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SEVENTH AMENDMENT
TO REIMBURSEMENT AND LOAN AGREEMENT
SEVENTH AMENDMENT, dated as of December 1, 1997 (this "Seventh
Amendment"), to the REIMBURSEMENT AND LOAN AGREEMENT, dated as of December 1,
1990, as amended by the First Amendment thereto dated as of February 1, 1991,
the Second Amendment thereto dated as of December 1, 1991, the Third Amendment
thereto dated as of December 15, 1993, the Fourth Amendment thereto dated as of
February 15, 1995, the Fifth Amendment thereto dated as of June 1, 1995 and the
Sixth Amendment thereto dated as of March 31, 1996 (the "Reimbursement
Agreement"), among Cogentrix of Richmond, Inc. (the "Borrower"), Banque Paribas,
New York Branch, as letter of credit issuer (the "Issuing Bank"), Banque
Paribas, New York Branch, and each other financial institution party thereto
(the "Lenders"), and Banque Paribas, New York Branch, as agent for the Issuing
Bank and the Lenders (the "Agent").
The Borrower has requested that the Lenders amend Section 10.18 of the
Reimbursement Agreement to permit the Borrower to change its fiscal year end
from June 30 to December 31 of each year, and the Lenders party hereto are
willing to agree to such request upon the terms and conditions set forth herein.
Accordingly, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein shall
have the respective meanings assigned to such terms in the Reimbursement
Agreement.
2. Amendment of Reimbursement Agreement. Section 10.18 of the
Reimbursement Agreement is hereby amended by deleting the reference therein to
"June 30" and substituting in lieu thereof "December 31".
3. Waiver. The provisions of Section 11.11 of the Reimbursement
Agreement that require at least 60 days' prior written notice to the Agent of a
change in the Borrower's fiscal year are hereby waived to the extent necessary
to permit the transactions contemplated by this Seventh Amendment.
4. Financial Statements. For purposes of Section 10.08(a) of the
Reimbursement Agreement, for the six-month period beginning July 1, 1997 and
ending December 31, 1997, the Borrower hereby agrees to furnish or cause to be
furnished to the Agent and each Lender as soon as available, but in any event
within 120 days after December 31, 1997, a copy of the balance sheet of each
Reporting Participant as of December 31, 1997 and the related statements of
income, retained earnings and changes in cash flow of such Reporting Participant
for the six-months ended December 31, 1997, setting forth in each case in
comparative form the figures for the corresponding period in the previous fiscal
year, certified without qualification or exception as to the scope of its
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audit by independent public accountants of national standing reasonably
acceptable to the Agent.
5. No Other Amendments or Waivers. Except as expressly amended or
waived hereby, the provisions of the Reimbursement Agreement are, and shall
remain, in full force and effect. The waiver contained herein shall not
constitute a waiver of any other provisions of the Reimbursement Agreement or
for any purpose except as expressly set forth herein.
6. Counterparts. This Seventh Amendment may be executed by one or more
of the parties hereto in any number of separate counterparts, all of which
counterparts, taken together, shall constitute one and the same instrument.
7. Effective Date. This Seventh Amendment shall become effective on the
date on which the Agent shall have received counterparts hereof executed by the
Borrower and by the Required Lenders.
IN WITNESS WHEREOF, the parties hereto have caused this Seventh
Amendment to be duly executed and delivered by their duly authorized officers as
of the day and year first above written.
COGENTRIX OF RICHMOND, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
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Title: Vice President
Assistant General Counsel
BANQUE PARIBAS, NEW YORK BRANCH
in its capacity as Agent, Issuing Bank,
and as a Lender
By: /s/ Xxxxx Xxx
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Title: VP
By: /s/ Xxxxxx Xxxxx
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Title: AVP
Consented to:
THE FUJI BANK, LIMITED, NEW YORK BRANCH
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
Title: Senior Vice President
THE YASUDA TRUST AND BANKING CO., LTD.
By: /s/ X X Xxxxxxxxxxxxxx
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Xxxx Xxxxxxxxxxxxxx
Title: Senior Vice President
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CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxxxxxx Xxxxxxxx
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Title: Authorized Signatory
THE SUMITOMO BANK, LTD. THE SUMITOMO BANK, LTD.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxx Xxxxx X. Xxxxxxx
Title: Vice President and Manager Title: Vice President
SOCIETE GENERALE
By: /s/ Xxxxx Xxxxx
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Title: Vice President and
Regional Operations Manager
THE NIPPON CREDIT BANK, LTD., NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxxxx
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Title: Assistant Vice President
CREDIT LYONNAIS, NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
COMPAGNIE FINANCIERE de CIC et de
L'UNION EUROPEENNE
By: /s/ Xxxxxxxx Carbillet By: /s/ Xxxxx Staffellbach
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Title: VP Title: AVP
THE SANWA BANK, LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Assistant Vice President
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Diedera Van Den Xxxx
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Xxxxx X. Xxxxxxx Diedera Van Den Xxxx
Title: Managing Director Title: Senior Associate
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