Exhibit 10.15
EXECUTION COPY
AMENDMENT NO. 3 TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT dated as of September 28, 1999 to the Credit Agreement dated
as of December 19, 1997 (as amended and restated as of March 31, 1999 and as
further amended prior to the date hereof, the "CREDIT AGREEMENT") among THE AES
CORPORATION ("AES"), the BANKS party thereto, the FRONTING BANKS party thereto
and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "AGENT").
WITNESSETH:
WHEREAS, the parties hereto desire to amend the Credit Agreement as
provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS; 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. AMENDMENT TO DEFINITIONS. Section 1.01 of the Credit
Agreement is hereby amended by:
(a) deleting the definitions of "PERMITTED NEGATIVE PLEDGE" and
"SPECIFIED REVOLVER DEBT" appearing therein; and
(b) amending the definition of "PARENT OPERATING CASH FLOW"
contained therein in by:
(i) deleting the word "and" at the end of clause (2) thereof;
(ii)replacing the period at the end of clause (3) thereof with ";
and"; and
(iii)adding a new clause (4) at the end thereof, to read in its
entirety as follows:
"(4) no dividends, fees or payments made to the
Borrowers with the proceeds of
any amounts paid to AES or any of its
Subsidiaries in connection with the
$525,000,000 additional prepayment made by
Connecticut Light & Power ("CL&P") pursuant
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to the First Amendment to the Electricity
Purchase Agreement between CL&P and AES Thames,
Inc., or any amounts paid to AES or any of its
Subsidiaries in connection with any
monetization, sale or securitization of any
right to receive any such prepayment, shall be
included in Parent Operating Cash Flow, except
to the extent that such proceeds (x) have been
received by AES in cash in such period or an
earlier period and (y) are included in
Consolidated Net Income for such period.".
SECTION 3. AMENDMENT TO DEBT COVENANT. Section 5.07 of the Credit
Agreement is hereby amended by:
(a) amending clause (ix) of Saection 5.07(a) thereof to read in its
entirety as follows:
"(ix) surety bonds in respect of performance
obligations of AES and letters of credit, in an aggregate
principal amount at any time outstanding not to exceed
$400,000,000;"; and
(b) amending sections 5.07(b) and 5.07(c) to read in their entirety as
follows:
"(b) AES shall not issue any Additional Permitted Subordinated Debt
or Permitted Senior Unsecured 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 (but without increasing or decreasing
Parent Operating Cash Flow on account of acquisitions for periods prior to
such acquisitions), AES would have been in compliance with Section 5.16 and
(unless AES shall have received net cash proceeds of not less than
$500,000,000 from the issuance, after September 1, 1999 and on or before the
earlier of the date upon which such Additional Permitted Subordinated Debt or
Permitted Senior Unsecured Debt, as applicable, is issued and December 31,
1999, of its common stock to Persons other than Subsidiaries or affiliates of
AES) 5.15 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 (x)
such Additional Permitted Subordinated Debt or Permitted Senior Unsecured
Debt, as applicable, (and any other Debt or preferred stock of AES
outstanding on the date of issuance of such Additional Permitted Subordinated
Debt or Permitted Senior Unsecured Debt, as applicable, and issued after the
first day of the period of four consecutive fiscal quarters ended on such
last day) was issued and the proceeds applied on the first day of the period
of four consecutive fiscal quarters ended on such last day and (y) all Debt
and preferred stock of AES repaid or redeemed prior to or simultaneously with
the issuance of such
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Additional Permitted Subordinated Debt or Permitted Senior Unsecured Debt, as
applicable, was repaid or redeemed on the day prior to the first day of such
period).
(c) In addition to the Debt permitted by subsections (a) and (b) above,
AES shall be permitted to incur, assume, create and suffer to exist up to an
aggregate principal amount, not to exceed the sum of (1) $600,000,000 PLUS (2)an
amount equal to 50% of the aggregate net proceeds received by AES from issuances
and sales (other than sales to AES or any of its Subsidiaries or Affiliates) of
its common stock after September 1, 1999, of unsecured senior and/or
subordinated Debt issued and sold by way of (i) a registered public offering,
(ii) an offering made to qualified institutional buyers pursuant to Rule 144A
under the Securities Act and/or (iii) in the form of term loans from banks or
other institutional lenders or investors, in each case having 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 those included in existing outstanding public Debt of AES or
otherwise acceptable to the Required Banks (except that limitations on (I) the
ability of Subsidiaries and Affiliates of AES to guarantee other senior Debt of
AES, (II) the ability of AES to grant Liens on stock of Subsidiaries or
intercompany advances to secure other senior Debt of AES or (III) the ability of
Subsidiaries or Affiliates of AES to grant Liens on their assets (including
stock of Subsidiaries and intercompany advances) to secure guarantees of other
senior Debt of AES shall be permitted); PROVIDED that (A) both before and after
giving effect to such issuance no Default shall have occurred and be continuing,
(B) on a PRO FORMA basis after giving effect to such issuance and the
application of the proceeds thereof (but without increasing or decreasing Parent
Operating Cash Flow on account of acquisitions for periods prior to such
acquisitions) AES would have been in compliance with Section 5.16 and (unless
AES shall have received net cash proceeds of not less than $500,000,000 from the
issuance, after September 1, 1999 and on or before the earlier of the date upon
which such Debt is issued and December 31, 1999 of its common stock to Persons
other than Subsidiaries or affiliates of AES) 5.15 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 (x) such Debt (and any other Debt or
preferred stock of AES outstanding on the date of issuance of such Debt and
issued after the first day of the period of four consecutive fiscal quarters
ended on such last day) was issued and the proceeds applied on the first day of
the period of four consecutive fiscal quarters ended on such last day and (y)
all Debt and preferred stock of AES repaid or redeemed prior to or
simultaneously with the issuance of such Debt was repaid or redeemed on the day
prior to the first day of such period) and (C) such Debt (x) is not guaranteed
by any Subsidiary or Affiliate of AES and (y) does not require any scheduled
payment of principal prior to July 14, 2003.".
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SECTION 4. AMENDMENT TO NEGATIVE PLEDGE. Section 5.12(f) of the Credit
Agreement is hereby amended to read in its entirety as follows:
"(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses or clause (l) of this Section; PROVIDED that such Debt is not increased
and is not secured by any additional assets (other than, in the case of Debt
permitted under Section 5.07(a)(v), Liens on assets of any Subsidiary permitted
under such Section 5.07(a)(v) to be obligated on such Debt);".
SECTION 5. CASH FLOW COVERAGE COVENANT. Section 5.15 of the Credit
Agreement is hereby amended to read in its entirety as follows:
"SECTION 5.15. CASH FLOW COVERAGE. The Cash Flow
Coverage Ratio for any period of four consecutive fiscal
quarters of AES ending after the date hereof (including any
pro forma calculation under subsection (b) or (c) of Section
5.07 made by reference to such period) shall not be less than
(i) in the case of any period ending after December 31, 1998
and on or prior to March 31, 1999, 1.30 to 1.00, (ii) in the
case of any period ending after March 31, 1999 and on or prior
to September 30, 1999, 1.40 to 1.00, (iii) in the case of any
period ending after September 30, 1999 and on or prior to
September 30, 2000, 1.50 to 1.00 and (iv) in all other cases,
1.75 to 1.00."
SECTION 6. CASH FLOW TO TOTAL DEBT RATIO COVENANT. Section 5.16 of the
Credit Agreement is hereby amended to read in its entirety as follows:
"SECTION 5.16. CASH FLOW TO TOTAL DEBT RATIO. The
Cash Flow to Total Debt Ratio for any period ending on or
after March 31, 1998 shall not be less than (i) 0.10 to 1.00
at any time on or prior to December 31, 1999, (ii) 0.105 to
1.00 at any time after December 31, 1999 and on or prior to
Xxxxx 00, 0000, (xxx) 0.125 to 1.00 at any time after March
31, 2000 and on or prior to September 30, 2000 and (iv) 0.15
to 1.00 at any time thereafter."
SECTION 7. REPRESENTATIONS OF BORROWER. AES represents and warrants
that (i) the representations and warranties of AES 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 8. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 9. COUNTERPARTS. 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 10. EFFECTIVENESS. This Amendment shall become effective on the
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date (the "AMENDMENT EFFECTIVE DATE") upon which:
(a) the Agent shall have received from each of AES, each Guarantor,
each Fronting Bank and the Required Banks a 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; and
(b) the Agent shall have received, for the account of each Bank that
shall have executed and delivered this Amendment to the Agent at or prior to
2:00 p.m. (New York City time) on September 28, 1999 (the "APPROVAL DEADLINE"),
an amendment fee in an amount equal to (i) if such Bank shall have executed and
delivered this Amendment to the Agent at or prior to 12:00 noon (New York City
time) on September 21, 1999 ( the "EARLY APPROVAL TIME"), 0.20% and (ii) if such
Bank shall have executed and delivered this Amendment after the Early Approval
Time and at or prior to the Approval Deadline, 0.10%, in each case multiplied by
the amount of such Bank's Commitment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
THE AES CORPORATION
By:
--------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By:
--------------------------------
Name:
Title:
NATIONSBANK, N.A.
By:
--------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
--------------------------------
Name:
Title:
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BARCLAYS BANK PLC
By:
--------------------------------
Name:
Title:
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
By:
--------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
--------------------------------
Name:
Title:
BANKBOSTON, N.A.
By:
--------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
7
BANK ONE, N.A.(formerly known as THE
FIRST NATIONAL BANK OF
CHICAGO)
By:
--------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By:
--------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:
--------------------------------
Name:
Title:
SOCIETE GENERALE
By:
--------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK
BRANCH
By:
--------------------------------
Name:
Title:
0
XXXXXXXXXX XXXX- XXX
XXXXXXXXXXX XX,
XXX XXXX BRANCH
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By:
--------------------------------
Name:
Title:
CIBC INC.
By:
--------------------------------
Name:
Title:
COMMERZBANK AG, NEW YORK
BRANCH
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
9
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
CREDIT LOCAL DE FRANCE, NEW
YORK AGENCY
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
FIRST HAWAIIAN BANK
By:
--------------------------------
Name:
Title:
10
XXXXX BANK N.A.
By:
--------------------------------
Name:
Title:
THE SANWA BANK, LIMITED
NEW YORK BRANCH
By:
--------------------------------
Name:
Title:
SUNTRUST BANK, CENTRAL
FLORIDA, N.A.
By:
--------------------------------
Name:
Title:
ARAB BANK PLC
By:
--------------------------------
Name:
Title:
BARCLAYS BANK PLC, as Fronting Bank
By:
--------------------------------
Name:
Title:
00
XXXXX XXXX XX XXXXXXXXXX, N.A.,
as Fronting Bank
By:
--------------------------------
Name:
Title:
NATIONSBANK, N.A., as Fronting Bank
By:
--------------------------------
Name:
Title:
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED, as Fronting
Bank
By:
--------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Fronting
Bank
By:
--------------------------------
Name:
Title:
00
XXXXXX XXXXXXXX XXXXX
XXXXXXX XX XXX XXXX, as Agent
By:
--------------------------------
Name:
Title:
The undersigned Guarantors hereby
consent to the foregoing Amendment
No. 3 to Amended and Restated
Credit Agreement:
AES HAWAII MANAGEMENT
COMPANY, INC.
By:
----------------------------------
Name:
Title:
AES OKLAHOMA MANAGEMENT
CO., INC.
By:
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Name:
Title:
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