AMENDMENT NO. 5 TO CREDIT AGREEMENT
AMENDMENT NO. 5 dated as of August 1, 2000 (this "Amendment") to that
certain Credit Agreement dated as of May 1, 1994 (as amended by Amendment No. 1,
dated as of August 11, 1994, Amendment No. 2, dated as of January 30, 1995,
Amendment No. 3 dated as of July 1, 1997, Amendment No. 4, dated as of November
16, 1998, and as further amended, restated, supplemented or otherwise modified,
the "Credit Agreement") among SELKIRK COGEN PARTNERS, L.P., a Delaware limited
partnership (the "Borrower"), the lenders party thereto (the "Lenders"),
DRESDNER BANK AG, NEW YORK BRANCH, in its capacity as LC Issuer thereunder
(together with its successors in such capacity, the "LC Issuer"), and DRESDNER
BANK AG, NEW YORK BRANCH, as Agent (together with its successors in such
capacity, the "Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the parties hereto have agreed to amend the Credit Agreement
as provided herein, subject to the terms and conditions hereof.
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Definitions. Capitalized terms used in this Amendment
without being defined herein shall have the meanings ascribed to such terms in
the Credit Agreement.
Section 2. Amendment of Credit Agreement. The Credit Agreement is
hereby amended as follows:
(a) Section 2.1(a) of the Credit Agreement is hereby amended by
deleting the amount of "$10,389,528" from the final sentence thereof and
inserting the amount of "$7,542,428" in replacement therefor.
(b) Section 2.2(a) of the Credit Agreement is hereby amended by
deleting such section in its entirety and inserting the following in replacement
therefor:
" (a) Subject to and upon the terms and conditions herein set
forth, Letters of Credit may be issued or become subject to this Agreement in an
aggre-
gate stated amount not to exceed $2,542,428 (the "Letter of Credit
Commitment"). The Letter of Credit Commitment shall be reduced by the amount of
any Drawing under any Letter of Credit. Upon the cancellation, termination or
expiration of any Letter of Credit, the Letter of Credit Commitment shall be
reduced by the amount available to be drawn under such Letter of Credit
immediately prior to such cancellation, termination or expiration. The LC Issuer
shall, subject to the terms and conditions hereof, issue Letters of Credit in
such forms as are acceptable to the LC Issuer, in favor of TransCanada. No
Letter of Credit may be issued if, after giving effect to such issuance, (i) the
aggregate stated amount of Letters of Credit outstanding would exceed the Letter
of Credit Commitment or (ii) the sum of the LC Outstandings plus the aggregate
principal amount of all outstanding Loans would exceed $7,542,428. The Letter of
Credit Commitment shall expire on August 2, 2000 and no Letters of Credit shall
be issued hereunder after such date."
(c) Section 2.2(d) of the Credit Agreement is hereby amended by
deleting the amount of "$10,389,528" from the final sentence thereof and
inserting the amount of "$7,542,428" in replacement therefor.
(d) Section 2.4(c) of the Credit Agreement is hereby amended by
deleting the amount of "$5,389,528" from the first sentence thereof and
inserting the amount of "$2,542,428" in replacement therefor.
(e) The definition of "Final Maturity Date" contained in Annex 1
of the Credit Agreement is hereby amended by deleting such definition in its
entirety and inserting the following in replacement therefor:
""Final Maturity Date" shall mean August 8, 2003."
(f) Schedule 1 to the Credit Agreement is hereby amended by
deleting such Schedule in its entirety and inserting Schedule 1 attached hereto
in replacement therefor.
Section 3. Status of Loan Documents. This Amendment is limited
solely for the purposes and to the extent expressly set forth herein and nothing
herein expressed or implied shall constitute an amendment or
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waiver of any other term, provision or condition of the Credit Agreement or any
other Loan Document. Except as expressly amended hereby, the terms and
conditions of the Credit Agreement and the other Loan Documents shall continue
in full force and effect.
Section 4. Representations and Warranties. The Borrower hereby
represents and warrants to the Agent, the Lenders and the LC Issuer that all
representations and warranties of the Borrower contained in the Credit Agreement
are, as of the date hereof, true and correct.
Section 5. Fees and Expenses. The Borrower agrees to pay,
promptly on demand therefor, all fees and expenses of the Agent and the LC
Issuer incurred in connection with this Amendment and the issuance or extension
of any of the Letters of Credit including, without limitation, fees and expenses
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Agent and the LC
Issuer.
Section 6. Counterparts. This Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one
Amendment, and any of the parties hereto may execute this Amendment by signing
such a counterpart.
Section 7. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW EXCEPT
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
SELKIRK COGEN PARTNERS, L.P.
By: JMC SELKIRK, INC.,
its General Partner
By: /s/XXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
DRESDNER BANK AG, NEW YORK
BRANCH, as Lender, LC Issuer
and Agent
By: /s/ XXXXX X.X. XXXXXX
---------------------------------
Name: Xxxxx X.X. Xxxxxx
Title: Vice President
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Treasurer
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SCHEDULE 1
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WORKING CAPITAL LETTER OF CREDIT
LENDER LOAN COMMITMENT LOAN COMMITMENT
------ --------------- ---------------
DRESDNER BANK AG, $5,000,000.00 $2,542,428
NEW YORK BRANCH
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