EXECUTION COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT dated as of May 22, 1997 to the Credit Agreement dated as of
August 2, 1996 (the "Credit Agreement") among THE AES CORPORATION (the
"Borrower"), the BANKS party thereto (the "Banks") BARCLAYS BANK PLC, XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, UNION BANK OF CALIFORNIA, N.A, and
NATIONSBANK, N.A., as Fronting Banks (the "Fronting Banks"), and XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Credit Agreement to
permit the Borrower and its Subsidiaries to incur certain debt;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, after this Amendment becomes effective,
refer to the Credit Agreement as amended hereby.
SECTION 2. New Defined Terms. Section 1.01 of the Credit Agreement is
amended to insert the following defined terms:
"Additional Permitted Subordinated Debt Agreement" means the
indenture or other agreement pursuant to which any Additional Permitted
Subordinated Debt is issued or incurred, as the same may, subject to
Section 5.11, be amended, modified or supplemented and in effect from
time to time.
"Additional Permitted Subordinated Debt" means Debt of AES
(other than Debt evidenced by the Existing Subordinated Notes) (i) in
an aggregate principal amount of not more than $250,000,000 and (ii)
which does not require any scheduled payment of principal prior to June
1, 2003 and which has subordination provisions no less favorable to the
Banks than those applicable to the Existing 10 1/4% Subordinated Notes
and other terms and provisions applicable to AES and its Subsidiaries
that are no more restrictive in any material respect (including,
without limitation, covenants and events of default) than (i) in the
case of Additional Permitted Subordinated Debt incurred under a bank-
type facility, those existing hereunder, (ii) in all other cases, those
applicable to the Existing 10 1/4% Subordinated Notes or (iii) in any
case, those otherwise acceptable to the Required Banks.
"CEMIG" means Companhia Energetica de Minas Gerais, an
integrated utility located in the state of Minas Gerais, Brazil.
"ESEBA" means Empresa Social de Energia de Buenos Aires S.A.,
an integrated utility servicing Buenos Aires which is being privatized
by the government of Argentina.
SECTION 3. Amendments to Defined Terms. (a) Definition of Consolidated
Tangible Net Worth. The definition of "Consolidated Tangible Net Worth" in
Section 1.01 of the Credit Agreement is amended to insert "(A)" after the words
"stockholders' equity" in the parenthetical clause contained in clause (ii)
thereof and to replace the word "but" following the word "LIGHT" in such
parenthetical clause with the expression: "and (B) the amount attributable to
the equity Investment by AES and its Consolidated Subsidiaries in CEMIG, but in
each case".
(b) Definition of Subordinated Debt. The definition of "Subordinated
Debt" in Section 1.01 of the Credit Agreement is amended to delete the word
"and" in the second line thereof and to add the following phrase at the end
thereof: "and the Additional Permitted Subordinated Debt".
(c) Definition of Subordinated Note Indenture. The definition of
"Subordinated Note Indenture" in Section 1.01 of the Credit Agreement is amended
to delete the word "and" in the second line thereof and to add the following
phrase at the end thereof: "and the Additional Permitted Subordinated Debt
Agreement."
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SECTION 4. Limitations on Project Exposure. The last sentence of
Section 5.07 of the Credit Agreement is amended to read in its entirety as
follows:
"The foregoing restriction shall not, so long as no Event of Default
hereunder is then continuing, prohibit or limit AES or any Subsidiary from
making Investments in (a) AES Light for the purpose of allowing AES Light to pay
principal, interest and other amounts due and owing under the Existing Light
Non-Recourse Facility, (b) any Subsidiary having a direct or indirect interest
in ESEBA (an "ESEBA Subsidiary") for the purpose of allowing an ESEBA Subsidiary
to pay principal, interest and other amounts due and owing in respect of Debt
incurred for the purpose of acquiring an interest in ESEBA or (c) any Subsidiary
having a direct or indirect interest in CEMIG (a "CEMIG Subsidiary") for the
purpose of allowing a CEMIG Subsidiary to pay principal, interest and other
amounts due and owing in respect of Debt incurred for the purpose of acquiring
an interest in CEMIG".
SECTION 5. Debt. Section 5.08 of the Credit Agreement is amended to
read in its entirety as follows:
"SECTION 5.08. Debt. (a) AES shall not, and shall not permit any
Subsidiary to, incur, assume, create or suffer to exist any Debt (including any
Guarantees of Debt and obligations in respect of letters of credit), except for:
(i) Debt under the Financing Documents (subject to
Section 5.15);
(ii) Debt incurred by a Subsidiary (A) (1) to finance
the development, acquisition, construction, maintenance or
working capital requirements of a Power Project operated or
managed (including on a joint basis with others), directly or
indirectly, by AES and in which such Subsidiary has an
interest or (2) in respect of any letter of credit issued in
replacement of funds on deposit in any debt service reserve or
other similar account of such Subsidiary (up to a maximum
aggregate stated amount of all such letters of credit of all
Subsidiaries equal to $100,000,000) to the extent that such
funds so replaced are received by AES as a result of such
funds being used to pay dividends or make distributions on the
capital stock of such Subsidiary and any other Subsidiary in
the chain of ownership between AES and such Subsidiary and (B)
that is not also the Debt of, or Guaranteed by, any other
Subsidiary with an interest in any other Power Project (except
for Debt incurred by AES Rio Diamante, Inc. consisting solely
of its pledge
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of stock of AES Ocean Springs Ltd. to secure the Debt of other
Subsidiaries of AES that is permitted under this paragraph
(ii), the proceeds of which are used to finance the
acquisition by such Subsidiaries from the government of
Argentina of equity interests in certain business units of
ESEBA);
(iii) Debt existing on the date hereof and identified
on Schedule I;
(iv) Debt owing to AES or a Consolidated Subsidiary
of AES;
(v) Debt of AES or its Subsidiaries representing a
refinancing, replacement or refunding of Debt permitted by
clauses (ii) and (iii) above; provided that (A) the aggregate
principal amount of such Debt outstanding or available will
not be increased at the time of such refinancing, replacement
or refunding (other than (1) in the case of Debt refinancing,
replacing or refunding Debt under the Existing AES Light
Non-Recourse Facility, an increase of up to $17,500,000 in
excess of the aggregate principal amount of Debt under the
Existing AES Light Non-Recourse Facility that is being
refinanced, replaced or refunded and (2) in the case of Debt
("Barbers Point Refinancing Debt") refinancing, replacing or
refunding Debt of AES Barbers Point, Inc. outstanding on May
15, 1997 (so long as such Barbers Point Refinancing Debt has
no scheduled principal repayments, or principal payments at
the option of the holder thereof in the absence of the
occurrence of specified events, prior to June 1, 2004) an
increase of up to $300,000,000 in excess of the aggregate
principal amount of Debt that is being refinanced, replaced or
refunded to the extent that proceeds in at least the amount of
such increase are received by AES as a result of such proceeds
being used to pay dividends or make distributions on the
capital stock of such Subsidiary and any other Subsidiary in
the chain of ownership between AES and such Subsidiary), (B)
no Obligor shall be liable for any such Debt except to the
extent that it was liable for the Debt so refinanced, replaced
or refunded, except that in the case of any Debt refinancing,
replacing or refunding Debt under the Existing AES Light
Non-Recourse Facility, any Subsidiary that has a direct or
indirect interest in LIGHT but does not have any direct or
indirect interest in any other Power Project may be liable for
such Debt and (C) if any Debt being refinanced, replaced or
refunded is
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subordinated to the Debt of either Borrower hereunder or of
any Subsidiary under any Guarantee thereof, such Debt shall be
subordinated at least to the same extent;
(vi) Guarantees by AES of Debt permitted by clauses
(ii)(A)(1) and (to the extent that the same constitutes a
refinancing of Debt permitted under such clause (ii)(A)(1))
(v) above;
(vii) Additional Permitted Subordinated Debt; and
(viii) Other Debt not described in clauses (i)
through (vii) above in an aggregate principal amount at any
time outstanding not to exceed $2,000,000.
(b) AES shall not issue any Additional Permitted Subordinated
Debt unless (i) both before and after giving effect to such issuance no
Default shall have occurred and be continuing and (ii) on a pro forma
basis after giving effect to such issuance and the application of the
proceeds thereof, AES would have been in compliance with Section 5.16
and 5.17 as of the last day of the fiscal quarter ended on, or most
recently ended prior to, the date of such issuance (assuming for this
purpose that such Additional Permitted Subordinated Debt was issued and
the proceeds applied on the first day of the period of four consecutive
fiscal quarters ended on such last day)."
SECTION 6. Representations of Borrower. The Borrower represents and
warrants that (i) the representations and warranties of the Borrower set forth
in Article 4 of the Credit Agreement will be true on and as of the Amendment
Effective Date and (ii) no Default will have occurred and be continuing on such
date.
SECTION 7. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
This Amendment may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
SECTION 8. Effectiveness. This Amendment shall become effective as of
the date hereof on the date (the "Amendment Effective Date") upon which the
Agent shall have received from each of the Borrower and the Required Banks a
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counterpart hereof signed by such party or facsimile or other written
confirmation (in form satisfactory to the Agent) that such party has signed a
counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
THE AES CORPORATION
By /s/
-------------------------
Title:
BANKS
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XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By /s/
-------------------------
Title:
BARCLAYS BANK PLC
By /s/
-------------------------
Title:
UNION BANK OF CALIFORNIA,
N.A.
By /s/
-------------------------
Title:
6
NATIONSBANK, N.A.
By /s/
-------------------------
Title:
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
By /s/
-------------------------
Title:
THE FIRST NATIONAL BANK
OF BOSTON
By /s/
-------------------------
Title:
THE BANK OF NOVA SCOTIA
By /s/
-------------------------
Title:
CREDIT LYONNAIS NEW YORK
BRANCH
By /s/
-------------------------
Title:
7
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN
BRANCHES
By /s/
-------------------------
Title:
By /s/
-------------------------
Title:
THE FIRST NATIONAL BANK OF
CHICAGO
By /s/
-------------------------
Title:
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By /s/
-------------------------
Title:
TORONTO DOMINION (NEW YORK),
INC.
By /s/
-------------------------
Title:
CIBC INC.
By /s/
-------------------------
Title:
8
CREDIT LOCAL DE FRANCE
By /s/
----------------------------
Title:
CREDIT SUISSE
By /s/
----------------------------
Title:
By /s/
----------------------------
Title:
ING (U.S.) CAPITAL CORPORATION
By /s/
----------------------------
Title:
By /s/
----------------------------
Title:
THE NIPPON CREDIT BANK, LTD.,
LOS ANGELES AGENCY
By /s/
----------------------------
Title:
XXXXX BANK N.A.
9
By /s/
-----------------------------------
Title:
THE SANWA BANK LIMITED,
NEW YORK BRANCH
By /s/
-----------------------------------
Title:
THE SAKURA BANK LIMITED
By /s/
-----------------------------------
Title
FRONTING BANKS
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BARCLAYS BANK PLC, as Fronting Bank
By /s/
-----------------------------------
Title:
UNION BANK OF CALIFORNIA, N.A.,
as Fronting Bank
By /s/
-----------------------------------
Title:
NATIONSBANK, N.A., as Fronting Bank
By /s/
-----------------------------------
Title:
10
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as Fronting Bank
By /s/
-----------------------------------
Title:
AGENT
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XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Agent
By /s/
-----------------------------------
Title:
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