Exhibit 10.25b
AMENDMENT NO. 1 AND WAIVER
TO
CREDIT AGREEMENT
This AMENDMENT NO. 1 AND WAIVER, dated as of August 31, 2001 (this
"Amendment"), is made by and among AES EASTERN ENERGY, L.P., a Delaware limited
partnership (the "Borrower"), and the banks listed on the signature pages of
this Amendment as "Banks" (together with their respective successors and
permitted assignees from time to time, the "Banks").
PRELIMINARY STATEMENT:
The Borrower, the Banks, and Union Bank of California, N.A., as Agent and
Issuing Bank, previously entered into that certain Credit Agreement, dated as of
April 10, 2001 (the "Existing Agreement", as amended by this Amendment, the
"Amended Agreement", and as the Amended Agreement may hereafter be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
The Borrower now wishes to amend the Existing Agreement in certain particulars.
In addition, the Borrower has requested the Banks to waive an Event of Default
that has occurred as the result of a breach of Section 6.01(a) of the Existing
Agreement. The Banks have agreed to such amendments and waiver, on the terms and
conditions set forth herein. The parties therefore agree as follows (capitalized
terms used but not defined herein having the meanings assigned such terms in the
Existing Agreement):
SECTION 1. Amendments to Existing Agreement. The Existing Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 3 hereof, hereby amended as follows:
(a) Tangible Net Worth Definition. The definition of "Tangible Net Worth"
contained in Section 1.01 is hereby amended in its entirety to read as follows:
"Tangible Net Worth" means, with respect to any Person, the excess of
such Person's consolidated assets over its consolidated liabilities,
consolidated assets and consolidated liabilities each to be determined in
accordance with GAAP consistently applied, excluding, however, from the
determination of consolidated assets (i) goodwill, organizational expenses,
research and development expenses, trademarks, trade names, copyrights,
patents, patent
applications, licenses and rights in any thereof, and other similar
intangibles, (ii) cash held in a sinking or other analogous fund
established for the purpose of redemption, retirement or prepayment of
capital stock or Indebtedness, and (iii) any items not included in clause
(i) or (ii) above that are treated as intangibles in conformity with GAAP,
and further excluding, however, from the determination of consolidated
assets and consolidated liabilities any items that, when recognized by the
Borrower, resulted in a corresponding increase or decrease (as the case may
be) in the Borrower's "Accumulated Other Comprehensive Income"; provided,
however, that any such item shall cease to be excluded from such
determination if and to the extent that such corresponding increase or
decrease (as the case may be) in the Borrower's "Accumulated Other
Comprehensive Income" is reversed and the Borrower realizes an actual gain
or loss as a result thereof.
(b) Tangible Net Worth Covenant. Section 6.01(a) is hereby amended by
deleting the amount "$395,000,000" in its entirety and substituting therefor the
new amount "$160,000,000".
SECTION 2. Waiver of Event of Default. The Banks hereby waive the Event of
Default that occurred prior to the date hereof as a result of the breach by the
Borrower of Section 6.01(a) of the Existing Agreement. For the avoidance of
doubt, such waiver shall not apply to any breach by the Borrower on or after the
date hereof of Section 6.01(a) of the Amended Agreement.
SECTION 3. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written when, and only when, the Agent
shall have received: (a) counterparts of this Amendment executed by the Borrower
and the Required Banks (in sufficient quantity for each party to have a fully
executed original), and (b) the consent of AES, substantially in the form of
Exhibit A hereto, duly executed by an authorized officer of AES. This Amendment
is subject to the provisions of Section 11.06 of the Credit Agreement.
SECTION 4. Representations and Warranties. The Borrower hereby represents
and warrants that (a) each Loan Document Representation and Warranty is true and
correct on and as of such date, before and after giving effect to this
Amendment, as though made on and as of such date (with each reference in the
Loan Documents to the Existing Agreement being deemed to be a reference to this
Amendment and the Amended Agreement), and (b) after giving effect to the waiver
set forth in Section 2 of this Amendment, no Default has occurred and is
continuing.
SECTION 5. Reference to and Effect on the Existing Agreement. (a) Upon the
effectiveness of this Amendment: (i) each reference in the Existing Agreement to
"this Agreement", "hereunder", "hereof" or words of like import referring to the
Existing Agreement shall mean and be a reference to the Amended
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Agreement; and (ii) each reference in any other Loan Document to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Existing Agreement shall mean and be a reference to the Amended Agreement. The
parties hereto agree and acknowledge that this Amendment constitutes a Loan
Document.
(b) Except as specifically amended above, the Existing Agreement shall
continue to be in full force and effect and is hereby in all respects ratified
and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of the Banks, the Issuing Banks or the Agent under the Existing Agreement
or any other Loan Document, nor constitute a waiver of any provision of the
Existing Agreement or any other Loan Document.
SECTION 6. Costs and Expenses. The Borrower agrees to pay on demand all
reasonable costs and expenses of the Agent in connection with the preparation,
negotiation, execution and delivery of this Amendment and the other instruments
and documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel to the Agent with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities hereunder and thereunder, and all costs and expenses of the
Agent and each Bank (including, without limitation, reasonable fees and expenses
of counsel to the Agent and counsel for each Bank) in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Amendment.
SECTION 7. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument. In furtherance of the foregoing, it is understood and agreed that
signatures hereto submitted by facsimile transmission shall be deemed to be, and
shall constitute, original signatures.
SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of the New York.
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IN WITNESS WHEREOF, the parties hereto have caused Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
AES EASTERN ENERGY, L.P.
By: AES NY, L.L.C., its general partner
By_____________________________
Name:
Title:
Banks
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UNION BANK OF CALIFORNIA, N.A.
By______________________________
Name:
Title:
BAYERISCHE HYPO- UND VEREINSBANK AG,
NEW YORK BRANCH
By______________________________
Name:
Title:
THE SANWA BANK LIMITED
By______________________________
Name:
Title:
EXHIBIT A
CONSENT
The undersigned, as Guarantor under that certain Limited Guaranty, dated as
of April 10, 2001 (the "Guaranty"), in favor of the Banks, the Issuing Banks and
the Agent, (i) hereby consents to Amendment No. 1 and Waiver, dated as of August
31, 2001, to the Credit Agreement, dated as of April 10, 2001 (the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among AES Eastern Energy, L.P., the Banks and Issuing Banks party thereto, and
Union Bank of California, N.A., as Agent, and (ii) hereby confirms and agrees
that the Guaranty is, and shall continue to be, in full force and effect and is
hereby confirmed and ratified in all respects except that, on and after the
effective date of said Amendment No. 1 and Waiver, each reference in the
Guaranty to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement, as amended by said Amendment No. 1 and Waiver.
August ___, 2001 THE AES CORPORATION
By___________________________
Name:
Title:
