EXHIBIT 10.1


 


Execution Copy


 


AMENDMENT NO. 3 TO THE FIFTH AMENDED AND RESTATED


CREDIT AND REIMBURSEMENT AGREEMENT


 


Dated as of July 26,  2013


 


AMENDMENT NO. 3 TO THE FIFTH AMENDED AND RESTATED CREDIT AND REIMBURSEMENT AGREEMENT (this “Amendment”) among The AES Corporation, a Delaware corporation (the “Borrower”), the Subsidiary Guarantors listed on the signature pages hereof, the Bank Parties listed on the signature pages hereto, 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 Fifth Amended and Restated Credit and Reimbursement Agreement dated as of July 29, 2010 (as amended, amended and restated, supplemented or otherwise modified up to the date hereof, the “Existing Bank Credit Agreement”; capitalized terms used herein but not defined shall be used herein as defined in the Credit Agreement) among the Subsidiary Guarantors named therein, Citicorp USA, Inc., as Administrative Agent and the other Bank Parties, agents and arrangers party thereto;


 


(2)           WHEREAS, the Borrower, each Departing Revolving Credit Loan Bank (as defined in the Credit Agreement) and each Revolving Credit Loan Bank have agreed, subject to the terms and conditions hereinafter set forth, to amend and restate the Existing Bank Credit Agreement as set forth below (as amended and restated the “Credit Agreement”); and


 


(3)           WHEREAS, certain of the Banks have agreed to increase their Revolving Credit Loan Commitments and other have elected to reduce their Revolving Credit Loan Commitments, which will result in the Revolving Credit Loan Commitments being as set forth on Appendix I to the Existing Bank Credit Agreement, as amended and restated hereby.


 


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.                      Amendment.  As of the Amendment and Restatement Effective Date, the Existing Bank Credit Agreement is hereby amended and restated as set forth in Annex A hereto.  Each Bank, by executing this Amendment hereby confirms that, on the Amendment and Restatement Effective Date, after giving effect to (a) each Departing Revolving Credit Loan Bank’s and each Reducing Revolving Credit Bank’s (as defined in the Credit Agreement) sale and assignment of its Total Outstandings and Revolving Credit Loan Commitment and (b) each Assignee Revolving Credit Bank’s (as defined in the Credit Agreement) purchase and assumption  of such Total Outstandings and Revolving Credit Loan Commitments, the


 


 




  





  











  











Revolving Credit Commitment of such Bank shall be as set forth on such Bank’s executed signature page to this Amendment No. 3.


 


SECTION 2.                      Conditions to Effectiveness.  This Amendment shall become effective when, and only when, and as of the date (the “Amendment and Restatement Effective Date”) on which:


 


(a)           the Agent shall have received counterparts of this Amendment executed by the Borrower and each of the Subsidiary Guarantors, each Departing Revolving Credit Loan Bank and each Revolving Credit Loan Bank or, as to any of the Revolving Credit Loan Banks, advice satisfactory to the Agent that such Bank Party has executed this Amendment;


 


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


 


(c)           each Departing Revolving Credit Loan Bank and each Reducing Revolving Credit Bank shall have received payment in full of all accrued interest and fees owing to it under the Existing Bank Credit Agreement with respect to that portion of its Revolving Credit Loan Commitment being sold and assigned on the Amendment and Restatement Effective Date;


 


(d)           each Bank that executes a counterpart to this Amendment on or before 12:00 p.m. (New York City time) on July 23, 2013, shall have received a commitment fee (based on percentage set forth below for the original amount such Bank agreed to commit in respect of the Revolving Credit Loan Facility) of the amount of such Bank’s Revolving Credit Loan Commitment (as set forth on Appendix I to the Credit Agreement) as follows:


 



	
Bank’s Original Committed Amount

	
Commitment Fee


 


	
$75,000,000 or greater

	
0.50%


	
$50,000,000 to $74,999,999

	
0.375%


	
$25,000,000 to $49,999,999

	
0.25%







 


(e)           the Agent shall have received a favorable opinion or opinions of counsel to the Borrower addressed to the Agent and the Banks regarding the due authorization, execution and delivery and enforceability of this Amendment and other matters reasonably requested by the Agent;


 


(f)           the Agent shall have received a certificate signed by a duly authorized officer of the Borrower dated the Amendment and Restatement Effective Date, to the effect that, after giving effect to this Amendment: (i) 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 and Restatement Effective Date as though made on and as of such date (unless


 










  





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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 (ii) no Default has occurred and is continuing; and


 


(g)           the Agent shall have received certified copies of (A) the resolutions of the Board of Directors of the Borrower approving this Amendment and the matters contemplated hereby and (B) all other documents evidencing other necessary corporate action and governmental or other third party approvals and consents, if any, with respect to this Amendment and the matters contemplated hereby.


 


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, after giving effect to this Amendment, 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)           After giving effect to this Amendment, no Default has occurred and is continuing on the date hereof.


 


SECTION 4.                      Reference to and Effect on the Financing Documents.  (a)  On and after the Amendment and Restatement Effective Date, 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 restated hereby.


 


(b)           The Credit Agreement, the Notes and each of the other Financing Documents, as specifically modified 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 modified by this Amendment. Each of Borrower and AES BVI II (i) acknowledges and agrees that (A) each Financing Document to which it is a party is hereby confirmed and ratified and shall remain in full force and effect according to its respective terms, as amended pursuant to this Amendment and (B) the Collateral Documents do, and all of the Collateral does, and in each case shall continue to, secure the payment of all Secured Obligations on the terms and conditions set forth in the Collateral Documents, and (ii) hereby ratifies the security interests granted by it pursuant to the Collateral Documents and each of Borrower and AES BVI II hereby confirms and ratifies its continuing unconditional obligations under the Financing Documents with respect to all of the Secured Obligations.


 










  





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


 


SECTION 5.                      Release of Subsidiary Guarantors.  Each Agent and Bank hereby consents to the amendments to the Credit Agreement effected hereby, including, without limitation, the release and termination  of the obligations of each Subsidiary Guarantor contained in Article IX of the Existing Credit Agreement or in any other Financing Documents.


 


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 RIGHTS 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.


 


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.  Delivery of an executed counterpart of a signature page to this Amendment by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart of this Amendment


 


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.


 


[Signature Pages Follow]


 










  





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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/ Willard C. Hoagland, III                    


Title:           Vice President and Treasurer


Address:     4300 Wilson Boulevard


Arlington, VA  22203


Fax:              (703) 528-4510




 





  





 











  












	
GRANTOR:


 


AES INTERNATIONAL HOLDINGS II, LTD.,


as Grantor


	 	 	 
	
By: 

	 /s/ Willard C. Hoagland, III	 
	 	
Title: President

	 
	 	Address: 	4300 Wilson Boulevard

Arlington, VA 	 
	 	Fax:  (703) 528-4510	 







 















  





 











  








 


 





	

SUBSIDIARY GUARANTORS:







AES HAWAII MANAGEMENT COMPANY, INC.,


as Subsidiary Guarantor




	 	 	 
	
By: 

	 /s/ Willard C. Hoagland, III	 
	 	
Title: Treasurer

	 
	 	Address: 	4300 Wilson Boulevard

Arlington, VA 22203	 
	 	Fax: (703) 528-4510	 





 




 





	

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



as Subsidiary Guarantor






	 	 	 
	
By: 

	 /s/ Willard C. Hoagland, III	 
	 	
Title: Treasurer

	 
	 	Address: 	4300 Wilson Boulevard

Arlington, VA 22203	 
	 	Fax: (703) 528-4510











 



 





	


AES OKLAHOMA HOLDINGS, L.L.C.,


as Subsidiary Guarantor






	 	 	 
	
By: 

	 /s/ Willard C. Hoagland, III	 
	 	
Title: Treasurer

	 
	 	Address: 	4300 Wilson Boulevard

Arlington, VA 22203	 
	 	Fax: (703) 528-4510









 






 





	



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


as Subsidiary Guarantor








	 	 	 
	
By: 

	 /s/ Willard C. Hoagland, III	 
	 	
Title: Treasurer

	 
	 	Address: 	4300 Wilson Boulevard

Arlington, VA 22203	 
	 	Fax: (703) 528-4510









 






 


 










  





 











  








 


 





	




AGENTS:


 


CITIBANK, N.A.,


as Agent










	 	 	 
	
By: 

	 /s/ Roland Kirkwood	 
	 	
Title: Director & Vice President

	 
	 	Address:	390 Greenwich Street, 1st Floor

New York, NY 10013	 
	 	 	 
	 	Fax:   (646) 352-0795
	 	
Attention: Roland Kirkwood


	 	
Email: kirkwood.roland@citi.com











 


 



	




CITIBANK N.A.,



as Collateral Agent












	 	 	 
	
By: 

	/s/ Roland Kirkwood	 
	 	


Title: Director & Vice President



	 
	 	Address:	390 Greenwich Street, 1st Floor

New York, NY 10013	 
	 	 	 
	 	Fax:   (646) 352-0795
	 	
Attention:  Roland Kirkwood




















  





 











  








 



	



 








	 	 
	CITIBANK, N.A.,	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Roland Kirkwood	 
	 	Name: Kirkwood Roland	 
	 	
Title: Director & Vice President

	 





 


 



	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$75,000,000.00	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$75,000,000.00	 
	
 

	 
	 	 
	 




















  





 











  








 



	



 








	 	 
	Associated Bank, N.A., 	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Yolanda Meza	 
	 	Name: Yolanda Meza	 
	 	
Title: Vice President

	 





 


 



	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$15,000,000.00	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$25,000,000.00	 
	
 

	 
	 	 
	 







 




















  





 











  








 



	



 








	 	 
	Bank of America, N.A., 	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Jerry Wells	 
	 	Name: Jerry Wells	 
	 	
Title: Vice President

	 





 


 



	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$50,000,000.00	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$75,000,000.00	 
	
 

	 
	 	 
	 




























  





 











  








 



	



 








	 	 
	BARCLAYS BANK, PLC, 	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Sreedhar R. Kona	 
	 	Name: Sreedhar R. Kona	 
	 	
Title: Vice President

	 





 


 



	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$75,000,000	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$75,000,000	 
	
 

	 
	 	 
	 














 

















  





 











  








 



	



 








	 	 
	BNP Paribas,, 	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Francis DeLaney	 
	 	Name: Francis DeLaney	 
	 	
Title: Managing Director

	 







	 	 	 
	
By: 

	 /s/ Pasquale Perraglia	 
	 	Name: Pasquale Perraglia	 
	 	
Title: Director

	 



 




 


 


 



	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$25,000,000	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$25,000,000	 
	
 

	 
	 	 
	 






























  





 











  








 



	



 








	 	 
	Crédit Agricole Corporate and Investment Bank,	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Deborah Kross	 
	 	Name: Deborah Kross	 
	 	
Title: Director

	 







	 	 	 
	
By: 

	 /s/ Ken Ricciardi	 
	 	Name: Ken Ricciardi	 
	 	
Title: Director

	 



 




 



	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$25,000,000.00	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$25,000,000.00	 
	
 

	 
	 	 
	 




























  





 











  








 



	



 








	 	 
	
CREDIT SUISSE, AG, Cayman Islands Branch,

	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Mikhail Faybusovich	 
	 	Name: Mikhail Faybusovich	 
	 	
Title: Authorized Signatory

	 







	 	 	 
	
By: 

	 /s/ Tyler R. Smith	 
	 	Name: Tyler R. Smith	 
	 	
 
Title: Authorized Signatory



	 



 




 



	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$75,000,000	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$75,000,000	 
	
 

	 
	 	 
	 





















  





 











  








 



	



 








	 	 
	
Deutsche Bank AG New York Branch,

	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Marcus M. Tarkington	 
	 	Name: Marcus M. Tarkington	 
	 	
Title: Director

	 







	 	 	 
	
By: 

	 /s/ Michael Getz	 
	 	Name: Michael Getz	 
	 	
 
Title: Vice President



	 



 




 



	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$75,000,000	 
	
 

	 
	 	 
	 























  





 











  








 



	



 








	 	 
	
Goldman Sachs Bank USA,

	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Mark Walton	 
	 	Name: Mark Walton	 
	 	
Title: Authorized Signatory

	 







 





	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$50,000,000.00	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$75,000,000.00	 
	
 

	 
	 	 
	 




















  





 











  








 



	



 








	 	 
	
HSBC Bank USA, National Association,

	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Alexandra Barrows	 
	 	Name: Alexandra Barrows	 
	 	
Title: Vice President

	 







 





	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$25,000,000	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$25,000,000	 
	
 

	 
	 	 
	 




















  





 











  








 



	



 








	 	 
	
JPMorgan Chase Bank, N.A.,

	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Juan J. Javellana	 
	 	Name: Juan J. Javellana	 
	 	
Title: Executive Director

	 







 





	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$50,000,000.00	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$75,000,000.00	 
	
 

	 
	 	 
	 






















  





 











  








 



	



 








	 	 
	
MORGAN STANLEY BANK,N.A.,

	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Kelly Chin	 
	 	Name: Kelly Chin	 
	 	
Title: Authorized Signatory

	 







 





	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$75,000,000	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$75,000,000	 
	
 

	 
	 	 
	 




















  





 











  








 



	



 








	 	 
	
Royal Bank of Scotland plc,

	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Tyler J. McCarthy	 
	 	Name: Tyler J. McCarthy	 
	 	
Title: Director

	 







 





	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$75,000,000	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$75,000,000	 
	
 

	 
	 	 
	 






















  





 











  








 



	



 








	 	 
	
Societe Generale,

	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Yao Wang	 
	 	Name: Yao Wang	 
	 	
Title: Director

	 







 





	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$25,000,000	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$25,000,000	 
	
 

	 
	 	 
	 





























































  





 











  








 



	



 








	 	 
	
Union Bank N.A.,

	 
	
as Bank

	 
	 	 
	 





	 	 	 
	
By: 

	 /s/ Michael Agrimis	 
	 	Name: Michael Agrimis	 
	 	
Title: Vice President

	 







 





	




Revolving Credit Loan Commitment


under Existing Bank Credit Agreement:










	 	 
	$75,000,000.00	 
	
 

	 
	 	 
	 





 


 



	





Revolving Credit Loan Commitment


on Amendment and Restatement Effective 


Date under Credit Agreement:












	 	 
	$75,000,000.00	 
	
 

	 
	 	 
	 














 







  





 











  























ANNEX A