FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT is made and entered into
effective as of the 19th day of December, 1997 (this "Amendment") between COGEN
TECHNOLOGIES NJ VENTURE, a New Jersey general partnership (the "Borrower") and
SOUTHWEST BANK OF TEXAS, N.A. a national banking association (the "Bank").
RECITALS
A. The Borrower and the Bank previously entered into that certain Revolving
Credit Loan Agreement dated as of December 19, 1996 (the "Agreement pursuant to
which the Bank agreed to provide revolving credit loans to the Borrower upon the
terms and conditions as provided therein.
B. The Borrower and the Bank now desire to extend the Maturity Date of the
Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration and the mutual benefits, covenants and agreements herein
expressed, the parties hereto now agree as follows:
1. All capitalized terms used in this Amendment and not otherwise defined
herein shall have the meanings ascribed to such terms in the Agreement.
2. The definitions of "Agreement" and "Maturity Date" in Section 1.01 of
the Agreement are hereby amended to read as follows:
"Agreement" shall mean this Revolving Credit Loan Agreement, as amended by
the First Amendment dated as of December 19, 1997 as the same may be further
amended or supplemented from time to time.
"Maturity Date" shall mean December 18, 1998.
3. Section 1.01 of the Agreement is hereby supplemented, where
alphabetically appropriate, with the addition of the following definitions:
"First Amendment" shall mean that certain First Amendment to Credit
Agreement dated effective as of December 19, 1997 between the Borrower and the
Bank.
"Termination Date" shall mean Maturity Date.
4. Section 5.08(e) of the Agreement is hereby deleted in its entirety, and
the following is substituted therefor:
"(e) Compliance Certificate. As soon as available and in any event within
twenty (20) days after the end of each calendar quarter, a Compliance
Certificate in the form of Exhibit B executed by an appropriate authorized
officer of the managing general partner of the Borrower (i) certifying that
to the best of his knowledge no Default or Event of Default has occurred
and is continuing, or if a Default or Event or Default has occurred and is
continuing, a statement as to the nature thereof and the action which is
proposed to be taken with respect thereto, and (ii) with computations
demonstrating compliance with the covenants contained in Article VII."
5. Section 9.13 of the Agreement is hereby amended by deleting the second
paragraph thereof, and the following is substituted therefor:
"For the purpose of determining the Highest Lawful Rate, the Bank hereby
elects to determine the applicable rate ceiling under Article 5069-ID of the
Texas Revised Civil Statutes by the indicated (weekly) rate ceiling from time to
time in effect."
6. The Borrower represents and warrants to the Bank that:
a. The liens and security interests created by the Security Agreement
for the benefit of the Bank are perfected, valid and subsisting;
b. Each and every representation and warranty set forth in the
Agreement and/or the other Loan Documents is true and correct in
all material respects as of the date of this First Amendment, or
if any such representation and warranty relates to a specific
date, as of such date;
c. (i) The execution, delivery and performance of this First
Amendment are within the corporate power and authority of the
Borrower and have been duly authorized by appropriate proceedings
and (ii) this First Amendment constitutes a legal, valid and
binding obligation of the Borrower, enforceable in accordance with
its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the rights
of creditors generally and general principles of equity.
d. As of the effective date of this First Amendment, no Event of
Default or event which with notice or lapse of time, or both,
would become an Event of Default has occurred and is continuing.
7. The Bank hereby waives any non-compliance with the terms and provisions
of Section 6.01 of the Agreement with respect to the lien of MidAtlantic
National Bank for sixty (60) days from the date hereof.
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8. Except as expressly provided herein, the Agreement and the other
instruments and agreements referred to herein or in the Agreement are not
amended, modified or affected by this First Amendment, and all such documents
are and shall remain in full force and effect from the date of this First
Amendment forward, except as specifically amended by this First Amendment.
9. On and after the date on which this First Amendment becomes effective,
the terms "hereof", "herein", "hereunder" and terms of like import, when used in
the Agreement shall, except where the context otherwise requires, refer to the
Agreement, as amended by this First Amendment.
10. THE AGREEMENT, THIS AMENDMENT, THE NOTE, THE SECURITY AGREEMENT, THE
AUTOPAY AGREEMENT AND EACH OTHER DOCUMENT OR INSTRUMENT EXECUTED IN CONNECTION
WITH THE AGREEMENT REPRESENT, COLLECTIVELY, THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN OR ORAL
AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed effective as of the date first above written.
BORROWER: COGEN TECHNOLOGIES NJ VENTURE
By: Cogen Technologies NJ, Inc.
as Managing General Partner
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxx
Title: Treasurer
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BANK: SOUTHWEST BANK OF TEXAS, N.A.
By: /s/ Yale Xxxxx
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Name: Yale Xxxxx
Title: SVP
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