Exhibit
10.1


 


EXECUTION
COPY


 


AMENDMENT
NO. 1 TO THIRD AMENDED AND RESTATED


CREDIT AND REIMBURSEMENT
AGREEMENT


 


Dated as of August 10,
2004


 


AMENDMENT NO.
1 TO THIRD AMENDED AND RESTATED CREDIT AND REIMBURSEMENT AGREEMENT (this “Amendment”) among The AES Corporation, a
Delaware corporation (the “Borrower”),
the Subsidiary Guarantors, the Bank Parties, CITICORP USA, INC., as
administrative agent (the “Agent”)
and CITIBANK, N.A., as Collateral Agent, for the Bank Parties (the “Collateral Agent”).  


 


PRELIMINARY
STATEMENTS


 


(1)           WHEREAS,
the Borrower is party to a Third Amended and Restated Credit and Reimbursement
Agreement dated as of March 17, 2004 (as amended, amended and restated,
supplemented or otherwise modified up to the date hereof, the “Credit Agreement”; capitalized terms used
herein but not defined shall be used herein as defined in the Credit Agreement)
among the Subsidiary Guarantors, the Bank Parties, CITIGROUP GLOBAL MARKETS,
INC., as Lead Arranger and Book Runner, BANC OF AMERICA SECURITIES LLC, as Lead
Arranger and Book Runner and as Co-Syndication Agent (for the Initial Term Loan
Facility), DEUTSCHE BANK SECURITIES INC., as Lead Arranger and Book Runner (for
the Initial Term Loan Facility), UNION BANK OF CALIFORNIA, N.A., as
Co-Syndication Agent (for the Initial Term Loan Facility) and as Lead Arranger
and Book Runner and as Syndication Agent (for the Revolving Credit Facility),  LEHMAN COMMERCIAL PAPER INC.,  as Co-Documentation Agent (for the Initial
Term Loan Facility), UBS SECURITIES LLC, as Co-Documentation Agent (for the
Initial Term Loan Facility), SOCIÉTÉ GÉNÉRALE, as Co-Documentation Agent (for
the Revolving Credit Facility), CREDIT LYONNAISE NEW YORK BRANCH, as
Co-Documentation Agent (for the Revolving Credit Facility), the Administrative
Agent and the Collateral Agent;


 


(2)           WHEREAS,
the Borrower has requested that the Bank Parties agree to amend the Credit
Agreement;


 


(3)           WHEREAS,
the Bank Parties have agreed, subject to the terms and conditions hereinafter
set forth, to amend the Credit Agreement in certain respects as set forth
below.


 


NOW, THEREFORE, in consideration of the premises and
for other good and valuable consideration, the sufficiency and receipt of all
of which is hereby acknowledged, the parties hereto hereby agree as follows:


 


SECTION 1.           Amendments to
the Credit Agreement.  The Credit
Agreement is, effective as of the date hereof and subject to the satisfaction
of the conditions precedent set forth in Section 2, hereby amended as
follows:


 





















 


(a)           Section 1.01 of the Credit Agreement
is hereby amended as follows:


 


(i)            The following definitions shall be added in alphabetical
order to read as follows:


 


“Amendment No. 1”
means Amendment No. 1 to this Agreement, dated as of August __, 2004, among the
Borrower, the Subsidiary Guarantors, the Bank Parties, the Agent and the
Collateral Agent.


 


“Initial Term Loan Amendment Effective Date”
means the date that Amendment No. 1 to this Agreement becomes effective in
accordance with Sections 2(a) and 2(c) of Amendment No. 1.


 


“Permitted Business”
means, with respect to any Person, (i) a line of business which is
substantially the same line of business as one or more of the principal
businesses of such Person and its Subsidiaries, (ii) a line of business which
is complementary or ancillary to, one or more of the principal businesses of
such Person and its Subsidiaries, (iii) any infrastructure business, (iv) any
public utility business and (v) the ownership, extraction, processing,
transportation, distribution and sales of fossil fuels and derivatives thereof,
but, in each case, excluding trading activities or hedging transactions, other
than (x) such activities conducted in the ordinary course of business, (y) such
activities conducted in a manner consistent with past practices and (z) such activities
or transactions intended to enhance the performance of physical assets.


 


(ii)           The definition of “Base Rate Margin” in
Section 1.01 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:


 


“Base Rate Margin”
means (i) in respect of the Revolving Credit Loans, a rate per annum equal to
1.50% (subject to the provisions of Section 2.06(f) hereof), (ii) in respect of
the Initial Term Loans, a rate per annum equal to 1.25% (subject to the
provisions of Section 2.06(f) hereof), and (iii) in respect of the Incremental
Term Loan Facility, a rate per annum to be agreed to by the Borrower, the Agent
and the Incremental Term Loan Banks.


 


(iii)          The definition of “Euro-Dollar Margin”
in Section 1.01 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:


 


“Euro-Dollar Margin”
means (i) in respect of the Revolving Credit Loans, a rate per annum equal to
2.50% (subject to the provisions of Section 2.06(f) hereof), (ii) respect of
the Initial Term Loans, a rate per annum equal to 2.25% (subject to the
provisions of Section 2.06(f) hereof) and (iii) in respect of the Incremental
Term Loan Facility, a rate per annum to be agreed to by the Borrower, the Agent
and the Incremental Term Loan Banks.


 


(iv)          The definition of “Revolving Letter of Credit Commission Rate” in Section 1.01 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:


 


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“Revolving Letter of
Credit Commission Rate” means a rate per annum equal to 2.50%.


 


(v)           The definition of “Termination Date” in
Section 1.01 of the Credit Agreement is hereby amended by amending and
restating clause (ii) therein to read as follows:


 


“(ii) the seventh anniversary
of the Initial Term Loan Amendment Effective Date, in the case of the Initial
Term Loan Facility (the “Initial Term Loan
Termination Date”) and”


 


(b)           Section 5.04 of the Credit Agreement
is hereby amended by amending and restating clause (a) therein in its entirety
to read as follows:


 


“(a) will continue, and will
cause each of AES BVI II, the Material AES Entities and the Pledged
Subsidiaries to continue, to engage in a Permitted Business;”


 


(c)           Section 5.13 of the Credit Agreement
is hereby amended by inserting the phrase “and thereafter” immediately after
the date “March 31, 2008” therein.


 


(d)           Section 5.14 of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:


 


“The Borrower will maintain at the end of each fiscal
quarter of the Borrower, a Recourse Debt to Cash Flow Ratio of not more than
the ratio set forth below for each period set forth below:


 




	
  Four Fiscal Quarter Ending

  	
   

  	
  Maximum
  Recourse Debt

  to Cash Flow Ratio

  
	
  December 31, 2003

  	
   

  	
  8.5

  
	
  March 31, 2004

  	
   

  	
  8.5

  
	
  June 30, 2004

  	
   

  	
  8.5

  
	
  September 30, 2004

  	
   

  	
  8.5

  
	
  December 31, 2004

  	
   

  	
  8.5

  
	
  March 31,2005

  	
   

  	
  8.35

  
	
  June 30, 2005

  	
   

  	
  8.25

  
	
  September 30, 2005

  	
   

  	
  8.15

  
	
  December 31, 2005

  	
   

  	
  8.00

  
	
  March 31, 2006

  	
   

  	
  7.90

  
	
  June 30, 2006

  	
   

  	
  7.85

  
	
  September 30, 2006

  	
   

  	
  7.80

  
	
  December 31, 2006

  	
   

  	
  7.75

  
	
  March 31, 2007

  	
   

  	
  7.70

  
	
  June 30, 2007

  	
   

  	
  7.65

  
	
  September 30, 2007

  	
   

  	
  7.60

  
	
  December 31, 2007

  	
   

  	
  7.55

  
	
  March 31, 2008

  	
   

  	
  7.50

  
	
  June 30, 2008

  	
   

  	
  7.50

  






 


3





















 




	
  September 30, 2008

  	
   

  	
  7.50

  
	
  December 31, 2008

  	
   

  	
  7.25

  
	
  March 31, 2009

  	
   

  	
  7.25

  
	
  June 30, 2009

  	
   

  	
  7.25

  
	
  September 30, 2009

  	
   

  	
  7.25

  
	
  December 31, 2009

  	
   

  	
  7.00

  
	
  March 31, 2010

  	
   

  	
  7.00

  
	
  June 30, 2010

  	
   

  	
  7.00

  
	
  September 30, 2010

  	
   

  	
  7.00

  
	
  December 31, 2010

  	
   

  	
  6.50

  
	
  March 31, 2011

  	
   

  	
  6.50

  
	
  June 30, 2011 and
  thereafter

  	
   

  	
  6.25

  






 


(e)           Section 5.16(a)(x) of the Credit Agreement
is hereby amended by amending and restating clause (B) therein in its entirety
to read as follows:


 


“(B) such Investment shall be in property and assets,
or in the Equity Interests of a Person owning property and assets, which are
part of a Permitted Business; and”


 


(f)            Section 5.18 of the Credit Agreement
is hereby amended by adding at the end of clause (iii) therein the following
proviso to read as follows:


 


“; provided,
further, however, that for the avoidance of doubt,
the transfer of AES GEH Holdings, LLC’s ownership interest in Global Energy
Holdings CV to AES GEH, Inc. and the subsequent dissolution of AES GEH
Holdings, LLC is permitted hereunder;”


 


SECTION 2.           Conditions to
Effectiveness.


 


(a)           Except to the extent set forth in
Sections 2(b) and (c) below, this Amendment shall become
effective when, and only when, and as of the date (the “Amendment
No. 1 Effective Date”) on which the
Agent shall have received counterparts of this Amendment executed by the
Borrower and each of the Subsidiary Guarantors and the Required Banks or, as to
any of the Required Banks, advice satisfactory to the Agent that such Bank
Party has executed this Amendment and (i) when, and only when, the Agent shall
have additionally received a certificate signed by a duly
authorized officer of the Borrower dated the Amendment No. 1 Effective Date, to
the effect that, after giving effect to this Amendment: (x) the
representations and warranties contained in each of the Financing Documents are
true and correct in all material respects on and as of the Amendment No. 1
Effective Date as though made on and as of such date (unless stated to relate
solely to an earlier date, in which case such representations and warranties
are true and correct in all material respects as of such earlier date); and
(y) no Default has occurred and is continuing, (ii) the Agent shall have received a
favorable opinion of the Assistant General Counsel of the Borrower regarding
the due authorization, execution and delivery of this Amendment and other
matters reasonably requested by the Agent and (iii) the Agent shall have received all fees due and payable
in connection with this Amendment and the


 


4





















 


Agent
shall have received payment of all accrued fees and expenses of the Agent
(including the reasonable and accrued fees of counsel to the Agent invoiced on
or prior to the date hereof).


 


(b)           Section 1(a)(iv) and, solely to the
extent relating to Revolving Credit Loans, Sections 1(a)(ii) and 1(a)(iii) of
this Amendment shall become effective (i) when,
and only when, and as of the date (the “Revolver
Pricing Effective Date”) on which the
Agent shall have received counterparts of this Amendment executed by the
Borrower and each of the Subsidiary Guarantors and all of the Revolving Credit
Loan Banks or, as to any of the Revolving Credit Loan Banks, advice
satisfactory to the Agent that such Bank Party has executed this Amendment,
(ii) the Revolving Credit Loan Banks shall have received all fees due and
payable in connection with this Amendment and (iii) the Agent shall have
received a certificate signed by a duly authorized officer of the
Borrower dated the Revolver Pricing Effective Date, to the effect that, after
giving effect to this Amendment: (x) the representations and warranties
contained in each of the Financing Documents are true and correct in all
material respects on and as of the Revolver Pricing Effective Date as though
made on and as of such date (unless stated to relate solely to an earlier date,
in which case such representations and warranties are true and correct in all
material respects as of such earlier date); and (y) no Default has
occurred and is continuing.


 


(c)           The first two definitions in Section 1(a)(i), Section
1(a)(v), Sections 1(c) and 1(d), and, solely to the extent relating to the
Initial Term Loans, Sections 1(a)(ii) and 1(a)(iii) of this Amendment shall
become effective (i) when, and only when, and as of the date (the “Initial Term Loan Amendment Effective Date”) on which the Agent shall have received counterparts of this
Amendment executed by the Borrower and each of the Subsidiary Guarantors and
all of the Initial Term Loan Banks or, as to any of the Initial Term Loan
Banks, advice satisfactory to the Agent that such Bank Party has executed this
Amendment and (ii) the Agent shall have received a
certificate signed by a duly authorized officer of the Borrower dated the
Initial Term Loan Amendment Effective Date, to the effect that, after giving
effect to this Amendment: (x) the representations and warranties contained
in each of the Financing Documents are true and correct in all material
respects on and as of the Initial Term Loan Amendment Effective Date as though
made on and as of such date (unless stated to relate solely to an earlier date,
in which case such representations and warranties are true and correct in all
material respects as of such earlier date); and (y) no Default has
occurred and is continuing.


 


This Amendment is subject to the provisions of Section
10.05 of the Credit Agreement.


 


SECTION 3.           Representations
and Warranties.  The
Borrower represents and warrants as follows:


 


(a)           The representations and warranties
contained in each of the Financing Documents are correct in all material
respects on and as of the date of this Amendment, as though made on and as of
such date (unless stated to relate solely to an earlier date, in which case
such representations and warranties are true and correct in all material
respects as of such earlier date).


 


(b)           No
Default has occurred and is continuing on the date hereof.


 


5





















 


SECTION 4.           Reference to and
Effect on the Financing Documents. 
(a) On and after the Amendment No. 1 Effective Date, the Revolver
Pricing Effective Date or the Initial Term Loan Amendment Effective Date, as
applicable, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit
Agreement, and each reference in the Notes and each of the other Financing
Documents to “the 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 and
otherwise modified hereby.


 


(b)           The Credit Agreement, the Notes and
each of the other Financing Documents, as specifically amended by this
Amendment, are and shall continue to be in full force and effect and are hereby
in all respects ratified and confirmed. 
Without limiting the generality of the foregoing, the Collateral
Documents and all of the Collateral described therein do and shall continue to
secure the payment of all Obligations of the Loan Parties under the Financing
Documents, in each case as amended by this Amendment.


 


(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 Credit Agreement or
the other Financing Documents, nor constitute a waiver of any provision of the
Credit Agreement or the other Financing Documents.


 


SECTION 5.           Affirmation of
Subsidiary Guarantors.  Each
Subsidiary Guarantor hereby consents to the amendments to the
Credit Agreement effected hereby, and hereby confirms and
agrees that, notwithstanding the effectiveness of this Amendment, the obligations
of such Subsidiary Guarantor contained in Article IX of the Credit Agreement,
as amended hereby, or in any other Financing Documents to which it is a party
are, and shall remain, in full force and effect and are hereby ratified and
confirmed in all respects, except that, on and after the effectiveness of this
Amendment, each reference in Article IX of the Credit Agreement and in each of
the other Financing Documents to “the
Agreement”, “thereunder”,
“thereof” or words of like import
shall mean and be a reference to the Credit Agreement, as amended by this
Amendment.  Without limiting the
generality of the foregoing, the Collateral Documents to which such Subsidiary
Guarantor is a party and all of the Collateral described therein do, and shall
continue to secure, payment of all of the Secured Obligations (in each case, as
defined therein).


 


SECTION 6.           GOVERNING LAW.  THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 7.           WAIVER OF JURY
TRIAL.  EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AMENDMENT OR THE ACTIONS OF THE COLLATERAL TRUSTEES OR THE AGENT IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.


 


6





















 


SECTION 8.           Execution in
Counterparts.  This Amendment
may be executed by one or more of the parties to this Amendment on any number
of separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.


 


SECTION 9.           Costs and
Expenses.  The Borrower hereby agrees to pay all
reasonable costs and expenses associated with the preparation, execution,
delivery, administration, and enforcement of this Amendment, including, without
limitation, the fees and expenses of the Collateral Trustees’ and the Agent’s
counsel and other out-of-pocket expenses related hereto.  Delivery of an executed counterpart of a
signature page to this Amendment by telecopier shall
be effective as delivery of a manually executed counterpart of this Amendment.


 


7





















 


IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed and delivered by
their respective proper and duly authorized officers as of the day and year
first above written.


 


 


	
  THE AES CORPORATION,

  	
   

  
	
  as Borrower

  	
   

  
	
   

  	
   

  
	
  By

  	
  /s/ Barry J. Sharp

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
  Address:

  	
  1001 North 19th Street

  	
   

  
	
   

  	
  Arlington, VA 22209

  	
   

  
	
  Fax:

  	
  (703) 528-4510

  	
   

  
					



 





















 


	
  SUBSIDIARY
  GUARANTORS:

  	
   

  
	
   

  	
   

  
	
  AES HAWAII MANAGEMENT
  COMPANY, INC.,

  	
   

  
	
  as Subsidiary Guarantor

  	
   

  
	
   

  	
   

  
	
  By 

  	
  Willard C. Hoagland, III

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  AES NEW YORK FUNDING,
  L.L.C.,

  	
   

  
	
  as Subsidiary Guarantor

  	
   

  
	
   

  	
   

  
	
  By

  	
  Willard C. Hoagland,
  III

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
  Fax:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  AES OKLAHOMA HOLDINGS,
  L.L.C.,

  	
   

  
	
  as Subsidiary Guarantor

  	
   

  
	
   

  	
   

  
	
  By

  	
  Willard C. Hoagland,
  III

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
  Fax:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  AES WARRIOR RUN
  FUNDING, L.L.C.,

  	
   

  
	
  as Subsidiary Guarantor

  	
   

  
	
   

  	
   

  
	
  By

  	
   Willard C. Hoagland, III

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
  Fax:

  	
   

  
					



 





















 


AGENTS:


 


	
  CITICORP USA, INC.,

  	 

	
  as Agent

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  By 

  	
  /s/ Stuart Glen

  	
   

  	 

	
   

  	
  Title:

  	
   

  	 

	
   

  	
  Address:

  	
  388 Greenwich Street,
  21st Floor

  	 

	
   

  	
   

  	
  New York, NY 10013

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
  Fax:

  	
  (212) 816-8098

  	 

	
   

  	
  Attention:

  	
  Stuart Glen

  	 

	
   

  	
  Email:

  	
  oploanswebadmin@citigroup.com

  	 

	
   

  
	
   

  
	
  CITIBANK N.A.,

  
	
  as Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   /s/ Stuart Glen

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Address:

  	
  388 Greenwich Street,
  21st Floor

  
	
   

  	
   

  	
  New York, NY 10013

  
	
   

  	
   

  	
   

  
	
   

  	
  Fax:

  	
  (212) 816-8098

  
	
   

  	
  Attention:

  	
  Stuart Glen