Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 13 TO THE THIRD
AMENDED AND RESTATED
CREDIT AND REIMBURSEMENT AGREEMENT
Dated as of July 29, 2008
AMENDMENT NO. 13 TO THE THIRD
AMENDED AND RESTATED CREDIT AND REIMBURSEMENT AGREEMENT (this
“ Amendment ”) among The AES Corporation, a
Delaware corporation (the “ Borrower ”), the
Subsidiary Guarantors, the Bank Parties listed on the signature
pages hereto, CITICORP USA, INC., as administrative agent (the
“ Agent ”) and CITIBANK, N.A., as Collateral
Agent, for the Bank Parties (the “ Collateral Agent
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PRELIMINARY STATEMENTS
(1)
WHEREAS, the Borrower is party to a Third Amended and Restated
Credit and Reimbursement Agreement dated as of March 17, 2004
(as amended, amended and restated, supplemented or otherwise
modified up to the date hereof, the “ Existing Bank Credit
Agreement ”; capitalized terms used herein but not
defined shall be used herein as defined in the Credit Agreement)
among the Subsidiary Guarantors, the Bank Parties, CITIGROUP GLOBAL
MARKETS, INC., as Lead Arranger and Book Runner, BANC OF AMERICA
SECURITIES LLC, as Lead Arranger and Book Runner and as
Co-Syndication Agent (for the Initial Term Loan Facility), DEUTSCHE
BANK SECURITIES INC., as Lead Arranger and Book Runner (for the
Initial Term Loan Facility), UNION BANK OF CALIFORNIA, N.A., as
Co-Syndication Agent (for the Initial Term Loan Facility) and as
Lead Arranger and Book Runner and as Syndication Agent (for the
Revolving Credit Facility), LEHMAN COMMERCIAL PAPER INC., as
Co-Documentation Agent (for the Initial Term Loan Facility), UBS
SECURITIES LLC, as Co-Documentation Agent (for the Initial Term
Loan Facility), SOCIÉTÉ GÉNÉRALE, as
Co-Documentation Agent (for the Revolving Credit Facility), CREDIT
LYONNAISE NEW YORK BRANCH, as Co-Documentation Agent (for the
Revolving Credit Facility), the Agent and the Collateral Agent;
and
(2)
WHEREAS, the Borrower and the Required Banks have agreed, subject
to the terms and conditions hereinafter set forth, to amend and
restate the Existing Bank Credit Agreement as set forth below (as
amended and restated the “ Credit Agreement
”).
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
sufficiency and receipt of all of which is hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1.
Amendment . As of the Effective Date, the Credit
Agreement is hereby amended as follows:
The Existing Bank
Credit Agreement is hereby amended and restated as set forth in
Annex A hereto.
SECTION 2.
Conditions to Effectiveness . This Amendment shall
become effective when, and only when, and as of the date (the
“ Effective
Date ”) on which
(a) the Agent shall have received counterparts of this
Amendment executed by the Borrower and each of the Subsidiary
Guarantors and the Required Banks or, as to any of the Required
Banks, advice satisfactory to the Agent that such Bank Party has
executed this Amendment, (b) the Agent shall have received
payment of all accrued fees and expenses of the Agent (including
the reasonable and accrued fees of counsel to the Agent invoiced on
or prior to the date hereof), (c) the Agent shall have
received a favorable opinion of the Counsel of the Borrower
regarding the due authorization, execution and delivery of this
Amendment and other matters reasonably requested by the Agent and
(d) the Agent shall have received a certificate signed by a
duly authorized officer of the Borrower dated the Effective Date,
to the effect that, after giving effect to this Amendment:
(i) the representations and warranties contained in each of
the Financing Documents are true and correct in all material
respects on and as of the Effective Date as though made on and as
of such date (unless stated to relate solely to an earlier date, in
which case such representations and warranties are true and correct
in all material respects as of such earlier date); and (ii) no
Default has occurred and is continuing.
This Amendment is subject to the
provisions of Section 10.05 of the Credit
Agreement.
SECTION 3.
Representations and Warranties . The Borrower
represents and warrants as follows:
(a)
The representations and warranties contained in each of the
Financing Documents, after giving effect to this Amendment, are
correct in all material respects on and as of the date of this
Amendment, as though made on and as of such date (unless stated to
relate solely to an earlier date, in which case such
representations and warranties are true and correct in all material
respects as of such earlier date).
(b)
After giving effect to this Amendment, no Default has occurred and
is continuing on the date hereof.
SECTION 4.
Reference to and Effect on the Financing Documents .
(a) On and after the Effective Date, each reference in the
Credit Agreement to “ this Agreement ”, “
hereunder ”, “ hereof ” or words of
like import referring to the Credit Agreement, and each reference
in the Notes and each of the other Financing Documents to “
the Agreement ”, “ thereunder ”,
“ thereof ”, or words of like import referring
to the Credit Agreement shall mean and be a reference to the Credit
Agreement, as modified hereby.
(b)
The Credit Agreement, the Notes and each of the other Financing
Documents, as specifically modified by this Amendment, are and
shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed. Without limiting the
generality of the foregoing, the Collateral Documents and all of
the Collateral described therein do and shall continue to secure
the payment of all Obligations of the Loan Parties under the
Financing Documents, in each case as modified by this
Amendment.
2
(c)
The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Banks, nor constitute an
amendment or waiver of any provision of the Credit Agreement or the
other Financing Documents.
SECTION 5.
Affirmation of Subsidiary Guarantors . Each Subsidiary
Guarantor hereby consents to the amendments to the Credit Agreement
effected hereby, and hereby confirms and agrees that,
notwithstanding the effectiveness of this Amendment, the
obligations of such Subsidiary Guarantor contained in
Article IX of the Credit Agreement or in any other Financing
Documents to which it is a party are, and shall remain, in full
force and effect and are hereby ratified and confirmed in all
respects, except that, on and after the effectiveness of this
Amendment, each reference in Article IX of the Credit
Agreement and in each of the other Financing Documents to “
the Agreement ”, “ thereunder ”,
“ thereof ” or words of like import shall mean
and be a reference to the Credit Agreement, as modified by this
Amendment. Without limiting the generality of the foregoing,
the Collateral Documents to which such Subsidiary Guarantor is a
party and all of the Collateral described therein do, and shall
continue to secure, payment of all of the Secured Obligations (in
each case, as defined therein).
SECTION 6.
GOVERNING LAW . THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK.
SECTION 7.
WAIVER OF JURY TRIAL . EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE
ACTIONS OF THE COLLATERAL TRUSTEES OR THE AGENT IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION 8.
Execution in Counterparts . This Amendment may be
executed by one or more of the parties to this Amendment on any
number of separate counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same
instrument.
SECTION 9.
Costs and Expenses . The Borrower hereby agrees to pay
all reasonable costs and expenses associated with the preparation,
execution, delivery, administration, and enforcement of this
Amendment, including, without limitation, the fees and expenses of
the Collateral Trustees’ and the Agent’s counsel and
other out-of-pocket expenses related hereto. Delivery of an
executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
3
IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be duly executed and delivered
by their respective proper and duly authorized officers as of the
day and year first above written.
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THE AES CORPORATION,
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as Borrower
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By:
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/s/ Willard C. Hoagland
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Title:
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Address:
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4300 Wilson Boulevard
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Arlington, VA 22203
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Fax:
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(703) 528-4510
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SUBSIDIARY GUARANTORS:
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AES HAWAII MANAGEMENT COMPANY, INC.,
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as Subsidiary Guarantor
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By:
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/s/ Willard C. Hoagland
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Title:
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Treasurer
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Address:
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4300 Wilson Blvd.
Arlington, VA 22203
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Fax:
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(703) 528-4510
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AES NEW YORK FUNDING, L.L.C.,
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as Subsidiary Guarantor
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By:
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/s/ Willard C. Hoagland
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Title:
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Treasurer
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Address:
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4300 Wilson Blvd.
Arlington, VA 22203
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Fax:
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(703) 528-4510
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AES OKLAHOMA HOLDINGS, L.L.C.,
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as Subsidiary Guarantor
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By:
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/s/ Willard C. Hoagland
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Title:
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Treasurer
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Address:
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4300 Wilson Blvd.
Arlington, VA 22203
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Fax:
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(703) 528-4510
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AES WARRIOR RUN FUNDING, L.L.C.,
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as Subsidiary Guarantor
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By:
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/s/ Willard C. Hoagland
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Title:
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Treasurer
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Address:
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4300 Wilson Blvd.
Arlington, VA 22203
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Fax:
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(703) 528-4510
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AGENTS:
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CITICORP USA, INC.,
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as Agent
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By:
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/s/ Nietsche Rodricks
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Title:
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Director
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Address:
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388 Greenwich Street, 21 st
Floor
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New York, NY 10013
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Fax:
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(212) 816-8098
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Attention:
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Nietzsche Rodricks
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Email:
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oploanswebadmin@citigroup.com
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CITIBANK N.A.,
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as Collateral Agent
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By:
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/s/ Nietsche Rodricks
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Title:
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Director
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Address:
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388 Greenwich Street, 21 st
Floor
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New York, NY 10013
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Fax:
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(212) 816-8098
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Attention:
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Nietzsche Rodricks
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ABN AMRO BANK N.V.
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as Lender
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By:
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/S/ Scott Donaldson
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Name:
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Scott Donaldson
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Title:
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Director
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By:
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/S/ Sanjay Remond
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Name:
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Sanjay Remond
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Title:
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Vice President
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Pinehurst Trading, Inc.
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as Lender
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By:
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/S/ Tara E. Kenny
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Name:
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Tara E. Kenny
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Title:
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Assistant Vice President
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Transamerica Life Insurance
Company
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as Lender
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By:
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/S/ John Bailey
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Name:
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John Bailey
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Title:
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Vice President
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By: AllianceBernstein L.P., as
Investment Advisor
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as Lender
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By:
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/s/
Michael E. Sohr
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Name:
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Michael E. Sohr
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Title:
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Senior Vice President
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Account :
Alliance Capital Funding LLC
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AMMC CLO IV, LIMITED
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By:
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American Money Management Corp.,
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as Collateral Manager
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as Lender
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By:
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/s/
Chester M. Eng
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Name:
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Chester M. Eng
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Title:
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Senior Vice President
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AMMC CLO VI, LIMITED
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By:
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American Money Management Corp.,
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as Collateral Manager
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as Lender
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By:
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/S/ Chester M. Eng
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Name:
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Chester M. Eng
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Title:
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Senior Vice President
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Australia and New Zealand Banking
Group Limited
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as Lender
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By:
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/s/
John W. Wade
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Name:
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John W. Wade
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Title:
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Deputy General Manager
Head of Operations and Infrastructure
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Bank of America, N.A.
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as Lender
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By:
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/s/
Jacob Dowden
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Name:
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Jacob Dowden
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Title:
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Vice President
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Ballantyne Funding LLC
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as Lender
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By:
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/s/
Michael Roof
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Name:
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Michael Roof
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Title:
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Vice President
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BlackRock Limited Duration Income
Trust
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BlackRock Global Floating Rate Income
Trust
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BlackRock Floating Rate Income Strategies
Fund, Inc.
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Longhorn CDO (Cayman) LTD
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Longhorn CDO III, LTD
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Master Senior Floating Rate Trust
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as Lender
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By:
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/s/
AnnMarie Smith
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Name:
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AnnMarie Smith
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Title:
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Authorized Signatory
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INWOOD PARK CDO LTD.
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By: Blackstone Debt Advisors L.P.
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as Collateral Manager
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By:
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/s/
Dean T. Criares
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Name: Dean T. Criares
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Title: Authorized Signatory
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LAFAYETTE SQUARE CDO LTD.
By: Blackstone Debt Advisors L.P.
as Collateral Manager
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By:
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/s/
Dean T. Criares
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Name: Dean T. Criares
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Title: Authorized Signatory
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LOAN FUNDING VI LLC,
for itself or as agent for Corporate Loan Funding VI LLC
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By:
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/s/
Dean T. Criares
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Name: Dean T. Criares
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Title: Authorized Signatory
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MONUMENT PARK CDO LTD.
By: Blackstone Debt Advisors L.P.
as Collateral Manager
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By:
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/s/
Dean T. Criares
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Name: Dean T. Criares
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Title: Authorized Signatory
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UNION SQUARE CDO LTD.
By: Blackstone Debt Advisors L.P.
as Collateral Manager
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By:
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/s/
Dean T. Criares
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Name: Dean T. Criares
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Title: Authorized Signatory
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By:
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/s/
Francis J. Delaney
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Name:
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Francis J.
Delaney
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Title:
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Managing Director
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By:
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/s/
Denis O’Meara
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Name:
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Denis
O’Meara
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Title:
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Managing Director
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By: Callidus Debt Partners CLO Fund
II, Ltd.
By: Its Collateral
Manager,
Callidus Capital Management,
LLC
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as Lender
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By:
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/s/
Ira Ginsburg
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Name:
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Ira Ginsburg
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Title:
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Principal
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By: Callidus Debt Partners CLO Fund
III, Ltd.
By: Its Collateral
Manager,
Callidus Capital Management,
LLC
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as Lender
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By:
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/s/
Ira Ginsburg
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Name:
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Ira Ginsburg
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Title:
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Principal
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CALYON New York Branch
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as Lender
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By:
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/s/
Nina Eshoo
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Name:
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Nina Eshoo
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Title:
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Managing Director
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CALYON New York Branch
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as Lender
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By:
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/s/
Gayer D. Bellamy Jr.
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Name:
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Gayer D. Bellamy Jr.
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Title:
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Director
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Citicorp USA, Inc.
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as Lender
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By:
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/s/
Nietzsche Rodricks
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Nietzsche S. Rodricks
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Name:
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Nietzsche Rodricks
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Director
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Title:
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Vice President
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386 Greenwich St, 21st floor
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New York, NY 10013
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(212) 816-8619
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By:
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/s/
Brian Blessing
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Name:
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Brian Blessing
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Title:
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Attorney-In-Fact
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COMMERZBANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
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By:
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/s/
Christopher Winthrop
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Name:
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Christopher Winthrop
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Title:
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Vice President
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By:
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/s/
Michael Fruchter
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Name:
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Michael Fruchter
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Title:
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Vice President
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CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Lender
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By:
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/s/
Brian Caldwell
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Name:
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BRIAN CALDWELL
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Title:
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DIRECTOR
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By:
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/s/
Morenkeji Ajayi
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Name:
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MORENKEJI AJAYI
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Title:
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ASSOCIATE
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By:
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/s/
Thomas Flannery
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Name:
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Thomas Flannery
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Title:
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Authorized Signatory
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