Document

EXHIBIT 10.77


AMENDMENT NO. 1 TO
RECEIVABLES FINANCING AGREEMENT








This AMENDMENT NO. 1 TO RECEIVABLES FINANCING AGREEMENT, dated as of January 14, 2021 (this “Amendment”), among PG&E AR Facility, LLC, a Delaware limited liability company (the “Borrower”), Pacific Gas and Electric Company, a California corporation (“PG&E”), as initial Servicer (in such capacity, the “Servicer”) and as retention holder (in such capacity, the “Retention Holder”), JPMorgan Chase Bank, N.A. (“JPM”), as a Committed Lender and as a Group Agent, Jupiter Securitization Company LLC (“Jupiter”), as a Conduit Lender, Mizuho Bank, Ltd. (“Mizuho”), as a Committed Lender and as a Group Agent, BNP Paribas (“BNP”), as a Committed Lender and as a Group Agent, Starbird Funding Corporation (“Starbird”), as a Conduit Lender, Victory Receivables Corporation (“Victory”), as a Conduit Lender, and MUFG Bank, Ltd. (“MUFG”), as a Committed Lender, as a Group Agent and as Administrative Agent.


W I T N E S S E T H:


WHEREAS, the parties hereto have heretofore entered into that certain Receivables Financing Agreement, dated as of October 5, 2020 (as amended, restated, supplemented, assigned or otherwise modified from time to time, the “Agreement”);


WHEREAS, concurrently herewith, the Borrower, as buyer (in such capacity, the “Buyer”), the Servicer, PG&E, as an originator, the Administrative Agent and the Lenders and Group Agents party thereto are entering into that certain Amendment No. 1 to Purchase and Sale Agreement, dated as of the date hereof (the “PSA Amendment”);


WHEREAS, concurrently herewith, the Buyer and PG&E, as holder, are entering into that certain Amended and Restated Subordinated Note, dated as of the date hereof and acknowledged and agreed to by the Administrative Agent (the “A&R Subordinated Note”); and


WHEREAS, the parties hereto seek to modify the Agreement upon the terms hereof.


NOW, THEREFORE, in exchange for good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged and confirmed), each of the parties hereto agree as follows:


A G R E E M E N T:


1.Definitions.  Unless otherwise defined or provided herein, capitalized terms used herein have the meanings attributed thereto in (or by reference in) Section 1.01 of the Agreement.


2.Amendments to the Agreement. Effective as of the date hereof, the Agreement is hereby amended as follows:


a.The defined term “Adjusted LIBOR” and definition thereof set forth in Section 1.01 of the Agreement are deleted in their entirety and all other occurrences of the term “Adjusted LIBOR” in the Agreement are replaced with the term “LMIR”.


b.The definition of “Interest Rate” set forth in Section 1.01 of the Agreement is amended and restated in its entirety to read as follows:


“Interest Rate” means, for any day in any Interest Period for any Loan (or any portion of Capital thereof):


(a)          if such Loan (or such portion of Capital thereof) is being funded by a Conduit Lender on such day through the issuance of Notes, the applicable CP Rate; or 










(b)          if such Loan (or such portion of Capital thereof) is being funded by any Lender on such day other than through the issuance of Notes (including, without limitation, if a Conduit Lender is then funding such Loan (or such portion of Capital thereof) under a Program Support Agreement, or if a Committed Lender is then funding such Loan (or such portion of Capital thereof)), LMIR;


provided, however, that the “Interest Rate” for each Loan and any day while an Event of Default or a Termination Event has occurred and is continuing shall be an interest rate per annum equal to the sum of 3.00% per annum plus the greater of (i) the interest rate per annum determined for such Loan and such day pursuant to clause (a) or (b) above, as applicable, and (ii) the Base Rate in effect on such day; provided, further, that no provision of this Agreement shall require the payment or permit the collection of Interest in excess of the maximum permitted by Applicable Law; provided, further, however, that Interest for any Loan shall not be considered paid by any distribution to the extent that at any time all or a portion of such distribution is rescinded or must otherwise be returned for any reason.


c.The defined term “LIBOR Loan” and definition thereof set forth in Section 1.01 of the Agreement are deleted in their entirety.


d.The following new defined term and definition thereof is added to Section 1.01 of the Agreement in appropriate alphabetical order:


“LMIR” means for any day during any Interest Period (a) with respect to any Group, the interest rate per annum for a period of time comparable to such Interest Period equal to the ICE Benchmark Administration Limited (or the successor thereto if it is no longer making such rates available) LIBOR Rate (“ICE LIBOR”), as published by Reuters (currently Reuters LIBOR01 page) (or any other commercially available source providing quotations of ICE LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m. (London, England time) for deposits in U.S. Dollars on such day, or if such day is not a Business Day, on the immediately preceding Business Day, or (b) if a rate cannot be determined under the foregoing clause, an annual rate equal to the average (rounded upwards if necessary to the nearest 1/100th of 1%) of the rates per annum at which deposits in U.S. Dollars with a duration comparable to such Interest Period in a principal amount substantially equal to the principal amount of the applicable Portion of Capital to be funded at LMIR on such day are offered to the principal London office of the applicable Group Agent (or its related Committed Lender) by three London banks, selected by Administrative Agent in good faith, at about 11:00 a.m. (London, England time) on such day, or if such day is not a Business Day, on the immediately preceding Business Day; provided, however, that if LMIR, determined as provided above, would be less than zero, LMIR shall for all purposes of this Agreement be zero.


e.Section 7.02(d) of the Agreement is amended by deleting the word “Borrower’s” where it appears therein and replacing it with the word “Servicer’s”.


3.Conditions to Effectiveness.  This Amendment shall be effective as of the date hereof, upon receipt by the Administrative Agent of executed counterparts of (a) this Amendment, (b) the PSA Amendment and (c) the A&R Subordinated Note, in each case, duly executed by each of the parties hereto or thereto.


4.Certain Representations and Warranties.  Each of the Servicer, the Retention Holder and the Borrower represents and warrants to each Credit Party as of the date hereof, as follows:


a.Representations and Warranties.  Both before and immediately after giving effect to this Amendment and the transactions contemplated hereby, all of its respective representations and warranties contained in the Agreement (other than the representations and warranties set forth in Sections 6.01(f)(ii) and (l) of the Agreement and in Sections 6.02(f)(ii), (m)(i), (m)(ii) and (p) of the Agreement) and each other Transaction Document to which it is a party that (x) do not contain a materiality qualification are true and correct in all material respects on and as of the date hereof, and (y) contains a materiality qualification are true and correct on and as of the date hereof (or, to the extent such representations and warranties 








specifically relate to an earlier date, such representations and warranties were true and correct in all material respects, or true and correct, as the case maybe, as of such earlier date).


b.Power and Authority; Due Authorization. That it has all necessary corporate power, limited liability company power, and authority (as applicable) to (i) execute and deliver this Amendment and the transactions contemplated hereby and (ii) perform its obligations under this Amendment, the Agreement (as amended hereby) and each of the other Transaction Documents to which it is a party and the execution, delivery and performance of, and the consummation of the transactions provided for in, this Amendment, the Agreement and the other Transaction Documents to which it is a party have been duly authorized by all necessary corporate or limited liability company action, as applicable.


c.Binding Obligations.  This Amendment, the Agreement (as amended hereby) and each of the other Transaction Documents to which it is a party constitute the legal, valid and binding obligations of the Borrower, the Servicer and the Retention Holder, as applicable, enforceable against the Borrower, the Servicer or the Retention Holder, as applicable, in accordance with their respective terms, except as enforceability may be limited by (x) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law) and (y) applicable Requirements of Law (including the approval of the CPUC) prior to foreclosure or other exercise of remedies hereunder or under the Transaction Documents.


d.No Event of Default or Termination Events.  No Event of Default, Unmatured Event of Default, Termination Event or Unmatured Termination Event has occurred and is continuing, and no Event of Default, Unmatured Event of Default, Termination Event or Unmatured Termination Event would result from this Amendment or the transactions contemplated hereby.


5.Reference to and Effect on the Agreement and the Other Transaction Documents.


a.From and after the effectiveness of this Amendment, each reference in the Agreement to “this Agreement”, “hereof”, “herein”, “hereunder” or words of like import, and each reference in each of the other Transaction Documents to the “Receivables Financing Agreement”, “thereunder”, “thereof” or words of like import, in each case referring to the Agreement, shall mean and be, a reference to the Agreement, as amended hereby.


b.The Agreement (except as specifically amended herein) and the other Transaction Documents are hereby ratified and confirmed in all respects by each of the parties hereto and shall remain in full force and effect in accordance with its respective terms.


c.The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of or amendment to, any right, power or remedy of the Administrative Agent or any other Credit Party under, nor constitute a waiver of or amendment to, any other provision or condition under, the Agreement or any other Transaction Document.


6.Costs and Expenses.  The Borrower agrees to pay on demand all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent and the other Credit Parties in connection with the preparation, negotiation, execution and delivery of this Amendment and the transactions contemplated hereby.


7.GOVERNING LAW.  THIS AMENDMENT, INCLUDING THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAWS PROVISIONS THEREOF).


8.Transaction Documents.  This Amendment is a Transaction Document executed pursuant to the Agreement and shall be construed, administered and applied in accordance with the terms and provisions thereof.










9.Integration.  This Amendment, the Agreement and the other Transaction Documents contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings.  


10.Severability.  Any provisions of this Amendment which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.


11.Counterparts.  This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement.  Delivery of an executed signature page of this Amendment by facsimile transmission, emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of an original executed counterpart hereof or any other electronic means as provided in the immediately following sentence. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.


12.Mutual Negotiations.  This Amendment is the product of mutual negotiations by the parties hereto and their counsel, and no party shall be deemed the draftsperson of this Amendment or any provision hereof or to have provided the same.  Accordingly, in the event of any inconsistency or ambiguity of any provision of this Amendment, such inconsistency or ambiguity shall not be interpreted against any party because of such party’s involvement in the drafting thereof.


13.Headings.  The captions and headings of this Amendment are included herein for convenience of reference only and shall not affect the interpretation of this Amendment.


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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.




															
			PG&E AR FACILITY, LLC,
			
					
			By:	/s/ MARGARET BECKER
			Name:	Margaret Becker
			Title:	Vice President and Treasurer






															
			PACIFIC GAS AND ELECTRIC COMPANY
			as Holder
					
			By:	/s/ DAVID S. THOMASON
			Name:	David S. Thomason
			Title:	Vice President, Chief Financial Officer and Controller














															
			MUFG BANK, LTD.,
			as Administrative Agent
					
			By:	/s/ ERIC WILLIAMS
			Name:	Eric Williams
			Title:	Managing Director






															
			MUFG BANK, LTD.,
			as Group Agent for the MUFG Group
					
			By:	/s/ ERIC WILLIAMS
			Name:	Eric Williams
			Title:	Managing Director






															
			MUFG BANK, LTD.,
			as a Committed Lender
					
			By:	/s/ ERIC WILLIAMS
			Name:	Eric Williams
			Title:	Managing Director






															
			VICTORY RECEIVABLES CORPORATION,
			as a Conduit Lender
					
			By:	/s/ KEVIN J. CORRIGAN
			Name:	Kevin J. Corrigan
			Title:	Vice President


















															
			MIZUHO BANK, LTD.,
			as Group Agent for the Mizuho Group
					
			By:	/s/ RICHARD A. BURKE
			Name:	Richard A. Burke
			Title:	Managing Director






															
			MIZUHO BANK, LTD.,
			as a Committed Lender
					
			By:	/s/ RICHARD A. BURKE
			Name:	Richard A. Burke
			Title:	Managing Director














															
			BNP PARIBAS,
			as a Group Agent for the BNP Group
					
			By:	/s/ ADVAIT JOSHI
			Name:	Advait Joshi
			Title:	Director
					
			By:	/s/ CHRIS FUKUOKA
			Name:	Chris Fukuoka
			Title:	Vice President






															
			BNP PARIBAS,
			as a Committed Lender
					
			By:	/s/ ADVAIT JOSHI
			Name:	Advait Joshi
			Title:	Director
					
			By:	/s/ CHRIS FUKUOKA
			Name:	Chris Fukuoka
			Title:	Vice President






															
			STARBIRD FUNDING CORPORATION,
			as a Conduit Lender
					
			By:	/s/ DAVID V. DEANGELIS
			Name:	David V. DeAngelis
			Title:	Vice President










															
			JPMORGAN CHASE BANK, N.A.,
			as Group Agent for the JPM Group
					
			By:	/s/ MARQUIS GILMORE
			Name:	Marquis Gilmore
			Title:	Managing Director






															
			JPMORGAN CHASE BANK, N.A.,
			as a Committed Lender
					
			By:	/s/ MARQUIS GILMORE
			Name:	Marquis Gilmore
			Title:	Managing Director






															
			JUPITER SECURITIZATION COMPANY LLC,
			as a Conduit Lender
					
			By:	/s/ MARQUIS GILMORE
			Name:	Marquis Gilmore
			Title:	Managing Director