EIGHTH AMENDMENT TO REIMBURSEMENT AGREEMENT
Exhibit
10(a)
EIGHTH
AMENDMENT TO REIMBURSEMENT AGREEMENT
THIS
EIGHTH AMENDMENT TO REIMBURSEMENT AGREEMENT, dated as of March 30, 2009 (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”); and
WHEREAS,
the Account Party has requested that the Lenders amend certain provisions of the
Existing Reimbursement Agreement and the Lenders are willing to modify the
Existing Reimbursement Agreement on the terms and subject to the conditions
hereinafter set forth;
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.
“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
Existing Reimbursement Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendment with such
meanings.
ARTICLE
II
AMENDMENTS
TO THE EXISTING REIMBURSEMENT AGREEMENT
Effective
as of the date hereof, but subject to the occurrence of the satisfaction of the
conditions in Article
III, the provisions of the Existing Reimbursement Agreement referred to
below are hereby amended in accordance with this Article
II.
SECTION
2.1. Amendment
to Section 1.1. Section 1.1 of the Existing Reimbursement
Agreement is hereby amended by
(a) inserting
the following definitions in the appropriate alphabetical order:
“Eighth
amendment” means the Eighth amendment to Reimbursement Agreement, dated
as of March 30, 2009, among the Account Party and the Lenders party
thereto.
(b) amending
and restating the definition of “Letter of Credit Commitment Amount” in its
entirety as follows:
“Letter
of Credit Commitment Amount” means, on any date, a maximum amount of
$200,000,000.
(c) amending
and restating the definition of “Stated Maturity Date” in its entirety as
follows:
“Stated
Maturity Date” means March 31, 2010.
SECTION
2.2. Amendment
to Section 3.2.1. Section 3.2.1 of the Existing Reimbursement
Agreement is hereby amended by deleting the percentage “0.15%” therein and
inserting the percentage “0.50%” in lieu thereof.
SECTION
2.3. Amendment
to Section 3.2.2. Section 3.2.2 of the Existing Reimbursement
Agreement is hereby amended by deleting the percentage “0.50%” therein and
inserting the percentage “2.25%” in lieu thereof.
ARTICLE
III
CONDITIONS
TO EFFECTIVENESS
This
Amendment and the amendments contained herein shall become effective as of the
date hereof 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 each of the 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 Section 10.3 of the Reimbursement Agreement, if then
invoiced.
SECTION
3.3. Upfront
Fee. The Administrative Agent shall have received for its own
account an upfront fee from the Account Party in the amount equal to 0.75%
multiplied by the Letter of Credit Commitment Amount.
SECTION
3.4. Resolutions,
etc. The Administrative Agent shall have received from the
Account Party (i) a copy of a good standing certificate, dated a date
reasonably close to the date hereof and (ii) a certificate, dated as of the
date hereof, duly executed and delivered by any vice president, the controller,
the treasurer, the assistant treasurer, secretary or assistant secretary of the
Account Party as to
(a) resolutions
of the Account Party’s Board of Managers then in full force and effect
authorizing the execution, delivery and performance of this Amendment and the
transactions contemplated hereby;
(b) the
incumbency and signatures of those of its officers authorized to act with
respect to this Amendment; and
(c) the
full force and validity of each Organic Document of the Account Party and copies
thereof;
upon
which certificates the Administrative Agent and all Lenders may conclusively
rely until it shall have received a further certificate of any such officer of
the Account Party canceling or amending such prior certificate.
SECTION
3.5. Opinion
of Counsel. The Administrative Agent shall have received an
opinion, dated the date hereof and addressed to the Administrative Agent and all
Lenders, from counsel to the Account Party, in form and substance satisfactory
to the Administrative Agent.
SECTION
3.6. 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 date this Amendment becomes effective pursuant
to Article
III, that both before and after giving effect to this Amendment, all
statements set forth in clauses (a) and (b) of 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.
PPL
ENERGY SUPPLY, LLC
By:__________________________
Title: Vice
President and Treasurer
THE BANK
OF NOVA SCOTIA
By:__________________________
Title:
