SECOND AMENDMENT
Exhibit
10.5
SECOND
AMENDMENT
THIS
SECOND AMENDMENT (this
“Amendment”) dated as of November 2, 2007 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 Fall Maturity
Credit Agreement dated as of May 17, 2006 (as amended as of November 2, 2006,
and as further amended, modified and supplemented 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 Borrower has requested
certain modifications to the Credit Agreement and the Lenders 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
definition of “Maturity Date” in Section 1.01 of the Credit Agreement is amended
to read as follows:
“Maturity
Date” means November 10, 2008.
3. Conditions
Precedent. This Amendment shall become effective as of November
11, 2007 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. 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.
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 10.14 Governing Law: Jurisdiction: Etc. and not by Section 7,
Governing Law, of this Amendment.
[Signature
Page Follows]
IN
WITNESS WHEREOF, each of the parties
hereto has caused a counterpart of this Second Amendment to Fall Maturity Credit
Agreement to be duly executed and delivered as of the date first above
written.
BORROWER: TENNESSEE
VALLEY AUTHORITY
By: /s/ Xxxx
X.
Xxxxxxx
Name: Xxxx
X. Xxxxxxx
Title: Senior
Vice President and Treasurer
ADMINISTRATIVE
AGENT: BANK
OF AMERICA, N.A., as Administrative Agent
By: /s/ Xxxx
X.
Xxxx
Name: Xxxx
X. Xxxx
Title: Senior
Vice President
LENDER: BANK
OF AMERICA, N.A., as a Lender
By: /s/ Xxxx
X.
Xxxx
Name: Xxxx
X. Xxxx
Title: Senior
Vice President
