EXHIBIT 99.2
AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED
CREDIT AND REIMBURSEMENT AGREEMENT
Dated as of August 10, 2004
AMENDMENT NO. 1 TO 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, CITICORP USA,
INC., as administrative agent (the "Agent") and CITIBANK, N.A., as Collateral
Agent, for the Bank Parties (the "Collateral Agent").
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 "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), Xxxxxx 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),
Societe Generale, as Co-Documentation Agent (for the Revolving Credit Facility),
Credit Lyonnaise New York Branch, as Co-Documentation Agent (for the Revolving
Credit Facility), the Administrative Agent and the Collateral Agent;
(2) WHEREAS, the Borrower has requested that the Bank Parties agree to
amend the Credit Agreement;
(3) WHEREAS, the Bank Parties have agreed, subject to the terms and
conditions hereinafter set forth, to amend the Credit Agreement in certain
respects as set forth below.
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. Amendments to the Credit Agreement. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2, hereby amended as follows:
Amendment No. 1 to Third Amended and Restated Credit Agreement
2
(a) Section 1.01 of the Credit Agreement is hereby amended as follows:
(i) The following definitions shall be added in alphabetical order to
read as follows:
"Amendment No. 1" means Amendment No. 1 to this Agreement, dated as of
August 10, 2004, among the Borrower, the Subsidiary Guarantors, the
Bank Parties, the Agent and the Collateral Agent.
"Initial Term Loan Amendment Effective Date" means the date that
Amendment No. 1 to this Agreement becomes effective in accordance with
Sections 2(a) and 2(c) of Amendment No. 1.
"Permitted Business" means, with respect to any Person, (i) a line of
business which is substantially the same line of business as one or
more of the principal businesses of such Person and its Subsidiaries,
(ii) a line of business which is complementary or ancillary to, one or
more of the principal businesses of such Person and its Subsidiaries,
(iii) any infrastructure business, (iv) any public utility business and
(v) the ownership, extraction, processing, transportation, distribution
and sales of fossil fuels and derivatives thereof, but, in each case,
excluding trading activities or hedging transactions, other than (x)
such activities conducted in the ordinary course of business, (y) such
activities conducted in a manner consistent with past practices and (z)
such activities or transactions intended to enhance the performance of
physical assets.
(ii) The definition of "Base Rate Margin" in Section 1.01 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
"Base Rate Margin" means (i) in respect of the Revolving Credit Loans,
a rate per annum equal to 1.50% (subject to the provisions of Section
2.06(f) hereof), (ii) in respect of the Initial Term Loans, a rate per
annum equal to 1.25% (subject to the provisions of Section 2.06(f)
hereof), and (iii) in respect of the Incremental Term Loan Facility, a
rate per annum to be agreed to by the Borrower, the Agent and the
Incremental Term Loan Banks.
(iii) The definition of "Euro-Dollar Margin" in Section 1.01 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Euro-Dollar Margin" means (i) in respect of the Revolving Credit
Loans, a rate per annum equal to 2.50% (subject to the provisions of
Section 2.06(f) hereof), (ii) respect of the Initial Term Loans, a rate
per annum equal to 2.25% (subject to the provisions of Section 2.06(f)
hereof) and (iii) in respect of the Incremental Term Loan Facility, a
rate per annum to be agreed to by the Borrower, the Agent and the
Incremental Term Loan Banks.
(iv) The definition of "Revolving Letter of Credit Commission Rate" in
Section 1.01 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
Amendment No. 1 to Third Amended and Restated Credit Agreement
3
"Revolving Letter of Credit Commission Rate" means a rate per annum
equal to 2.50%.
(v) The definition of "Termination Date" in Section 1.01 of the Credit
Agreement is hereby amended by amending and restating clause (ii) therein to
read as follows:
"(ii) the seventh anniversary of the Initial Term Loan Amendment
Effective Date, in the case of the Initial Term Loan Facility (the
"Initial Term Loan Termination Date") and"
(b) Section 5.04 of the Credit Agreement is hereby amended by amending
and restating clause (a) therein in its entirety to read as follows:
"(a) will continue, and will cause each of AES BVI II, the Material AES
Entities and the Pledged Subsidiaries to continue, to engage in a
Permitted Business;"
(c) Section 5.13 of the Credit Agreement is hereby amended by inserting
the phrase "and thereafter" immediately after the date "March 31, 2008" therein.
(d) Section 5.14 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
"The Borrower will maintain at the end of each fiscal quarter of the
Borrower, a Recourse Debt to Cash Flow Ratio of not more than the ratio
set forth below for each period set forth below:
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Four Fiscal Quarter Ending Maximum Recourse Debt to Cash
Flow Ratio
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December 31, 2003 8.5
March 31, 2004 8.5
June 30, 2004 8.5
September 30, 2004 8.5
December 31, 2004 8.5
March 31,2005 8.35
June 30, 2005 8.25
September 30, 2005 8.15
December 31, 2005 8.00
March 31, 2006 7.90
June 30, 2006 7.85
September 30, 2006 7.80
December 31, 2006 7.75
March 31, 2007 7.70
June 30, 2007 7.65
September 30, 2007 7.60
December 31, 2007 7.55
March 31, 2008 7.50
June 30, 2008 7.50
Amendment No. 1 to Third Amended and Restated Credit Agreement
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September 30, 2008 7.50
December 31, 2008 7.25
March 31, 2009 7.25
June 30, 2009 7.25
September 30, 2009 7.25
December 31, 2009 7.00
March 31, 2010 7.00
June 30, 2010 7.00
September 30, 2010 7.00
December 31, 2010 6.50
March 31, 2011 6.50
June 30, 2011 and thereafter 6.25
(e) Section 5.16(a)(x) of the Credit Agreement is hereby amended by
amending and restating clause (B) therein in its entirety to read as follows:
"(B) such Investment shall be in property and assets, or in the Equity
Interests of a Person owning property and assets, which are part of a
Permitted Business; and"
(f) Section 5.18 of the Credit Agreement is hereby amended by adding at
the end of clause (iii) therein the following proviso to read as follows:
"; provided, further, however, that for the avoidance of doubt, the
transfer of AES GEH Holdings, LLC's ownership interest in Global Energy
Holdings CV to AES GEH, Inc. and the subsequent dissolution of AES GEH
Holdings, LLC is permitted hereunder;"
SECTION 2. Conditions to Effectiveness.
(a) Except to the extent set forth in Sections 2(b) and (c) below, this
Amendment shall become effective when, and only when, and as of the date (the
"Amendment No. 1 Effective Date") on which 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 and (i) when, and only when, the Agent shall have additionally
received a certificate signed by a duly authorized officer of the Borrower dated
the Amendment No. 1 Effective Date, to the effect that, after giving effect to
this Amendment: (x) the representations and warranties contained in each of the
Financing Documents are true and correct in all material respects on and as of
the Amendment No. 1 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 (y) no Default has occurred and is continuing, (ii) the Agent shall
have received a favorable opinion of the Assistant General Counsel of the
Borrower regarding the due authorization, execution and delivery of this
Amendment and other matters reasonably requested by the Agent and (iii) the
Agent shall have received all fees due and payable in connection with this
Amendment and the
Amendment No. 1 to Third Amended and Restated Credit Agreement
5
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).
(b) Section 1(a)(iv) and, solely to the extent relating to Revolving
Credit Loans, Sections 1(a)(ii) and 1(a)(iii) of this Amendment shall become
effective (i) when, and only when, and as of the date (the "Revolver Pricing
Effective Date") on which the Agent shall have received counterparts of this
Amendment executed by the Borrower and each of the Subsidiary Guarantors and all
of the Revolving Credit Loan Banks or, as to any of the Revolving Credit Loan
Banks, advice satisfactory to the Agent that such Bank Party has executed this
Amendment, (ii) the Revolving Credit Loan Banks shall have received all fees due
and payable in connection with this Amendment and (iii) the Agent shall have
received a certificate signed by a duly authorized officer of the Borrower dated
the Revolver Pricing Effective Date, to the effect that, after giving effect to
this Amendment: (x) the representations and warranties contained in each of the
Financing Documents are true and correct in all material respects on and as of
the Revolver Pricing 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 (y) no Default has occurred and is continuing.
(c) The first two definitions in Section 1(a)(i), Section 1(a)(v),
Sections 1(c) and 1(d), and, solely to the extent relating to the Initial Term
Loans, Sections 1(a)(ii) and 1(a)(iii) of this Amendment shall become effective
(i) when, and only when, and as of the date (the "Initial Term Loan Amendment
Effective Date") on which the Agent shall have received counterparts of this
Amendment executed by the Borrower and each of the Subsidiary Guarantors and all
of the Initial Term Loan Banks or, as to any of the Initial Term Loan Banks,
advice satisfactory to the Agent that such Bank Party has executed this
Amendment and (ii) the Agent shall have received a certificate signed by a duly
authorized officer of the Borrower dated the Initial Term Loan Amendment
Effective Date, to the effect that, after giving effect to this Amendment: (x)
the representations and warranties contained in each of the Financing Documents
are true and correct in all material respects on and as of the Initial Term Loan
Amendment 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 (y) 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 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) No Default has occurred and is continuing on the date hereof.
Amendment No. 1 to Third Amended and Restated Credit Agreement
6
SECTION 4. Reference to and Effect on the Financing Documents. (a) On
and after the Amendment No. 1 Effective Date, the Revolver Pricing Effective
Date or the Initial Term Loan Amendment Effective Date, as applicable, 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 amended and
otherwise modified hereby.
(b) The Credit Agreement, the Notes and each of the other Financing
Documents, as specifically amended 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 amended by this Amendment.
(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 Credit Agreement or the other Financing Documents, nor
constitute a 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, as amended hereby, 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 amended 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 RIGHT 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.
Amendment No. 1 to Third Amended and Restated Credit Agreement
7
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.
Amendment No. 1 to Third Amended and Restated Credit Agreement
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.
THE AES CORPORATION,
as Borrower
By /s/ Xxxxx X. Xxxxx
-------------------------------
Title:
Address: 0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Amendment No. 1 to Third Amended and Restated Credit Agreement
SUBSIDIARY GUARANTORS:
AES HAWAII MANAGEMENT COMPANY, INC.,
as Subsidiary Guarantor
By Xxxxxxx X. Xxxxxxxx, III
-----------------------------
Title:
Address:
Fax:
AES NEW YORK FUNDING, L.L.C.,
as Subsidiary Guarantor
By Xxxxxxx X. Xxxxxxxx, III
-----------------------------
Title:
Address:
Fax:
AES OKLAHOMA HOLDINGS, L.L.C.,
as Subsidiary Guarantor
By Xxxxxxx X. Xxxxxxxx, III
-----------------------------
Title:
Address:
Fax:
AES WARRIOR RUN FUNDING, L.L.C.,
as Subsidiary Guarantor
By Xxxxxxx X. Xxxxxxxx, III
-----------------------------
Title:
Address:
Fax:
Amendment No. 1 to Third Amended and Restated Credit Agreement
AGENTS:
CITICORP USA, INC.,
as Agent
By /s/ Xxxxxx Xxxx
-----------------------------
Title:
Address: 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxx
Email: xxxxxxxxxxxxxxx@xxxxxxxxx.xxx
CITIBANK N.A.,
as Collateral Agent
By /s/ Xxxxxx Xxxx
-----------------------------
Title:
Address: 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxx
Amendment No. 1 to Third Amended and Restated Credit Agreement
