AMENDMENT NO. 2 TO CREDIT AGREEMENT

Contract Categories: Business Finance - Credit Agreements
EX-10.4 5 exhibit10_4.htm EXHIBIT 10.4 exhibit10_4.htm
Exhibit 10.4
 

 
AMENDMENT NO. 2 TO CREDIT AGREEMENT
 
AMENDMENT dated as of October 19, 2011 (this “Amendment”) to the Revolving Credit Agreement dated as of November 1, 2010 (as amended, amended and restated or otherwise modified from time to time, the “Credit Agreement”) among KENTUCKY UTILITIES COMPANY (the “Borrower”), the LENDERS party thereto (the “Lenders”) and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Issuing Lender and Swingline Lender (the “Agent”).
 
W I T N E S S E T H :
 
WHEREAS, the parties hereto desire to amend the Credit Agreement to (i) extend the scheduled Termination Date from December 31, 2014 to October 19, 2016, (ii) modify the definition of “Applicable Percentage” and (iii) make certain other amendments 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 that 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 .  Extension of Termination Date.  The definition of “Termination Date” in Section 1.01 of the Credit Agreement is amended by changing the date specified therein from “December 31, 2014” to “October 19, 2016.”
 
SECTION 3 .  Reduction of Interest Rates.  The chart set forth in the definition of “Applicable Percentage” in Section 1.01 of the Credit Agreement (the “Existing Pricing Schedule”) is deleted and replaced by the chart set forth below (the “New Pricing Schedule”).  The New Pricing Schedule shall apply to interest and fees accruing under the Credit Agreement on and after the date hereof.  The Existing Pricing Schedule shall continue to apply to interest and fees accruing under the Credit Agreement prior to the date hereof.
 
 
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Borrower’s Ratings
(S&P /Moody’s)
Applicable Percentage for Commitment Fees
Applicable Percentage for Base Rate Loans
Applicable Percentage for Euro-Dollar Loans and Letter of Credit Fees
Category A
> A from S&P / A2 from
Moody’s
0.100%
0.000%
1.000%
Category B
> A- from S&P / A3 from
Moody’s
0.125%
0.125%
1.125%
Category C
BBB+ from S&P / Baa1 from
Moody’s
0.175%
0.250%
1.250%
Category D
BBB from S&P / Baa2 from
Moody’s
0.200%
0.500%
1.500%
Category E
BBB- from S&P / Baa3 from
Moody’s
0.250%
0.625%
1.625%
Category F
≤BB+ from S&P / Ba1
from Moody’s
0.350%
0.875%
1.875%

 
SECTION 4 .  Administrative Agent’s Fees.  Section 8.10 of the Credit Agreement is hereby amended to read in its entirety:
 
“The Borrower shall pay to the Administrative Agent for its own account fees in the amount and at the times agreed to and accepted by the Borrower, pursuant to that certain fee letter dated as of September 20, 2011 among the Borrower, the Administrative Agent, Bank of America, N.A., The Royal Bank of Scotland plc, Wells Fargo Securities, Merrill Lynch, Pierce, Fenner & Smith Incorporated and RBS Securities Inc.”
 
SECTION 5 .  Changes in Commitments.  With effect from and including the Amendment Effective Date, (i) each Person listed on Schedule 1 hereto that is not a party to the Credit Agreement (each, a “New Lender” and, together with each Lender that is not an Exiting Lender, the “Continuing Lenders”) shall become a Lender party to the Credit Agreement, (ii) the Commitment of each Lender shall be the amount set forth opposite the name of such Lender on Schedule 1 and (iii) the Commitment Appendix set forth on Schedule 1 hereto shall replace the Commitment Appendix attached to the Credit Agreement.  On the Amendment Effective Date, any Lender whose Commitment is changed to zero (each, an “Exiting Lender”) shall cease to be a Lender party to the Credit Agreement, and all accrued fees and other amounts payable under the Credit Agreement for the account of each Exiting Lender shall be due and payable on such date; provided that the provisions of Sections 2.12, 2.16, 2.17 and 9.03 of the Credit Agreement shall continue to inure to the benefit of each Exiting Lender after the Amendment Effective Date.  On the Amendment Effective Date, the Commitment Ratio of the Continuing Lenders shall be redetermined giving effect to the adjustments to the Commitments referred to in this Section 5, and the participations of the
 

 
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Continuing lenders in and the obligations of the Continuing Lenders in respect of any Letters of Credit outstanding on the Amendment Effective Date shall be reallocated to reflect such redetermined Commitment Ratio.
 
SECTION 6 .  Letter of Credit Fees.  Section 2.07(b) of the Credit Agreement is amended by changing the rate specified therein from “0.25%” to “0.20%.”
 
SECTION 7 .  Representations and Warranties.  The following sections of Article V of the Credit Agreement are amended as follows:
 
(a) The references to “December 31, 2009” in Section 5.04(a) and Section 5.04(c) of the Credit Agreement are changed to “December 31, 2010” and Section 5.04(b) of the Credit Agreement is hereby amended to read in its entirety:
 
“The unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of June 30, 2011 and the related unaudited consolidated statements of income and cash flows for the six months then ended fairly present, in conformity with GAAP applied on a basis consistent with the financial statements referred to in subsection (a) of this Section, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash  flows for such six-month period (subject to normal year-end audit adjustments).”
 
(b) Section 5.05 of the Credit Agreement is hereby amended to add the following clause immediately prior to the clause “or otherwise furnished in writing to the Administrative Agent and each Lender,”:
 
“or in any subsequent report of the Borrower filed with the SEC on Form 10-K, 10-Q or 8-K,”
 
(c) References in Section 5.08 of the Credit Agreement to the KPSC Order, TRA Order and VSCC Order shall be deemed to include any orders of the Kentucky Public Service Commission (“KPSC”), Tennessee Regulatory Authority (“TRA”) and Virginia State Corporation Commission (“VSCC”) delivered pursuant to Section 11(f) of this Amendment.
 
(d) Section 5.13(a)(i) and Section 5.13(b) of the Credit Agreement are each hereby amended to add the following clause immediately prior to the clause “or otherwise furnished in writing to the Administrative Agent and each Lender,”:
 

 
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“or in any subsequent report of the Borrower filed with the SEC on Form 10-K, 10-Q or 8-K,”
 
(e) Section 5.15 of the Credit Agreement is hereby deleted.
 
SECTION 8 .  Full Force and Effect; Ratification.  Except as expressly modified herein, all of the terms and conditions of the Credit Agreement are unchanged, and, as modified hereby, the Borrower confirms and ratifies all of the terms, covenants and conditions of the Credit Agreement.  This Amendment constitutes the entire and final agreement among the parties hereto with respect to the subject matter hereof and there are no other agreements, understandings, undertakings, representations or warranties among the parties hereto with respect to the subject matter hereof except as set forth herein.
 
SECTION 9.  Governing Law.  This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
 
SECTION 10 .  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 11 .  Effectiveness.  This Amendment shall become effective as of the first date when each of the following conditions are met (the “Amendment Effective Date”):
 
(a) the Agent shall have received from the Borrower and each Continuing Lender and Lenders constituting Required Lenders 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;
 
(b) the Agent shall have received a duly executed revised Note for the account of each Lender requesting delivery of such Note pursuant to Section 2.05 of the Credit Agreement;
 
(c) the Agent shall have received satisfactory opinions of counsel for the Borrower, dated the Amendment Effective Date;
 
(d) the Agent shall have received a certificate dated the Amendment Effective Date signed on behalf of the Borrower by the Chairman of the Board, the President, any Vice President, the Treasurer or the Assistant Treasurer of the Borrower stating that (A) on the Amendment Effective Date and after giving effect to this Amendment, no Default shall have occurred and be continuing and (B) the representations and warranties
 

 
4

 
of the Borrower contained in the Credit Agreement after giving effect to this Amendment are true and correct on and as of the Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct as of such earlier date;
 
(e) the Agent shall have received (i) a certificate of the Secretary of State of the Commonwealth of Kentucky and a certificate of the Secretary of State of the Commonwealth of Virginia, each dated as of a recent date, as to the good standing of the Borrower and (ii) a certificate of the Secretary or an Assistant Secretary of the Borrower dated the Amendment Effective Date and certifying (A) that attached thereto is a true, correct and complete copy of (x) the Borrower's articles of incorporation certified by the Secretary of State of the Commonwealth of Kentucky and the Secretary of State of the Commonwealth of Virginia and (y) the bylaws of the Borrower, (B) as to the absence of dissolution or liquidation proceedings by or against the Borrower, (C) that attached thereto is a true, correct and complete copy of resolutions adopted by the board of directors of the Borrower authorizing the execution, delivery and performance of this Amendment and each other document delivered in connection herewith and that such resolutions have not been amended and are in full force and effect on the date of such certificate and (D) as to the incumbency and specimen signatures of each officer of the Borrower executing this Amendment or any other document delivered in connection herewith;
 
(f) all necessary governmental (domestic or foreign), regulatory and third party approvals, including, without limitation, the orders of the KPSC, TRA, VSCC and any required approvals of the Federal Energy Regulatory Commission, authorizing borrowings hereunder in connection with the transactions contemplated by this Amendment and the other Loan Documents shall have been obtained and remain in full force and effect, in each case without any action being taken by any competent authority which could restrain or prevent such transaction or impose, in the reasonable judgment of the Agent, materially adverse conditions upon the consummation of such transactions; provided that any such approvals with respect to elections by the Borrower to increase the Commitment as contemplated by Section 2.19 of the Credit Agreement need not be obtained or provided until the Borrower makes any such election;
 
(g) there shall be no outstanding Loans; and
 
(h) the Agent shall have received all costs, fees and expenses due to the Agent, the Joint Lead Arrangers (as such term is defined in the Commitment Letter) and the Lenders.
 

 
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SECTION 12 . Miscellaneous.  This Amendment shall constitute a Loan Document for all purposes of the Credit Agreement and the other Loan Documents.  The provisions of this Amendment are deemed incorporated into the Credit Agreement as if fully set forth therein.  The Borrower shall pay all reasonable out-of-pocket costs and expenses of the Agent incurred in connection with the negotiation, preparation and execution of this Amendment and the transactions contemplated hereby.
 

 
[Signature Pages to Follow]
 
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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.
 
KENTUCKY UTILITIES COMPANY
By:
/s/  Daniel K. Arbough
 
Name:
Daniel K. Arbough
 
Title:
Treasurer



[Signature Page to KU – Amendment]
 
 

 


WELLS FARGO BANK, NATIONAL ASSOCIATION, as Agent
By:
/s/ Keith Luettel
 
Name:
Keith Luettel
 
Title:
Vice President


[Signature Page to KU – Amendment]
 
 

 


BANK OF AMERICA, N.A.
By:
/s/ Michael Mason
 
Name:
Michael Mason
 
Title:
Director


[Signature Page to KU – Amendment]
 
 

 


THE ROYAL BANK OF SCOTLAND PLC
By:
/s/ Andrew N Taylor
 
Name:
Andrew N Taylor
 
Title:
Vice President


[Signature Page to KU – Amendment]
 
 

 


CREDIT SUISSE AG, Cayman Islands Branch
By:
/s/ Mikhail Faybusovich
 
Name:
Mikhail Faybusovich
 
Title:
Director
     
By:
/s/ Vipul Dhadda
 
Name:
Vipul Dhadda
 
Title:
Associate


[Signature Page to KU – Amendment]
 
 

 


THE BANK OF NOVA SCOTIA
By:
/s/ Thane Rattew
 
Name:
Thane Rattew
 
Title:
Managing Director


[Signature Page to KU – Amendment]
 
 

 


THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By:
/s/ Bradford Joyce
 
Name:
Bradford Joyce
 
Title:
Director


[Signature Page to KU – Amendment]
 
 

 


UNION BANK, N.A.
By:
/s/ Michael Agrimis
 
Name:
Michael Agrimis
 
Title:
Vice President


[Signature Page to KU – Amendment]
 
 

 


BARCLAYS BANK PLC
By:
/s/ Michael Mozer
 
Name:
Michael Mozer
 
Title:
Vice President


[Signature Page to KU – Amendment]
 
 

 


BNP PARIBAS
By:
/s/ Francis DeLaney
 
Name:
Francis DeLaney
 
Title:
Managing Director
     
By:
/s/ Pasquale Perraglia
 
Name:
Pasquale Perraglia
 
Title:
Vice President
     


[Signature Page to KU – Amendment]
 
 

 


CITIBANK, N.A.
By:
/s/ Anita J. Brickell
 
Name:
Anita J. Brickell
 
Title:
Vice President


[Signature Page to KU – Amendment]
 
 

 


JPMORGAN CHASE BANK, N.A.
By:
/s/ Juan Javellana
 
Name:
Juan Javellana
 
Title:
Executive Director


[Signature Page to KU – Amendment]
 
 

 


MORGAN STANLEY BANK, N.A.
By:
/s/ Michael King
 
Name:
Michael King
 
Title:
Authorized Signatory


[Signature Page to KU – Amendment]
 
 

 


ROYAL BANK OF CANADA
By:
/s/ Patrick Shields
 
Name:
Patrick Shields
 
Title:
Authorized Signatory


[Signature Page to KU – Amendment]
 
 

 


UBS LOAN FINANCE LLC
By:
/s/ Irja R. Otsa
 
Name:
Irja R. Otsa
 
Title:
Associate Director
     
By:
/s/ Mary E. Evans
 
Name:
Mary E. Evans
 
Title:
Associate Director


[Signature Page to KU – Amendment]
 
 

 


GOLDMAN SACHS BANK USA
By:
/s/ Mark Walton
 
Name:
Mark Walton
 
Title:
Authorized Signatory




[Signature Page to KU – Amendment]
 
 

 


CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
By:
/s/ Dixon Schultz
 
Name:
Dixon Schultz
 
Title:
Managing Director
     
By:
/s/ Sharada Manne
 
Name:
Sharada Manne
 
Title:
Director


[Signature Page to KU – Amendment]
 
 

 


DEUTSCHE BANK AG NEW YORK BRANCH
By:
/s/ Ming K. Chu
 
Name:
Ming K. Chu
 
Title:
Vice President
     
By:
/s/ Virginia Cosenza
 
Name:
Virginia Cosenza
 
Title:
Vice President


[Signature Page to KU – Amendment]
 
 

 


KEYBANK NATIONAL ASSOCIATION
By:
/s/ Craig A. Hanselman
 
Name:
Craig A. Hanselman
 
Title:
Vice President


[Signature Page to KU – Amendment]
 
 

 


LLOYDS TSB BANK PLC
By:
/s/ Windsor R. Davies
 
Name:
Windsor R. Davies
 
Title:
Managing Director
     
By:
/s/ Charles Foster
 
Name:
Charles Foster
 
Title:
Managing Director


[Signature Page to KU – Amendment]
 
 

 


U.S. BANK NATIONAL ASSOCIATION
By:
/s/ J. James Kim
 
Name:
J. James Kim
 
Title:
Vice President


[Signature Page to KU – Amendment]
 
 

 


BAYERISCHE LANDESBANK, NEW YORK BRANCH
By:
/s/ Rolf Siebert
 
Name:
Rolf Siebert
 
Title:
Senior Vice President
     
By:
/s/ Gina Sandella
 
Name:
Gina Sandella
 
Title:
Vice President


[Signature Page to KU – Amendment]
 
 

 


BANCO BILBAO VIZCAYA ARGENTARIA S.A. – NEW YORK BRANCO
By:
/s/ Michael Oka
 
Name:
Michael Oka
 
Title:
Executive Director
     
By:
/s/ Nietzsche Rodricks
 
Name:
Nietzsche Rodricks
 
Title:
Executive Director


[Signature Page to KU – Amendment]
 
 

 


THE BANK OF NEW YORK MELLON
By:
/s/ John N. Watt
 
Name:
John N. Watt
 
Title:
Vice President



[Signature Page to KU – Amendment]
 
 

 


MIZUHO CORPORATE BANK, LTD.
By:
/s/ Raymond Ventura
 
Name:
Raymond Ventura
 
Title:
Deputy General Manager




[Signature Page to KU – Amendment]
 
 

 


SOVEREIGN BANK
By:
/s/ Robert D. Lanigan
 
Name:
Robert D. Lanigan
 
Title:
SVP


[Signature Page to KU – Amendment]
 
 

 


SUNTRUST BANK
By:
/s/ Andrew Johnson
 
Name:
Andrew Johnson
 
Title:
Director


[Signature Page to KU – Amendment]
 
 

 


CIBC INC.
By:
/s/ Josh Hogarth
 
Name:
Josh Hogarth
 
Title:
Director
     
By:
/s/ Eoin Roche
 
Name:
Eoin Roche
 
Title:
Executive Director


[Signature Page to KU – Amendment]
 
 

 


FIFTH THIRD BANK
By:
/s/ Randolph J. Stierer
 
Name:
Randolph J. Stierer
 
Title:
Vice President


[Signature Page to KU – Amendment]
 
 

 


PNC BANK, NATIONAL ASSOCIATION
By:
/s/ Edward M. Tessalone
 
Name:
Edward M. Tessalone
 
Title:
Senior Vice President


[Signature Page to KU – Amendment]
 
 

 


SUMITOMO MITSUI BANKING CORPORATION
By:
/s/ Masakazu Hasegawa
 
Name:
Masakazu Hasegawa
 
Title:
Managing Director


[Signature Page to KU – Amendment]
 
 

 


THE NORTHERN TRUST COMPANY
By:
/s/ Peter J. Hallan
 
Name:
Peter J. Hallan
 
Title:
Vice President


[Signature Page to KU – Amendment]
 
 

 


WING LUNG BANK LTD. LOS ANGELES BRANCH
By:
/s/ Irene Kwan
 
Name:
Irene Kwan
 
Title:
VP/ Deputy Branch Manager


[Signature Page to KU – Amendment]
 
 

 

Schedule 1

Commitment Appendix

Lender
Revolving Commitment
Wells Fargo Bank, National Association
$20,500,000.00
Bank of America, N.A.
20,500,000.00
The Royal Bank of Scotland plc
20,500,000.00
Credit Suisse AG, Cayman Islands Branch
19,000,000.00
The Bank of Nova Scotia
19,000,000.00
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
9,500,000.00
Union Bank, N.A.
9,500,000.00
Barclays Bank PLC
19,000,000.00
BNP Paribas
19,000,000.00
Citibank, N.A..
19,000,000.00
JPMorgan Chase Bank, N.A.
19,000,000.00
Morgan Stanley Bank, N.A.
19,000,000.00
Royal Bank of Canada
19,000,000.00
UBS Loan Finance LLC
19,000,000.00
Goldman Sachs Bank USA
19,000,000.00
Credit Agricole Corporate & Investment Bank
14,000,000.00
Deutsche Bank AG New York Branch
14,000,000.00
KeyBank National Association
14,000,000.00
Lloyds TSB Bank plc
14,000,000.00
U.S. Bank National Association
14,000,000.00
Bayerische Landesbank, New York Branch
6,800,000.00
Banco Bilbao Vizcaya Argentaria S.A.
6,800,000.00
The Bank of New York Mellon
6,800,000.00
Mizuho Corporate Bank, Ltd.
6,800,000.00
Sovereign Bank
6,800,000.00
SunTrust Bank
6,800,000.00
CIBC Inc.
4,000,000.00
Fifth Third Bank
4,000,000.00
PNC Bank, National Association
4,000,000.00
Sumitomo Mitsui Banking Corporation
4,000,000.00
The Northern Trust Company
2,700,000.00
Wing Lung Bank Ltd. Los Angeles Branch
0.00
Total
$400,000,000.00