AMENDMENT NO. 1 – CREDIT AGREEMENT (AESC)
Exhibit 10.1
AMENDMENT NO. 1 – CREDIT AGREEMENT (AESC)
AMENDMENT NO. 1, dated as of September 11, 2007 (this “Amendment”), in respect of the Credit
Agreement (the “Credit Agreement”), dated as of May 2, 2006, among Allegheny Energy Supply Company,
LLC (the “Borrower”), the Initial Lenders, the Swing Line Bank and the Initial Issuing Bank named
therein, and Citicorp USA, Inc., as Administrative Agent. Capitalized terms not otherwise defined
herein shall have the same meanings as set forth in the Credit Agreement.
PRELIMINARY STATEMENT
The Borrower has requested that the Revolving Facility be increased in the amount of $200
million and the Borrower be permitted to make cash dividends from time to time to the Parent,
including with the proceeds of the Revolving Facility.
SECTION 1. Amendment. Subject to the satisfaction of the conditions precedent set forth in
Section 2, the Required Lenders, the Borrower, and all of the Revolving Lenders listed on the
signature pages hereof as Increasing Revolving Lenders (each, an “Increasing Revolving Lender”)
hereby agree as follows:
(a) Schedule I to the Credit Agreement is amended and replaced in its entirety with
Exhibit A attached hereto.
(b) To amend Section 2.15 of the Credit Agreement by inserting the text that appears
below as bolded and underlined:
The proceeds of the Advances and issuances of any Letter of Credit shall be available
(and the Borrower agrees that it shall use proceeds of Advances made to it and each Letter
of Credit issued at its request) solely (a) in the case of the Term Borrowing and, to the
extent proceeds of such Revolving Borrowing are not applied in accordance with clause (b)
below, each Revolving Borrowing on the Closing Date, to repay in full the Existing Debt, (b)
in the case of each subsequent Revolving Borrowing (and each Revolving Borrowing comprising
the Initial Borrowing that is not required to pay the Existing Debt) and Letter of Credit,
for working capital for the Borrower and its Subsidiaries and to make cash dividends
from time to time to the Parent to the extent permitted under Section 5.02(f)(i)(F) and
(c) in the case of any additional borrowing made pursuant to Section 2.16, for general
corporate purposes.
(c) To amend Section 5.02(f)(i) of the Credit Agreement by inserting the text that
appears below as bolded and underlined and deleting the text that appears below as struck
through:
the Borrower may (A) declare and pay cash dividends and distributions with respect to
the ML Interests to the extent required under the Constituent Documents of the Borrower as
in effect on the Closing Date, (B) make payments to the Parent in respect of
reimbursement obligations under any drawn letter of credit posted by the Parent on
behalf of the Borrower or any of its Subsidiaries to support Obligations of the Borrower or
such
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Subsidiary undertaken in the ordinary course of business and not for speculative
purposes, (C) issue and sell shares of its Equity Interests, (D) commencing with the Fiscal
Year ending December 31, 2006, declare and pay cash dividends to the Parent in an aggregate
amount in any Fiscal Year not to exceed the greater of (1) $25,000,000 or (2) if the
Borrower’s Leverage Ratio as of the last day of the Fiscal Year immediately preceding the
Fiscal Year in which such dividend is paid was less than (I) 4.50:1.00, 25% of the
Borrower’s Consolidated Net Income for the Fiscal Year immediately preceding the Fiscal Year
in which such dividend is paid or (II) 3.50:1.00, 50% of the Borrower’s Consolidated Net
Income for the Fiscal Year immediately preceding the Fiscal Year in which such dividend is
paid, and (E) make any equity Investment in any of its Subsidiaries permitted under Section
5.02(e), and (F) declare and pay cash dividends from time to time to the Parent in an
aggregate amount not to exceed $300,000,000 to the extent the Borrower delivers, at the time
of each such payment, an Officer’s Certificate to the Administrative Agent certifying that
such dividend shall be applied directly or indirectly by the Parent to make Investments in a
Subsidiary of the Parent;
SECTION 2. Conditions to Effectiveness. This Amendment shall become effective when, and only
when, the Administrative Agent shall have received (a) counterparts of this Amendment executed by
the Borrower, the Required Lenders and all of the Increasing Revolving Lenders or, as to any of
such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this
Amendment and (b) to the extent requested, a Revolving Note of the Borrower for the account of each
Increasing Revolving Lender that has so requested, in an amount equal to the Revolving Commitment
of such Increasing Revolving Lender as set forth on Exhibit A hereto. The effectiveness of this
Amendment is further conditioned upon the accuracy of the factual matters described herein. This
Amendment is subject to the provisions of Section 8.01 of the Credit Agreement.
SECTION 3. Representations and Warranties of the Borrower. The Borrower hereby represents and
warrants as follows:
(a) The Borrower is a limited liability company, duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) Its execution, delivery and performance of this Amendment, are within its powers,
have been duly authorized by all necessary corporate action, and do not and will not (i)
contravene its Constituent Documents, (ii) violate any law, rule, regulation (including
Regulation X of the Board of Governors of the Federal Reserve System), order, writ,
judgment, injunction, decree, determination or award, (iii) conflict with or
result in the breach of, or constitute a default or require any payment to be made
under, any material contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument binding on or affecting it or any of its properties or (iv) result in or
require the creation or imposition of any Lien upon or with respect to any of its Assets,
except where, in the cases of clauses (i) through (iv), the violation of any such
Constituent Documents, law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan agreement, indenture,
mortgage, deed of
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trust, lease or other instrument, or creation or imposition of such Lien,
could not be reasonably expected to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority is required for the due execution, delivery or performance by it
of this Amendment.
(d) This Amendment has been duly executed and delivered by it. This Amendment is its
legal, valid and binding obligations, enforceable against it in accordance with its terms,
except to the extent limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally and by
general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(e) No Default has occurred and is continuing.
SECTION 4. Reference to and Effect on the Credit Agreement. (a) On and after the effectiveness
of this Amendment, 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 each of
the other Financing Documents to “the Credit 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 by this Amendment.
(a) The Credit Agreement, as specifically amended by this Amendment, is and shall continue to
be in full force and effect and is hereby in all respects ratified and confirmed.
(b) 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 any Lender Party or the
Administrative Agent under any of the Financing Documents, nor constitute a waiver of any provision
of any of the Financing Documents.
SECTION 5. Costs and Expenses. The Borrower agrees to pay on demand all costs and expenses of the
Administrative Agent in connection with the preparation, execution, delivery and administration,
modification and amendment of this Amendment and the other instruments and documents to be
delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel
for the Administrative Agent) in accordance with the terms of section 8.04 of the Credit
Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute but one
and the same agreement. 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.
SECTION 7.Governing Law. This Amendment shall be governed by, and construed in accordance with,
the laws of the State of New York.
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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.
| ALLEGHENY ENERGY SUPPLY COMPANY, LLC, | ||||||
| as Borrower | ||||||
| By Name: |
/s/ Xxxxx X. Xxxxxxxx
|
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| Title: | Treasurer | |||||
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| CITICORP USA, INC., | ||||||
| as Administrative Agent | ||||||
| By Name: |
/s/ Xxxxxxx Xxxxxxx
|
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| Title: | Vice President | |||||
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| CITICORP USA, INC., | ||||||
| as Increasing Revolving Lender | ||||||
| By Name: |
/s/ Xxxxxxx Xxxxxxx
|
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| Title: | Vice President | |||||
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| The Bank of Nova Scotia as Increasing Revolving Lender |
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| By Name: |
/s/ Xxxxx Xxxxxx
|
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| Title: | Managing Director | |||||
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| PNC BANK, NATIONAL ASSOCIATION as Increasing Revolving Lender |
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| By Name: |
/s/ Xxxxxx X. Xxxxxxx
|
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| Title: | Vice President | |||||
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| Xxxxx Fargo Bank, National Association, as Increasing Revolving Lender |
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| By Name: |
/s/ Xxxxxxx XxXxx
|
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| Title: | Vice President & Senior Relationship Manager |
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| Sovereign Bank, as Increasing Revolving Lender |
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| By Name: |
/s/ Xxxxxx Xxxxxxx
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| Title: | Senior Vice President | |||||
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| XXXXXXX SACHS CREDIT PARTNERS L.P., as Increasing Revolving Lender |
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| By Name: |
/s/ Xxxx Xxxxxx
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| Title: | AUTHORIZED SIGNATORY | |||||
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| JPMorgan Chase Bank, N.A., as Increasing Revolving Lender |
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| By Name: |
/s/ Xxxxxxx XxXxxxx
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| Title: | Executive Director | |||||
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| CREDIT SUISSE, Cayman Islands Branch as Increasing Revolving Lender |
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| By Name: |
/s/ Xxxxxx Xxxxxxxx
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| Title: | Director | |||||
| By Name: |
/s/ Xxxxxxx Xxxxx
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| Title: | Associate | |||||
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| BANK OF AMERICA, N.A., as Increasing Revolving Lender |
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| By Name: |
/s/ Xxxxx Xxxxxxxxx
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| Title: | Senior Vice President | |||||
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| BNP PARIBAS, as Increasing Revolving Lender |
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| By Name: |
/s/ Xxxxx X’Xxxxx
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| Title: | Managing Director | |||||
| By Name: |
/s/ Xxxxxxx X. Xxxxxxx
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| Title: | Managing Director | |||||
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| UNION BANK OF CALIFORNIA, N.A., as Increasing Revolving Lender |
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| By Name: |
/s/ Xxxxx X. Xxxxxxx
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| Title: | Vice President | |||||
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| XXXXXX XXXXXXX BANK, as Increasing Revolving Lender |
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| By Name: |
/s/ Xxxxxx Xxxxxx
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| Title: | Authorized Signatory | |||||
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| Bear Steams Corporate Lending Inc as Lender |
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| By Name: |
/s/ Xxxxxx Xxxxxxxxxxxx
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| Title: | Vice President | |||||
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| Bayerische Landesbank, as Lender |
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| By | /s/ Xxxxxxxxxxx Xxxx
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| Vice President | ||||||
| By | /s/ Xxxxx X. Xxxxxx
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| Vice President | ||||||
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| BARCLAYS BANK PLC, as Lender |
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| By | /s/ Xxxxxxxx Xxxx | |||||
| Name: Xxxxxxxx Xxxx | ||||||
| Title: Director | ||||||
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| National City Bank as Lender |
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| By | /s/ Xxxxx X. Xxxxxxx
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| Senior Vice President | ||||||
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| Commerzbank, AG, New
York and Grand Cayman Branches., as Lender |
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| By Name: |
/s/ Xxxxxx X. Xxxxxxxx
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| Title: | Senior Vice President | |||||
/s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Assistant Treasurer
Xxxxx Xxxxx
Assistant Treasurer
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Exhibit A
Schedule I to the Credit Agreement
Schedule I to the Credit Agreement
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