchase Contract and the Celanese Steam
Purchase Contract.
(c) The definition of "Water Purchase Contract" in Annex A of the Loan
Agreement is hereby deleted and replaced in its entirety with the
following:
"Water Purchase Contract": the Water Purchase
Contract, dated as of February 1, 1995, between BASF
Corporation (as the assignee thereunder of Clariant, the
successor thereunder of Hoechst) and the Borrower, as the same
may be amended, supplemented or otherwise modified in
accordance with subsection 7.10 of the Loan Agreement.
5. All references to the defined term "Steam Purchase Contract" in the
Loan Agreement (including, without limitation, in Annex A thereto) are
hereby deleted and replaced
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with the defined term "Steam Purchase Contracts", and all references to
the defined term "Steam Purchaser" in the Loan Agreement (including,
without limitation, in Annex A thereto) are hereby deleted and replaced
with the defined term "Steam Purchasers."
6. This Amendment (including, without limitation, the consent provided in
paragraph 2 above) shall not become effective until the date as of
which (a) this Amendment shall have been duly executed and delivered by
the Borrower, the Agent and the Required Lenders and (b) pursuant to
subsection 6.10 of the Loan Agreement the Agent shall have received,
with a copy for each Lender, an Assignment and a Consent to Assignment
with respect to each Replacement Steam Purchase Contract and the Water
Purchase Contract, each in form and substance satisfactory to the Agent
and duly executed and delivered by the appropriate parties thereto.
5. This Amendment may be signed in any number of counterparts by the
parties hereto, each of which counterparts when so executed shall be an
original, but all counterparts together shall constitute one and the
same instrument.
6. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
7. The Borrower agrees to pay and reimburse the Agent for all reasonable
expenses incurred by the Agent in connection with the preparation of
this Amendment, including, but not limited to, the reasonable fees and
disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
COGENTRIX VIRGINIA LEASING CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxxxx
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Title: Vice President and
Assistant General Counsel
CREDIT LYONNAIS,
as Agent and a Lender
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President
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XXX XXXX XX XXXX XXXXXX
By: /s/ Xxxxxx XxXxxxxxx
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Title: Relationship Manager
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
By: /s/ Xxxxxx X. Xxxxxxx
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Title: VP-Structured Finance
By: /s/ Xxxxxxx Xxxxxx
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Title: AVP
TORONTO DOMINION (TEXAS), INC.
By:
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Title:
DEUTSCHE GENOSSENSCHAFTSBANK,
CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxxx X. Xxxx
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Title: Senior Vice President
By: /s/ Xxxxxx Xxxxxxxx
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Title: Assistant Vice President
