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EXHIBIT 10.15
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
This First Amendment to Revolving Credit Agreement dated as of
March, 17 1998, by and among NRG Energy, Inc. (the "Borrower"), the banks from
time to time party to the Credit Agreement (as hereinafter defined) (each a
"Bank" and collectively the "Banks") and ABN AMRO Bank N.V. in its capacity as
agent for the Banks (in such capacity, the "Agent").
WITNESSETH THAT:
WHEREAS, the Borrower, the Banks and the Agent are party to that
certain Revolving Credit Agreement dated as of March 17, 1997 (together with all
exhibits, schedules, attachments, appendices and amendments thereof, the "Credit
Agreement"); and
WHEREAS, the Borrower has requested that the Credit Agreement be
amended to, among other things, modify the definition of "Consolidated Tangible
Net Worth" and the Banks are agreeable to such request.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Borrower, the Banks and the
Agent hereby agree as follows:
1. The definitions of, "Consolidated Capitalization", "Consolidated Net
Income" and "Consolidated Tangible Net Worth" appearing in Section 1.1. of the
Credit Agreement are hereby deleted in their entirety and the following
definitions are hereby substituted therefor:
"Consolidated Capitalization" means Consolidated Net Worth plus
Indebtedness of the Borrower.
"Consolidated Net Income" means, for any period, the net income
(or net loss) of the Borrower for such period computed on a
consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, as of the date of determination
thereof, the amount which would be reflected as stockholders'
equity upon a consolidated balance sheet of the Borrower
(determined in accordance with GAAP) prior to making any
adjustment thereto in connection with the account entitled
"currency translation account" on such balance sheet.
2. The definition of "Guaranty" appearing in Section 1.1. of the Credit
Agreement is hereby amended by inserting the following sentence at the end of
such definition:
Notwithstanding anything in this definition to the contrary, a
Person's support of its subsidiary's obligation to (a) make
equity contributions or (b) pay liquidated damages under an
operating and maintenance agreement should such subsidiary fail
to comply with the terms thereof shall not be considered a
"Guaranty" by such Person.
3. The definition of "Indebtedness" appearing in Section 1.1. of the Credit
Agreement is hereby amended by inserting the following at the end of such
definition:
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All calculations of the Indebtedness of any Person (and the
components thereof) shall be performed on a consolidated basis-
provided, that Indebtedness shall not include obligations which
are required by GAAP to be shown as liabilities on such Person's
balance sheet, but which are non-recourse to such Person.
4. The definition of "Minimum Consolidated Tangible Net Worth" appearing in
Section 1.1. of the Credit Agreement is hereby deleted in its entirety and the
following definition is hereby substituted therefor:
"Minimum Consolidated Net Worth" means an amount, as of any
determination thereof, equal to the sum of $175,000,000 plus 25%
of Consolidated Net Income for the period from and including
April 1, 1996 to such determination date but which amount shall
in no event be less than $175,000,000.
5. The following definitions are hereby inserted into Section 1.1. of the
Credit Agreement in proper alphabetical order:
"Material Subsidiary" means a Subsidiary of the Borrower whose
total assets represent at least 5% of the total assets of the
Borrower and its Subsidiaries determined based upon the most
recent financial statements delivered pursuant to Section 7.6 (as
determined in accordance with GAAP).
"364-Day Credit Agreement" means that certain 364-Day Revolving
Credit Agreement among NRG. Energy, Inc., ABN AMRO Bank N.V., as
Agent and the banks party thereto, as from time to time amended
or otherwise modified.
6. Section 2.1(a) of the Credit Agreement is hereby amended by deleting the
reference to "Section 11.12 or 11.13(iii)" in such section and replacing it with
a reference to "Section 3.2(b), 11.12 or 11.13(iii)".
7. Section 2.8 of the Credit Agreement is hereby amended by deleting the
last sentence of Section 2.8(b) thereof and inserting the following new
subsection (c) as follows:
(c) Each such prepayment shall be accompanied by a payment of all
accrued and unpaid interest on the Loans prepaid and shall be
subject to Section 2.11.
8. Section 3.2 of the Credit Agreement is hereby deleted and the following
Section 3.2 is hereby substituted therefor:
Section 3.2. Extension of Termination Date. (a) No later than
ninety (90) days before the second anniversary date of this
Agreement the Borrower may make a request for a one year
extension of the Termination Date in a written notice to the
Agent. The Agent will promptly inform the Banks of any such
request. Each Bank may, in its sole and absolute discretion,
determine whether to consent to such request and may by a
revocable written notice (a "Consent Notice") to the Agent and
the Borrower given
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no later than sixty (60) days prior to the second anniversary
date of this Agreement (the period from ninety (90) days prior to
such anniversary to and including sixty (60) days prior to such
anniversary being the "Consent Period") notify the Agent and the
Borrower of its determination to consent to such request. Failure
by any Bank to respond within the Consent Period shall be deemed
to be a denial of the Borrower's request by such Bank. Promptly
after the Consent Period the Agent shall notify the Banks and the
Borrower of which Banks have delivered a Consent Notice. Any Bank
may revoke its Consent Notice at any time after the date sixty
(60) days prior to the second anniversary date of this Agreement
to and including the date forty-five (45) days prior to such
anniversary (the "Revocation Period") by giving written notice to
the Agent and the Borrower of such revocation (a "Revocation
Notice"). If the Agent does not receive a Revocation Notice
within the Revocation Period from a Bank who has previously
delivered a Consent Notice, such Bank's Consent Notice shall
become irrevocable. If the Required Banks or the Agent in its
capacity as a Bank have not delivered Consent Notices which shall
have become irrevocable in accordance with the foregoing, the
Termination Date shall not be extended and the Agent shall
promptly notify the Banks and the Borrower of such circumstance.
If the Required Banks and the Agent in its capacity as a Bank
shall have delivered Consent Notices which shall have become
irrevocable in accordance with the foregoing, the Agent shall
promptly notify the Borrower of such circumstance and the
Borrower shall, no later than thirty (30) days prior to such
second anniversary date, notify the Agent if it still desires the
extension of the Termination Date. If the Borrower notifies the
Agent in writing no later than thirty (30) days prior to such
second anniversary date that it no longer desires the extension
of the Termination Date, then the Termination Date shall not be
extended and the Agent shall promptly notify the Banks and the
Borrower of such circumstance. If the Agent does not receive a
written notice from the Borrower no later than thirty (30) days
prior to the second anniversary date of this Agreement stating
that it no longer desires the extension of the Termination Date
or the Borrower delivers written notice by such date to the Agent
that it still desires the extension of the Termination Date,
then, subject to any conditions precedent that the Agent may
require in connection with such extension (e.g., the remaking of
representations and warranties, no Default or Event of Default
having occurred and the delivery of a legal opinion and other
appropriate documentation) and as to such consenting Banks only,
the Termination Date shall be so extended, such extension to be
effective as of the second anniversary date of this Agreement and
the Agent shall promptly notify the Banks and the Borrower of
such circumstance.
(b) In the event any Bank shall fail to agree to any extension
requested by the Borrower pursuant to Section 3.2(a) (each such
Bank a "Dissenting Bank"), the Borrower shall have the right to
arrange with one or more Banks acceptable to the Agent that have
consented to the extension of the Termination Date or other
lenders acceptable to the Agent to assume all or a part of such
Dissenting Bank's obligations under this Agreement. If the
Borrower shall arrange for such a Bank or
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lender to assume all or part of the obligations of any Dissenting
Bank, then such Dissenting Bank and such Bank or lender shall
execute and deliver to the Agent, for its acceptance and
recording, an assignment agreement along with the accompanying
documentation prescribed in Section 11.12 hereof. If the Borrower
can not arrange for such a Bank or lender to assume the
obligations of such Dissenting Bank, then (i) the Commitment of
such Dissenting Bank shall terminate on the Termination Date in
effect immediately before such extension, (ii) the Borrower shall
repay in full on such Termination Date all Obligations payable to
such Dissenting Bank under this Agreement (including all accrued
interest and fees) and (iii) such Dissenting Bank will not be
obligated to make any Loan or purchase a Participating Interest
in any Letter of Credit with a maturity date or expiration date
later than such Termination Date.
9. Section 5.2 of the Credit Agreement is hereby amended by deleting the
first sentence thereof in its entirety and substituting the following sentence
therefor:
Schedule 5.2 (as updated quarterly pursuant to Section 7.6(b)
hereof or otherwise from time to time in writing by the Borrower)
hereto identifies each Subsidiary and the jurisdiction of its
incorporation.
10. Section 5.4 of the Credit Agreement is hereby amended by deleting the
words "and its Subsidiaries" appearing in the second sentence thereof.
11. Section 5.5(a) and (b) of the Credit Agreement are hereby amended by
deleting the first parenthetical appearing in each such subsection in its
entirety and substituting the following parenthetical therefor:
(as updated quarterly pursuant to Section 7.6(b) hereof or
otherwise from time to time in writing by the Borrower)
12. Section 6.2(b) of the Credit Agreement is hereby amended by inserting
the following proviso at the end of such subsection:
, provided that solely for purposes of this Section 6.2(b) the
representations relating to the Borrower's Subsidiaries set forth
in Section 5.2 hereof shall be deemed representations relating
only to the Borrower's Material Subsidiaries.
13. Section 7.6(a) of the Credit Agreement is hereby amended by(i)
inserting the word "treasurer," after the words "chief financial officer,"
appearing in subsection (i)(B) and subsection (ii) thereof and (ii) inserting
the following language immediately prior to the semi-colon at the end of
subsection (ii)thereof (:
(subject to year end adjustments)
14. Section 7.6(b) of the Credit Agreement is hereby deleted in its
entirety and the following Section 7.6(b) is hereby substituted therefor:
(b) Each financial statement furnished to the Banks pursuant
to subsection (i) or (ii) of Section 7.6(a) shall be accompanied
by (A) a
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written certificate signed by the Borrower?s chief financial
officer, vice president of finance, corporate controller or
treasurer (i) to the effect that no Default or Event of Default
has occurred during the period covered by such statements or, if
any such Default or Event of Default has occurred during such
period, setting forth a description of such Default or Event of
Default and specifying the action, if any, taken by the Borrower
to remedy the same, (ii) to the effect that the representations
and warranties contained in Section 5 hereof are true and correct
in all material respects as though made on the date of such
certificate (other than those made solely as of an earlier date,
which need only remain true as of such date), taking into account
any amendments to such Section (including, without limitation,
any amendments to the Schedules referenced therein) made after
the date of this Agreement in accordance with its provisions and
except as otherwise described therein, (iii) notifying the Banks
(x) of any litigation or governmental proceeding of the type
described in Section 5.5 hereof or (y) of any change in the
information set forth on the Schedules hereto and (B) a
Compliance Certificate in the form of Exhibit C hereto showing
the Borrower's compliance with the covenants set forth in
Sections 7.9, 7.11, 7.12 and 7.13 hereof.
15. Section 7.6(c) of the Credit Agreement is hereby deleted in its
entirety and the following Section 7.6(c) is hereby substituted therefor:
(c) The Borrower will (i) promptly (and in any event within three
Business Days after an officer of the Borrower has knowledge
thereof) give notice to the Agent and each Bank (x) of the
occurrence of any Default or Event of Default or (y) of any
payment default or payment event of default aggregating
$20,000,000 or more under any Contractual Obligation of the
Borrower and (ii) promptly (and in any event within ten Business
Days after an officer of the Borrower has knowledge thereof) give
notice to the Agent and each Bank of any material adverse change
in the business, operations, Property or financial or other
condition of the Borrower and its Subsidiaries (individually or
in the aggregate).
16. Section 7.12 of the Credit Agreement is hereby deleted in its entirety
and the following Section 7.12 is hereby substituted therefor:
Section 7.12. Consolidated Net Worth. (a) The Borrower will at
all times maintain a ratio of Consolidated Net Worth to
Consolidated Capitalization of at least 0.32 to 1.00, and (b) the
Borrower will at all times cause its Consolidated Net Worth to be
equal to or greater than the Minimum Consolidated Net Worth.
17. Section 9.3(d) of the Credit Agreement is hereby amended by inserting
the following language to the end of the last sentence thereof:
and on the date of replacement, the Borrower shall pay all
accrued interest and fees to the Bank that is being replaced.
18. Section 11.13 of the Credit Agreement is hereby amended by: (i)
inserting the following language after the words "reduce the" appearing in
subsection (i)(B) thereof: "stated rate at which interest
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or fees accrue or reduce the" and (ii) inserting the following language to the
end of the penultimate sentence of subsection (iii) thereof: "and all fees due
and owing on the date of replacement".
19. Section 11.12 of the Credit Agreement is hereby amended by deleting the
phrase "Section 11.13(iii) below" and replacing it with the phrase "Section
3.2(b) or 11.13(iii)".
20. Section 11.12. of the Credit Agreement is hereby further amended by
inserting the following sentence at the end of such section:
A Bank may not assign its Revolving Credit Commitment hereunder
unless it shall simultaneously assign the same percentage of its
commitment, if any, under the 364-Day Credit Agreement. If the
Borrower replaces a Dissenting Bank or Replaceable Bank with
another entity, it shall also cause the assignment of such
Dissenting Bank or Replaceable Bank's commitment, if any, under
the 364-Day Credit Agreement in accordance with the terms
thereof, and such Dissenting Bank or Replaceable Bank agrees to
cooperate in the making of such assignment.
21. Section 8.1 of the Credit Agreement is hereby amended by (i) deleting
the word "or" appearing at the end of clause (j) of such section, (ii) deleting
the period at the end of clause (k) of such section and replacing it with "; or"
and (iii) inserting the following clause (l) at the end of such section:
(l) an "event of default" occurs under the 364-Day Credit
Agreement.
22. Section 11.15 of the Credit Agreement is hereby amended by inserting
the word "Affiliates," after the words "their respective" appearing in the
second sentence thereof.
23. Schedule 1 of the Credit Agreement is hereby amended by inserting the
following language after the Pricing Grid appearing in such Schedule:
Any change in Rating (and in any fees or interest payable
hereunder based on Ratings) shall be effective as of the date on
which S&P or Xxxxx'x, as the case may be, announces the
applicable change in such Rating. In the event of a split rating,
the lower rating shall control.
24. Schedule C-1 to Exhibit C to the Credit Agreement is hereby deleted in
its entirety and Schedule C-1 attached hereto is hereby substituted therefor.
Except as expressly amended hereby, the Credit Agreement and
all other documents executed in connection therewith shall remain in full force
and effect in accordance with their respective terms. The Credit Agreement, as
amended hereby, and all rights and powers created thereby and thereunder or
under such other documents are in all respects ratified and confirmed. From and
after the date hereof, the Credit Agreement shall be deemed to be amended and
modified as herein provided, but, except as so amended and modified, the Credit
Agreement shall continue in full force and effect in accordance with its terms
and the Credit Agreement and this Amendment shall be read, taken and construed
as one and the same instrument. On and after the date hereof the term
"Agreement" as used in the Credit Agreement and all other references to the
Credit Agreement in the Credit Agreement, the other documents executed in
connection therewith and/or herewith or any other instrument, document or
writing executed by the Borrower or any other person or furnished to the Agent
and/or the Banks by the
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Borrower, or any other person in connection herewith or therewith, shall be
deemed to be a reference to the Credit Agreement as hereby amended.
On and as of the date hereof, the Borrower represents and warrants to the
Banks that:
(a) The representations and warranties contained in this Amendment and
the Credit Agreement are true and correct in all material respects, in each
case as though made on and as of the date hereof, except to the extent such
representations and warranties relate solely to an earlier date (and then
as of such earlier date); and
(b) Both before and after giving effect to this Amendment, no Default
of Event of Default has occurred and is continuing or would result from the
execution and delivery of this Amendment; and
(c) The Borrower is, and will be, in full compliance with all of the
material terms, conditions and all other provisions of this Amendment and
the Credit Documents; and
(d) This Amendment has been duly authorized, executed and delivered on
its behalf, and both the Credit Agreement, both before being amended and
supplemented hereby and as amended and supplemented hereby, and this
Amendment constitutes its legal, valid and binding obligation enforceable
against it in accordance with its terms, except to the extent that a remedy
or default may be determined by a court of competent jurisdiction to
constitute a penalty and except to the extent that enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to creditors' rights or by general principles of
equity.
This Amendment shall be construed in accordance with and governed by the
internal laws of the State of New York.
This Amendment may be signed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Except as otherwise specified herein, this Amendment embodies the entire
agreement and understanding between the Borrower and the Banks with respect to
the subject matter hereof and supersedes all prior agreements, consents and
understandings relating to such subject matter.
This Amendment shall be binding upon and inure to the benefit of the Banks
and their successors and assigns and the Borrower and its permitted successors
and assigns.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their duly authorized officers as
of the day and year first above written.
BORROWER: NRG ENERGY, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
AGENT/BANK: ABN AMRO BANK N.V., in its individual capacity
as a Bank and as Agent
By:___________________________________
Name:_________________________________
Title:________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
OTHER BANKS: CIBC INC.
By:___________________________________
Name:_________________________________
Title:________________________________
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COMMERZBANK AG
By:___________________________________
Name:_________________________________
Title:________________________________
CREDIT LOCAL DE FRANCE,
NEW YORK AGENCY
By:___________________________________
Name:_________________________________
Title:________________________________
NATIONSBANK, N.A.
By:___________________________________
Name:_________________________________
Title:________________________________
SOCIETE GENERALE, CHICAGO BRANCH
By:___________________________________
Name:_________________________________
Title:________________________________
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XXX XXXXX XXXXXXXXX BANK
By:___________________________________
Name:_________________________________
Title:________________________________
UNION BANK OF SWITZERLAND
NEW YORK BRANCH
By:___________________________________
Name:_________________________________
Title:________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
WESTDEUTSCHE LANDERSBANK
GIROZENTRALE, NEW YORK
BRANCH
By:___________________________________
Name:_________________________________
Title:________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
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Compliance Certificate
Schedule C-1
Compliance Calculations for Credit Agreement
Calculation as of ____________, 19_______
A. Liens (Section 7.9)
1. Total Liens $___________
2. Existing Liens $__________
3. Balance of Liens $______________ (Line A1 minus Line A2)
(Line A3 not to exceed 10% of Consolidated Net Tangible Assets)
B. Sale of Assets (Section 7.11)
1. Net book value of assets sold
during this fiscal year $_______________
(Line B1 not to exceed 10% of Consolidated Net Tangible
Assets)
C. Consolidated Net Worth (Section 7.12)
1. Consolidated stockholders' equity $____________
2. Less currency translation account $____________
3. Consolidated Net Worth
(Line C1 minus Line C2) $____________
D. Consolidated Capitalization
1. Consolidated Net Worth (Line C3) $____________
2. Indebtedness of the Borrower $____________
3. Consolidated Capitalization
(Sum of line D1 and D2) $____________
E. Ratio of Consolidated Net Worth to Consolidated Capitalization
___ to ___
(ratio must be at least 0.32 to 1.00)
