AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT AMENDMENT dated as of May 21, 1999 to the Credit Agreement dated as of December 19, 1997 (as amended and restated as of March 31, 1999, the "CREDIT AGREEMENT") among THE AES CORPORATION ("AES"),...
Exhibit 10.13
AMENDMENT NO. 1 TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT dated as of May 21, 1999 to the Credit Agreement dated as of
December 19, 1997 (as amended and restated as of March 31, 1999, 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 . 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 . AMENDMENT TO DEBT COVENANT. Section 5.07(c) of the Credit
Agreement is hereby amended to read in its entirety as follows:
"(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
$600,000,000 aggregate principal amount 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
but excluding limitations of the type referred to in clauses (C)(y)(I), (II) and
(III) below that are permitted under clause (C)(y) below) than those included in
existing outstanding public Debt of AES or otherwise acceptable to the Required
Banks; 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
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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 5.15
and 5.16 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
Debt (and any other Debt 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 (but
without increasing or decreasing Parent Operating Cash Flow on account of
acquisitions for periods prior to such acquisitions)), and (C) such Debt (x) is
not guaranteed by any Subsidiary or Affiliate of AES, (y) does not limit (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 (provided that (aa) a Permitted Negative Pledge shall not be
prohibited by this clause (y) and (bb) this clause (y) shall not apply if AES
shall have received at least $300,000,000 of gross cash proceeds from the
issuance of its common stock after March 1, 1999 and on or prior to June 30,
1999) and (z) does not require any scheduled payment of principal prior to July
14, 2003."
SECTION 3. 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 4. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 5. 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 6. EFFECTIVENESS. This Amendment shall become effective on the
date (the "AMENDMENT EFFECTIVE DATE") upon which the Agent shall have received
from each of AES, each Guarantor 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.
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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:
3
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:
4
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:
6
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:
7
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:
8
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Agent
By:
--------------------------------
Name:
Title:
The undersigned Guarantors hereby
consent to the foregoing Amendment
No. 1 to Amended and Restated
Credit Agreement:
AES HAWAII MANAGEMENT
COMPANY, INC.
By:
---------------------------------
Name:
Title:
AES OKLAHOMA MANAGEMENT
CO., INC.
By:
---------------------------------
Name:
Title:
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