FIRST AMENDMENT
EXHIBIT
99.1
FIRST
AMENDMENT
THIS FIRST AMENDMENT (this “Amendment”) dated as
of May 13, 2009 to the Credit Agreement referenced below is among TENNESSEE
VALLEY AUTHORITY, a wholly owned corporate agency and instrumentality of the
United States of America (the “Borrower”), the
Lenders identified on the signature pages hereto and BANK OF AMERICA, N.A., as a
Lender and as Administrative Agent.
W I T N E
S S E T H
WHEREAS, pursuant to the Spring
Maturity Credit Agreement dated as of March 26, 2009 (as amended, modified,
supplemented, increased and extended from time to time, the “Credit Agreement”)
among the Borrower, the Lenders identified therein and the Administrative Agent,
the Lenders agreed to make extensions of credit to the Borrower;
and
WHEREAS, the parties have requested
certain modifications to the Credit Agreement and the parties have agreed to the
requested modifications on the terms and conditions set forth
herein.
NOW, THEREFORE, IN CONSIDERATION of the
premises and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
1. Defined
Terms. Capitalized terms used herein but not otherwise defined
herein shall have the meanings provided to such terms in the Credit
Agreement.
2. Amendments. The
Credit Agreement is amended in the following respects:
2.1 The
Aggregate Commitments are permanently reduced from $1,250,000,000 to
$1,000,000,000.
2.2 The
definitions of “Pricing Increase Condition” is added to Section 1.01 of the
Credit Agreement to read as follows:
“Pricing Increase
Condition” means any of
the following: (a) the aggregate outstanding principal amount of Loans
plus the aggregate outstanding principal amount of L/C Borrowings exceeds an
amount equal to 25% of the Aggregate Commitments or (b) the aggregate
outstanding principal amount of Loans plus the aggregate outstanding principal
amount of L/C Borrowing exceeds $0 on the date of determination and on each of
the 59 consecutive calendar days preceding the date of
determination.
2.3 The
definition of “Maturity Date” in Section 1.01 of the Credit Agreement is amended
to read as follows:
“Maturity
Date” means May 12, 2010.
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2.4 Schedule
1.01 to the Credit Agreement is amended to read as set forth on Exhibit A
hereto.
3. Conditions
Precedent. This Amendment shall become effective as of the
date set forth above upon satisfaction of each of the following conditions
precedent:
(a) receipt
by the Administrative Agent of counterparts of this Amendment executed by the
Borrower and the Lenders; and
(b) receipt
by the Administrative Agent of resolutions of the Borrower evidencing the
authority of the Borrower to enter into this Amendment certified by the
Secretary or by an Assistant Secretary of the Borrower to be true and correct as
of the date hereof.
4. No Other
Changes. Except as expressly modified hereby, all of the terms
and provisions of the Loan Documents shall remain in full force and
effect.
5. Reaffirmation of
Representations and Warranties. The Borrower represents and
warrants that each representation and warranty set forth in the Loan Documents
is true and correct in all material respects as of the date hereof (except those
that expressly relate to an earlier period).
6. Counterparts;
Delivery. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and it shall not be necessary in making proof of this Amendment to
produce or account for more than one such counterpart. Delivery of an
executed counterpart of this Amendment by facsimile or other electronic imaging
means shall be effective as an original.
7. Governing
Law. Except for those sections that specifically reference a
federal statute or regulation, this Amendment shall be deemed to be a contract
made under, and for all purposes shall be construed in accordance with, the laws
of the State of Tennessee. The foregoing notwithstanding, to the extent the
following defenses would be available to the Borrower under federal law, then
such defenses shall be available to the Borrower in connection with this
Amendment: (i) non-liability for punitive damages, (ii) exemption from
anti-trust laws, (iii) the Borrower cannot be contractually bound by
representation of an employee made without actual authority, (iv) presumption
that government officials have acted in good faith and (v) limitation on the
application of the doctrine of equitable estoppel to the
government. For the avoidance of doubt, the Credit Agreement, as
amended by this Amendment, shall continue to be governed by Section 10.15 Governing Law; Jurisdiction;
Etc. and not by Section 7, Governing Law, of
this Amendment.
[Signature
Page Follows]
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IN WITNESS WHEREOF, each of the parties
hereto has caused a counterpart of this First Amendment to Spring Maturity
Credit Agreement to be duly executed and delivered as of the date first above
written.
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BORROWER:
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TENNESSEE
VALLEY AUTHORITY
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By:
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/s/ Xxxx X.
Xxxxxxx
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Name:
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Xxxx
X. Xxxxxxx
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Title:
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Senior
Vice President and Treasurer
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ADMINISTRATIVE
AGENT:
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BANK
OF AMERICA,N.A.,
as
Administrative
Agent
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By:
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/s/ Xxxx X.
Xxxx
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Name:
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Xxxx
X. Xxxx
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Title:
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Senior
Vice President
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LENDER:
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BANK
OF AMERICA, N.A.,
as
a Lender
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By:
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/s/ Xxxx X.
Xxxx
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Name:
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Xxxx
X. Xxxx
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Title:
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Senior
Vice President
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