SEC FILE NO. 70-8179
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
CERTIFICATE PURSUANT TO
RULE 24
OF PARTIAL COMPLETION OF
TRANSACTIONS
ENERGY INITIATIVES, INC.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
)
In the Matter of )
)
ENERGY INITIATIVES, INC. ) Certificate Pursuant
) to Rule 24 of Partial
SEC File No. 70-8179 ) Completion of
) Transactions
(Public Utility Holding )
Company Act of 1935) )
)
)
TO THE MEMBERS OF THE SECURITIES AND EXCHANGE COMMISSION:
The undersigned, Energy Initiatives, Inc. ("EI"), hereby
certifies pursuant to Rule 24 of the Rules and Regulations under
the Public Utility Holding Company Act of 1935, that certain of the
transactions proposed in the Application, as amended, filed in SEC
File No. 70-8179, have been carried out in accordance with the
Commission's order dated September 7, 1993 and supplemental order
dated June 13, 1994 with respect thereto, as follows:
1. On July 1, 1994 ("Closing Date"), EI acquired an
additional 45 shares of Class D Voting Common Stock and 955 shares
of Class C Non-Voting Common Stock (collectively, the "Shares") of
a Delaware corporation engaged in the business of developing,
owning and operating non-utility generating and other independent
power generation projects ("Cogen Corp."), pursuant to the terms of
a Stock Purchase Agreement dated as of September 7, 1993. EI paid
to Cogen Corp. an aggregate of $2,500,000 for the Shares, or $2,500
per share.
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2. In addition, on July 1, 1994 EI delivered to Cogen
Corp. a letter of credit ("L/C") issued by United Jersey Bank
("UJB") in the face amount of $2 million and with an expiration
date of July 1, 1995 to secure in part EI's obligation under the
Stock Purchase Agreement to purchase an additional 1,400 shares of
Cogen Corp. stock at $2,500 per share from time to time through
July 1, 1996. EI has agreed to pay UJB a letter of credit fee of
.50% per annum of the face amount of the L/C. In connection with
the L/C, EI and GPU entered into a reimbursement agreement with UJB
which, among other things, obligates EI and GPU to repay amounts
drawn under the L/C together with interest thereon at UJB's prime
rate as then in effect. As a result of the furnishing of the L/C
by EI, the escrow account established on September 7, 1993 by EI
and Cogen Corp. with UJB was terminated.
3. EI's ownership of Class D Voting Common Stock does
not exceed 4.9% of the total outstanding voting power of Cogen
Corp.'s capital stock.
4. The following exhibits are filed in Item 6:
A-7 Letter of Credit and Reimbursement Agreement.
A-8 Amendment to Restated Certificate of
Incorporation of Cogen Corp.
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SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935, THE UNDERSIGNED COMPANY HAS DULY CAUSED THIS
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED THEREUNTO
DULY AUTHORIZED.
ENERGY INITIATIVES, INC.
By:___________________________
B. L. Levy, President
Dated: July 11, 1994
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EXHIBITS TO BE FILED BY EDGAR
Exhibits:
A-7 - Letter of Credit and Reimbursement Agreement.
A-8 - Amendment to Restated Certificate of
Incorporation of Cogen Corp.
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Exhibit A-7
[United Jersey Bank]
June 28, 1994
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER 20941539
Beneficiary: Polsky Energy Corp.
650 Dundee Road
Northbrook, IL 60062
Applicant: Energy Initiatives, Inc.
One Upper Pond Road
Parsippany, New Jersey 07054
We hereby establish our Irrevocable Letter of Credit Number
20941539 in your favor in an aggregate amount of Two Million U.S.
Dollars ($2,000,000.00) effective immediately and expiring July 1,
1995. Funds under this Letter of Credit will be made available to
you against receipt by us of your draft at sight accompanied by
this Letter of Credit and a duly completed and executed drawing
certificate in the form of Annex A hereto (a "Drawing Certifi-
cate").
We engage with you that any draft drawn under and in compliance
with the terms of this Letter of Credit will be duly honored by us
as specified if presented to us at the above address on or prior to
July 1, 1995, 5 P.M. eastern time.
Each draft under this Letter of Credit must be accompanied by this
Letter of Credit and a duly completed and executed drawing
certificate.
This Letter of Credit sets forth in full our undertaking and our
agreement with you.
This Letter of Credit is subject to the Uniform Customs and
Practices for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, or any successor thereto
(the "Uniform Customs") and shall, as to matters not governed by
the Uniform Customs, be governed by and construed under the Laws of
the State of New Jersey.
Very Truly Yours,
UNITED JERSEY BANK
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
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[United Jersey Bank]
DRAWING CERTIFICATE
(DATE OF DRAWING)
United Jersey Bank
25 E. Salem Street
Hackensack, NJ 07601
RE: Irrevocable Letter of Credit Number 20941539
(The "Letter of Credit")
The undersigned, an authorized officer of Polsky Energy Corpora-
tion, hereby certifies to United Jersey Bank (the "Bank") as
follows:
5. Polsky Energy Corporation is the Beneficiary (the "Beneficia-
ry") of Irrevocable Letter of Credit No. 20941539 and the person
executing this certificate on behalf of the Beneficiary is duly
authorized to do so.
6. (Insert one of the following)
(Version 1) An EII subsequent closing date has occurred. Energy
Initiatives, Inc. ("EII") has failed to pay the purchase price for
the EII subscription shares which EII is required to purchase on
such EII subsequent closing date pursuant to the Stock Purchase
Agreement dated as of September 7, 1993, among the beneficiary,
EII, Allstate Insurance Company and Allstate Life Insurance Company
(as amended from time to time, the "Stock Purchase Agreement"), and
all the conditions to EII's obligation to purchase such shares have
been satisfied.
(Version 2) The Letter of Credit will expire within thirty days of
the date hereof, such expiration date is before July 1, 1996, the
beneficiary has not received a substitute Letter of Credit as
required by Section 2.01(c)(ii) of the Stock Purchase Agreement,
with an expiration date which is 365 days from the expiration date
of the Letter of Credit or July 1, 1996, whichever shall first
occur, and the beneficiary has provided EII with written notice of
its intention to draw upon the Letter of Credit at least four
business days before the date hereof.
7. The beneficiary is making a drawing under the Letter of Credit
in the amount of Two Million U.S. Dollars ($2,000,000.00), which
amount is the amount currently due and owning under the circum-
stances described in paragraph 2 above.
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In witness whereof, the beneficiary has executed and delivered this
Drawing Certificate as of the ______ Day of ______________, 19__.
Polsky Energy Corporation
By:____________________________
Name:
Title:
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APPLICATION AND
SECURITY AGREEMENT FOR
STANDBY LETTER OF CREDIT
United Jersey Bank
International Department
25 East Salem Street
Hackensack, New Jersey 07602
Gentlemen:
In consideration of your issuing, at our request and on our
instructions, your Standby Letter of Credit, we jointly and
severally, intending to be legally bound hereby, unconditionally
agree as follows:
8. LIMITATION OF BANK'S LIABILITY:
(a) WE UNDERSTAND AND AGREE THAT THE STANDBY LETTER OF CREDIT
("CREDIT") IS AN ARRANGEMENT BETWEEN YOU AND US INDEPENDENT OF ANY
UNDERLYING TRANSACTIONS BETWEEN US AND ANY BENEFICIARY DESIGNATED
IN THE CREDIT, OR ITS TRANSFEREES. WE FURTHER AGREE THAT YOU MUST
HONOR A DRAFT OR DEMAND FOR PAYMENT WHICH COMPLIES WITH THE TERMS
OF THE CREDIT REGARDLESS OF WHETHER THE DOCUMENTS, OR PERFORMANCE
WHICH ARE THE SUBJECT OF THE UNDERLYING CONTRACT BETWEEN US AND THE
BENEFICIARY CONFORM TO THE SAID UNDERLYING CONTRACT. WE FURTHER
AGREE THAT YOU HAVE NO OBLIGATION OR RESPONSIBILITY TO MONITOR ANY
SUCH UNDERLYING CONTRACT BETWEEN US AND THE BENEFICIARY OF THE
CREDIT AND THAT YOUR SOLE OBLIGATION WITH REGARD TO A DRAFT OR
DEMAND FOR PAYMENT IS TO DETERMINE WHETHER THE DOCUMENTS PRESENTED
APPEAR ON THEIR FACE TO BE IN ACCORDANCE WITH THE TERMS AND
CONDITIONS OF THE CREDIT. WE FURTHER AGREE THAT YOU ARE UNDER NO
OBLIGATION TO ASCERTAIN, AND ASSUME NO LIABILITY OR RESPONSIBILITY
FOR THE GENUINENESS, ACCURACY, TRUTHFULNESS, FALSIFICATION OR LEGAL
EFFECT OF ANY DOCUMENT, AND WE FURTHER AGREE NOT TO ASSERT ANY
CLAIMS AGAINST YOU FOR PAYING AGAINST DOCUMENTS OR PAYING DRAFTS
UPON PRESENTATION WHICH ON THEIR FACE CONFORM TO THE TERMS AND
CONDITIONS OF THE CREDIT.
(b) WE UNDERSTAND FURTHER THAT IN THE EVENT THE CREDIT IS
CONFIRMED BY A CONFIRMING BANK, THE CONFIRMING BANK WILL HAVE THE
SAME RIGHTS AS YOU WITH REGARD TO THE CREDIT.
(c) WE SHALL BE SOLELY RESPONSIBLE FOR THE FORM AND SUB-
STANCE, INCLUDING THE WORDING, OF ANY REQUIREMENT INCLUDED IN A
CREDIT AS A BASIS ON WHICH YOU ARE OBLIGATED TO PAY ANY DRAFT OR
DEMAND FOR PAYMENT, REGARDLESS OF WHETHER WE HAVE CONSULTED WITH
YOU OR NOT CONCERNING SAME.
9. DEFINITIONS AND TERMS:
As used herein:
(a) "You" means United Jersey Bank.
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(b) "We" or "us" means the party or parties signing this
Agreement.
(c) "Agreement" shall mean this Application and Security
Agreement.
(d) An "instrument" means any draft, receipt, acceptance or
cable or written demand for payment.
(e) "Property" means goods and merchandise and any and all
documents relative thereto, securities, funds, choses in
action, and any and all other forms of property, whether
real or personal and any right or interest therein.
(f) "Uniform Customs and Practice" means the most recently
published revision of the Uniform Customs and Practice
for Documentary Credits published by the International
Chamber of Commerce, which shall be binding on the Credit
issued pursuant to this Agreement, except as otherwise
specifically provided in this Agreement or the Credit,
and in the absence of proof to the contrary, shall serve
as evidence of general banking usage.
(g) "Security Agreement" means an agreement which creates or
provides for a security interest.
(h) "Financing Statement" means a Financing Statement in the
form specified by applicable law.
(i) The "Application" means an application for the Credit in
such form as you may prescribe from time to time, as such
application may be amended or modified from time to time
by a written or oral agreement or consent duly authorized
and executed (if written) by us and accepted by you.
(j) "Credit" shall mean the Letter of Credit issued by you at
our request pursuant to this Agreement.
(k) The personal pronoun shall include each person, male or
female, firm or corporation, who or which is a party
signatory hereto.
10. PAYMENT:
(a) As to drafts or demands for payment drawn under, or
purporting to be drawn under, the Credit, which are payable in
United States currency, we agree to reimburse you at your principal
office at 25 East Salem Street, Hackensack, New Jersey, on demand,
in collected funds, in lawful money of the United States of
America, the amount paid on such draft or demand for payment or, if
so demanded, to pay you at your said office in advance in such
money the amount required to pay such draft or demand for payment;
and
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(b) As to drafts or demands for payment drawn under, or
purporting to be drawn under, any Credit, which are payable in
other than United States currency we agree to reimburse you at your
said office, on demand, the equivalent of the amount paid in
collected funds, in lawful money of the United States of America at
your then current selling rate of exchange for prime bankers' cable
transfers on the place of payment or where reimbursement is
required, in the currency in which such draft is drawn; and
11. COMMISSIONS, INTEREST AND OTHER CHARGES:
(a) We hereby expressly agree to pay to you upon demand any
all expenses, including reasonable counsel fees, incurred or paid
by you in protecting or enforcing your rights under this Agreement,
or in connection with the Credit issued pursuant hereto, or the
property, documents, drafts or demands for payment coming or which
should come into your possession under or pursuant to this
Agreement or the Credit, or arising or caused in any manner
whatsoever in connection therewith. We agree to pay you, on
demand, the commission at such rate as is established by you, and
any and all charges, costs and expenses (including counsel fees and
expenses) paid or incurred by you in connection with the prepara-
tion of the Credit and the enforcement of this Agreement. We also
agree to pay you, on demand, any other fees established by you from
time to time including, but not limited to, sight draft or demand
for payment fees, consulting fees and fees for issuance, amendment,
transfer, payment or cancellation of the Credit. We also agree to
pay you interest on any amount you have paid on any draft or other
instrument or demand under or purporting to be drawn under the
Credit from the date you have paid such amount until the date we
reimburse you at an interest rate equal to your prime rate as in
effect from time to time.
(b) In the event that any change in applicable law, regula-
tion, condition, directive or interpretation thereof (including any
request, guideline or policy, whether or not having the force of
law and including, without limitation, any regulation promulgated
by the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect) by any authority charged
with the administration or interpretation thereof occurs which:
(i) subjects you to any tax with respect to any amount
paid or to be paid to you as the issuer of the Credit (other than
any tax measured by or based upon your overall net income) or your
commitment under the Credit; or
(ii) changes the basis of taxation of payments to you on
such amount or such commitment or other amounts payable hereunder
(other than tax measured by or based upon your overall net income);
or
(iii) imposes, modifies or deems applicable any reserve or
deposit requirements against the assets held by, deposits with or
for the account of, or loans or commitments by you in connection
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with payment by you under the Credit or your commitment under the
Credit; or
(iv) imposes, modifies or deems applicable any insurance
premiums payable by you in connection with the Credit; or
(v) imposes upon you any other condition with respect to
such amounts paid or payable to or by you under such commitment,
this Agreement or the Credit; and the result of any of the
foregoing is to increase the cost to you of making any payment or
maintaining your commitment under the Credit, or to reduce the
amount of any payment (whether of principal, interest or otherwise)
to be received by you or to require you to make any payment on or
calculated by reference to the gross amount of any sum received by
you, in each case by an amount which you in your sole judgment deem
material, then and in any such case you shall deliver to us written
notice of the happening of such event and the amount of such
increased cost or payment or lesser amount received by you. We
shall pay to you, within thirty (30) days after delivery of such
notice, such amount or amounts as will compensate you for such
increased cost or payment or lesser amount received by you to the
extend incurred by you within 60 days of your notice to us or as to
which you shall have notified us within 60 days after becoming
aware that you will incur such costs. The protection of this
Paragraph 4 shall be available to you regardless of any possible
contention of invalidity or inapplicability of any such law,
regulation, condition, directive or interpretation.
12. AUTHORIZATION FOR PAYMENT:
(a) We hereby authorize you and your correspondents to pay
drafts or demands for payment drawn under the Credit, on presenta-
tion of documents as required by the Credit, or substitutes
therefor satisfactory to you, and without regard to the order in
which they may be drawn or presented, and without regard to the
amount of any draft or demand for payment (the total of all drafts
and demands for payment not to exceed the amount of the particular
credit unless so authorized by us).
(b) We authorize you and your correspondents to receive and
accept a statement, certification, or the like, upon which you are
entitled to rely, in whole or in part in honoring drafts or demands
for payment presented pursuant to the Credit.
(c) You may honor, as complying with the terms of this
Agreement and the Credit, any instruments or other documents
otherwise in order signed or issued by an administrator, executor,
trustee in bankruptcy, debtor in possession, assignee for benefit
of creditors, liquidators, receiver or other legal representative
of the party authorized under the Credit to draw or issue such
instruments or other documents.
(d) You shall not in any way be liable for any failure by you
or anyone else to pay any draft or demand for payment under the
Credit resulting from any censorship, law, control or restriction
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rightfully or wrongfully exercised by any de facto or de jure
domestic or foreign government or agency or from any other cause
beyond your control or the control of your correspondents or for
any loss or damage to us or any of us or anyone else resulting from
any such failure to pay, all such risks being expressly assumed by
us.
13. MODIFICATION:
In the event of any change or modification, with our consent,
relative to the Credit or any instruments or documents called for
thereunder, including waiver of noncompliance of any such instru-
ments or documents with the terms of the Credit, or refinancing of
the Credit, this Agreement shall be binding upon us with regard to
the Credit as so changed or modified, and to any action taken by
you or any of your correspondents relative thereto.
14. BANK RELIEVED FROM RESPONSIBILITY:
It is also agreed, but not by way of limitation, that in any
event:
(a) no user of the Credit shall be deemed your agent;
(b) neither you nor your correspondents shall be responsible
for the validity or sufficiency of any endorsements; failure of any
instrument to bear any reference or adequate reference to the
Credit or of documents to accompany any instrument at negotiation;
failure of any person to note the amount of any instrument on the
reverse of the Credit or to surrender or to take up the Credit; to
forward documents in the manner required by the Credit; for the use
which may be made of the Credit or for any acts or omissions of the
users of the Credit; the validity, sufficiency, or genuineness of
documents, even if such documents should in fact prove to be in any
and all respects invalid, fraudulent, or forged; particular
conditions stipulated in the documents or superimposed thereon;
errors, omissions, interruptions, delays in transmission, or
delivery of any messages by mail, cable, telegraph, wireless,
telecopier or otherwise, whether or not they may be in a foreign
language or cipher; any act, error, neglect, default, omission,
insolvency or failure in the business of any correspondent; any
refusal by you or any correspondent to pay or honor drafts or
demands for payment drawn under the Credit because of any applica-
ble law, decree or edict, legal or illegal, of any governmental
agency now or hereafter in force or for any matter beyond your
control;
(c) the occurrence of any one or more of the contingencies
referred to in the Uniform Customs and Practice or in the preceding
clauses of this paragraph shall not affect, impair or prevent the
vesting of any of your rights or powers hereunder or our obligation
to make reimbursements;
(d) we will promptly examine:
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(i) the copy of the Credit and of any amendments thereof
sent to us by you and
(ii) all instruments and documents delivered to you from
time to time and, in the event of any claim of noncompliance with
our instructions or other irregularity, will immediately notify you
thereof in writing, we being conclusively deemed to have waived any
such claim against you and your correspondents unless such notice
is given as aforesaid. Any action, inaction or omission taken or
suffered by you or any of your correspondents, under or in
connection with the Credit or the relative instruments, documents
or property including the transfer of same, if in good faith and in
conformity with such laws, regulations or customs of any jurisdic-
tion as you or any of your correspondents may deem to be applica-
ble, shall be binding upon us and shall not place you or any of
your correspondents under any liability to us. The foregoing
provisions of this paragraph 7 shall in no event relieve you from
your negligence or wilful misconduct.
15. NON-WAIVER; CONTINUING OBLIGATIONS:
(a) Your rights and liens hereunder shall continue unim-
paired, and we shall be and remain obligated in accordance with the
terms and provisions hereof, notwithstanding the release or
substitution of any property which may be held as security
hereunder at any time, or of any right or interest therein. No
delay, extension of time, renewal, compromise or other indulgence
or accommodation which may occur or be granted by you shall impair
your rights or powers hereunder. We further agree that your
failure to exercise or enforce any rights hereunder or under any
trust receipt, and to require strict compliance with the terms
hereof or thereof in any one or more instances, shall not be deemed
a waiver or relinquishment thereof; and all the provisions herein
or therein contained for your benefit and protection shall be
available to and enforceable by your correspondents as principal or
otherwise; that you shall not be deemed to have waived any of your
rights hereunder or thereunder unless you or your authorized agent
shall have signed such waiver in writing, and no such waiver,
unless expressly stated therein shall be effective as to any
transaction which occurs after the date of such waiver or as to the
continuance of a breach after such waiver. The receipt by you or
any of your correspondents at any time of other collateral, of
whatsoever nature, including cash, shall not be deemed a waiver of
any of your rights or powers relating to any collateral which you
may hold at the time of such receipt.
(b) Our obligations under this Agreement are absolute,
unconditional and irrevocable and shall be performed in accordance
with the terms hereof notwithstanding any lack of validity or
enforceability of this Agreement or the Credit or the existence of
any claim, set-off, defense or other rights which we may have at
any time against you, the beneficiary, any participant or any other
person or entity, whether in connection with this Agreement, the
Credit or any unrelated transactions. The obligations hereof shall
bind our heirs, executors, administrators, successors and assigns
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and all rights, benefits and privileges hereby conferred on you
shall be and hereby are extended to and conferred upon and may be
enforced by your successors and assigns. If we are a partnership,
our obligations pursuant hereto shall continue in force, and apply,
notwithstanding any change in the membership of such partnership,
whether arising from the death or retirement of one or more
partners, the accession of one or more new partners or dissolution
of the partnership, and each partner of any such new or former
partnership shall remain, or become, as the case may be, jointly
and severally liable with such partnerships for all obligations
arising hereunder or under the Credit.
16. LOST OR STOLEN CREDIT:
In case the Credit is either lost or stolen, you or your
correspondents, are hereby authorized to take such precautions, if
any, as you or they may deem advisable for the prevention of fraud.
17. INDEMNIFICATION:
We will indemnify and hold you and all of your correspondents
harmless against any and all claims, loss, damage, liability or
expense, including reasonable counsel fees, and fees for filing or
recording financing, continuation or termination statements,
however arising from or in connection with this Agreement or the
Credit, which you or they may incur or suffer in connection with,
this Agreement or the Credit, including, but not limited to:
(a) any such claim, loss, liability or damage arising out of
any transfer, sale, delivery, surrender or endorsement of any bill
of lading, warehouse receipt of other document at any time held by
you, or held for its account by any of your correspondents, in
connection with the Credit;
(b) any and all action taken by you or your correspondents in
good faith in furtherance of any request by us or any of us;
(c) any errors, omissions, interruptions or delays in
transmission or receipt, of any and all messages by mail, cable,
telegraph, wireless, telecopier or other means of transmission,
whether or not the same be in cipher;
(d) any and all obligations imposed upon you or your
correspondents with respect to the Credit or the relative drafts,
documents or property.
(e) any payment made by you or any other drawee of any draft
dated on or before the expiration of any time limit expressed in
any credit in accordance with the terms of the credit regardless of
when drawn and whether negotiated;
(f) any bond or undertaking into which you or your correspon-
dents may enter in the course of the transportation, importation or
exportation of any property;
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(g) any payment or cashing by you or your correspondents,
under the usual precautions, of any draft or demand for payment
before notice of loss or theft of any credit has been received by
you or such correspondent;
(h) revocation or termination of this Agreement or any Credit
by operation of law;
(i) any other matter arising out of this Agreement, the
Credit issued pursuant hereto, any draft or demand for payment
relative to the Credit, or any thing having to do therewith, except
matters solely caused by your negligence or wrongful act or
omission. The indemnities contained in this Agreement shall
survive the expiration or termination of this Agreement and the
Credit.
18. DURATION OF AGREEMENT:
This Agreement shall remain in full force and effect until
such time as the same shall be terminated in writing by either you
or us; provided, however, that if upon the date of such termination
we shall have a debit balance of a demand loan with you outstanding
and unpaid hereunder, or if there shall be any amount then unpaid
on any promissory note or other evidence of indebtedness or
obligation of us to you, this Agreement shall as to such unpaid
obligation remain in full force and effect until the same shall
have been paid in full.
19. INTERPRETATION; ARBITRATION:
(a) This Agreement has been made and delivered at your
principal office at 25 East Salem Street, Hackensack, New Jersey
and shall be governed by the laws of the State of New Jersey. This
Agreement, the Credit and all rights, obligations and liabilities
arising hereunder or thereunder shall be subject to and interpreted
in accordance with the Uniform Customs and Practice, except as
otherwise agreed to herein or therein or except as otherwise
preempted by the United States Constitution or any Act of Congress.
(b) Any controversy arising out of this Agreement, any
Application, the Credit or use thereof or any actions or omissions
pursuant therewith shall be determined, if you so require, by a
panel of arbitrators appointed by and acting pursuant to the Rules
then in force of the American Arbitration Association. Such
arbitration shall be held in Hackensack, New Jersey and all costs
and expenses paid or incurred by you in connection with such
arbitration, including reasonable counsel fees, shall be reimbursed
to you by us on demand. If you shall not require arbitration, we
hereby waive our right to trial by jury as to all issues and
consent to the in personam jurisdiction of the Superior Court of
the State of New Jersey or any other court of general jurisdiction
of the State of New Jersey in any action arising out of or in
connection with this Agreement or any Credit and further consent
that any process in any such action in any such court may be served
upon us or our successors in interest outside of the State of New
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Jersey, by personal service, certified or registered mail or any
other manner of service, of process chosen by you to us at the
address set forth below (or such other address as we may specify
from time to time in writing to you).
20. MISCELLANEOUS:
(a) If we are a banking institution, we hereby appoint you as
our agent to issue the Credit in accordance with, and subject to,
this Agreement and the Application.
(b) If, at the request of any of us, any Credit is advised to
the beneficiary by you, we agree to be bound by the terms employed
by you in your advice, as well as by the terms of transmittal.
(c) If this Agreement is signed by one individual, the terms
"we," "our" and "us" shall be read as "I," "my" or "me" as the case
may be. If this Agreement is signed by more than one applicant,
each shall be jointly and severally liable for the obligations,
responsibilities and liabilities arising hereunder.
(d) We hereby certify and agree that no transactions
undertaken in connection with this Agreement or the Credit are in
violation of any state laws, foreign laws or the laws of the United
States or the regulations of any governmental agency of any foreign
country, state or the United States.
(e) Wherever possible, each provision of this Agreement and
the Credit shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Agreement or the Credit shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement or the
Credit.
(f) The paragraph headings set forth in this Agreement are
for convenience and reference only and are not intended to modify,
limit, describe or affect in any way the contents, scope or intent
of this Agreement or the Credit issued pursuant hereto.
21. AUTHORIZATION AND AGREEMENT OF ACCOUNT PARTY:
We hereby join in the request of the applicant to issue the
Credit described on the front side of this Application with our
name appearing as Account Party. In consideration of the Bank
issuing the Credit in this form it is agreed 1) that the applicant
has the exclusive right to issue all instructions relating to the
Credit including, without limitation, instructions as to disposi-
tion of documents and any unutilized funds with waiver of discrep-
ancies and to agree with you upon any amendments, modifications,
extensions, renewals or increases of the Credit or the further
financing or refinancing of any transaction effective thereunder,
or any other matters irrespective of whether the same may now or
hereafter affect our rights or those of our successors or assigns;
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2) that if the applicant fails to pay when due any amount owing to
you in respect of the Credit or payment or acceptances thereunder,
we will forthwith pay the same to you on demand. The applicant is
authorized to assign or transfer to you all or any part of any
security held by the applicant for our obligations arising in
connection with the security transferred or assigned to you as was
vested in the applicant prior to such transfer or assignment;
3) that we will be bound by the Terms and conditions of the
Application as if, and to the same extent as if we were the named
applicant therein and had executed said Application.
ENERGY INITIATIVES, INC.
By:____________________________
Bruce Levy, President
The above signature of an officer, partner, or agent of the account
party indicated conforms to that on file with us and such officer,
partner or agent is fully authorized to sign for such account
party.
_______________________________
[Bank]
By:____________________________
Authorized Signature(s)
10
<PAGE>
Exhibit A-8
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
POLSKY ENERGY CORPORATION
POLSKY ENERGY CORPORATION, a Delaware corporation, hereby
certifies as follows:
FIRST. The Board of Directors of said corporation duly
adopted a resolution setting forth and declaring advisable the
amendment of Article Fourth of the restated certificate of
incorporation of said corporation to adjust the voting power of the
Class D Voting Common, by adding to Article Fourth a new paragraph
(G) as follows:
(G) Further Adjustment of Class D Voting Rights.
Notwithstanding anything in this Article FOURTH to the
contrary, the aggregate voting power of all outstanding
shares of Class D Voting Common shall not exceed 4.9% of
the aggregate voting power of all classes and series of
Stock, which aggregate voting power shall be allocated
ratably among the outstanding shares of Class D Voting
Common, provided, however, that the limitation imposed by
this paragraph (G) shall cease to apply if and to the
extent that, without such limitation, the Corporation
would not be an "affiliate" of a registered holding
company under the Public Utility Holding Company Act of
1935.
SECOND. In lieu of a vote of stockholders, written
consent to the foregoing amendment has been given by the holders of
all of the outstanding stock entitled to vote thereon and all of
the outstanding stock of each class entitled to vote thereon as a
class in accordance with the provisions of Section 228 of the
<PAGE>
General Corporation Law of the State of Delaware; and such
amendment has been duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, POLSKY ENERGY CORPORATION has caused
this certificate to be signed by Michael Polsky, its President, and
attested by Bianca Virgili, its Secretary, on the 11th day of May,
1994.
POLSKY ENERGY CORPORATION
_________________________
Michael Polsky
Attest:
By:______________________________
Bianca Virgili
<PAGE>
