FIRST AMENDMENT TO REIMBURSEMENT AGREEMENT
Exhibit
10(b)
FIRST
AMENDMENT TO REIMBURSEMENT AGREEMENT
THIS
FIRST AMENDMENT TO REIMBURSEMENT AGREEMENT, dated as of June 16, 2005 (this
“Amendment”),
to
the Existing Reimbursement Agreement (as defined below) is made by PPL ENERGY
SUPPLY, LLC, a Delaware limited liability company (the “Account
Party”),
and
certain of the Lenders (such capitalized term and other capitalized terms
used
in this preamble and the recitals below to have the meanings set forth in,
or
are defined by reference in, Article
I
below).
W
I T
N E S S E T H:
WHEREAS,
the Account Party, the Lenders and The Bank of Nova Scotia, as the Issuer
and as
Administrative Agent, are all parties to the Reimbursement Agreement, dated
as
of March 31, 2005 (as amended or otherwise modified prior to the date hereof,
the “Existing
Reimbursement Agreement”,
and as
amended by this Amendment and as the same may be further amended, supplemented,
amended and restated or otherwise modified from time to time, the “Reimbursement
Agreement”);
WHEREAS,
the Account Party has requested that the Lenders amend certain provisions
of the
Existing Reimbursement Agreement and the Lenders are willing, on the terms
and
subject to the conditions hereinafter set forth, to modify the Existing
Reimbursement Agreement as set forth below;
NOW,
THEREFORE, the parties hereto hereby covenant and agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.1. Certain
Definitions.
The
following terms when used in this Amendment shall have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
“Account
Party”
is
defined in the preamble.
“Amendment”
is
defined in the preamble.
“Amendment
Effective Date”
is
defined in Article
III.
“Existing
Reimbursement Agreement”
is
defined in the first
recital.
“Reimbursement
Agreement”
is
defined in the first
recital.
SECTION
1.2. Other
Definitions.
Terms
for which meanings are provided in the Reimbursement Agreement are, unless
otherwise defined herein or the context otherwise requires, used in this
Amendment with such meanings.
ARTICLE
II
AMENDMENTS
TO REIMBURSEMENT AGREEMENT
Effective
on (and subject to the occurrence of) the Amendment Effective Date, the
provisions of the Existing Reimbursement Agreement referred to below are
hereby
amended in accordance with this Article
II.
Except
as expressly so amended, the Existing Reimbursement Agreement shall continue
in
full force and effect in accordance with its terms.
SECTION
2.1. Amendment
to Section 1.1.
Section
1.1 of the Existing Reimbursement Agreement is hereby amended by inserting
the
following definitions in the appropriate alphabetical order:
“First
Amendment”
means
the First Amendment to Reimbursement Agreement, dated as of June 16, 2005,
among
the Account Party and the Lenders party thereto.
“First
Amendment Effective Date”
means
June 16, 2005.
SECTION
2.2. Amendment
to Section 2.1.
The
second to last sentence of Section 2.1 of the Existing Reimbursement Agreement
is hereby amended and restated in its entirety as follows:
No
Letter
of Credit shall be stated to expire (the “Stated
Expiry Date”)
beyond
the earlier of (i) the date five days prior to the date set forth in
clause
(b)
of the
definition of Commitment Termination Date and (ii) one year from the date
of
such extension; provided,
however, that a Letter of Credit may have a Stated Expiry Date (whether by
extension or at the time of issuance) that occurs after the Commitment
Termination Date, so long as (A) such Letter of Credit is Cash Collateralized
on
the Commitment Termination Date and (B) the Stated Expiry Date is no more
than
one year from the date of such issuance or extension.
ARTICLE
III
CONDITIONS
TO EFFECTIVENESS
This
Amendment and the amendments contained herein shall become effective on the
date
(the “Amendment
Effective Date”)
when
each of the conditions set forth in this Article
III
shall
have been fulfilled to the satisfaction of the Administrative
Agent.
SECTION
3.1. Counterparts.
The
Administrative Agent shall have received counterparts hereof executed on
behalf
of the Account Party and the Required Lenders.
SECTION
3.2. Costs
and Expenses, etc.
The
Administrative Agent shall have received for the account of each Lender,
all
fees, costs and expenses due and payable pursuant to Sections 3.2 and 10.3
of
the Reimbursement Agreement, if then invoiced.
SECTION
3.3. Satisfactory
Legal Form.
The
Administrative Agent and its counsel shall have received all information,
and
such counterpart originals or such certified or other copies of such materials,
as the Administrative Agent or its counsel may reasonably request, and all
legal
matters incident to the effectiveness of this Amendment shall be satisfactory
to
the Administrative Agent and its counsel. All documents executed or submitted
pursuant hereto or in connection herewith shall be reasonably satisfactory
in
form and substance to the Administrative Agent and its counsel.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.1. Cross-References.
References in this Amendment to any Article or Section are, unless otherwise
specified, to such Article or Section of this Amendment.
SECTION
4.2. Loan
Document Pursuant to Existing Reimbursement Agreement.
This
Amendment is a Loan Document executed pursuant to the Existing Reimbursement
Agreement and shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with all of the terms and provisions
of
the Existing Reimbursement Agreement, as amended hereby, including
Article X thereof.
SECTION
4.3. Successors
and Assigns.
This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
SECTION
4.4. Counterparts.
This
Amendment may be executed by the parties hereto in several counterparts,
each of
which when executed and delivered shall be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed
counterpart of a signature page to this Amendment by facsimile shall be
effective as delivery of a manually executed counterpart of this
Amendment.
SECTION
4.5. Governing
Law.
THIS
AMENDMENT WILL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS
5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK).
SECTION
4.6. Full
Force and Effect; Limited Amendment.
Except as expressly amended hereby, all of the representations, warranties,
terms, covenants, conditions and other provisions of the Existing Reimbursement
Agreement and the Loan Documents shall remain unchanged and shall continue
to
be, and shall remain, in full force and effect in accordance with their
respective terms. The amendments set forth herein shall be limited precisely
as
provided for herein to the provisions expressly amended herein and shall
not be
deemed to be an amendment to, waiver of, consent to or modification of any
other
term or provision of the Existing Reimbursement Agreement or any other Loan
Document or of any transaction or further or future action on the part of
any
Obligor which would require the consent of the Lenders under the Existing
Reimbursement Agreement or any of the Loan Documents.
SECTION
4.7. Representations
and Warranties.
In
order to induce the Lenders to execute and deliver this Amendment, the Account
Party hereby represents and warrants to the Lenders, on the Amendment Effective
Date, after giving effect to this Amendment, all statements set forth in
Section
5.2.1 of the Reimbursement Agreement are true and correct as of such date,
except to the extent that any such statement expressly relates to an earlier
date (in which case such statement was true and correct on and as of such
earlier date).
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment
as of the date first above written.
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PPL
ENERGY SUPPLY, LLC
By:__________________________
Title:
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THE
BANK OF NOVA SCOTIA
By:__________________________
Title:
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