Exhibit 10.1
FIRST AMENDMENT
This FIRST AMENDMENT dated as of April 15, 2009
(this “ Amendment ”) amends the AMENDED AND
RESTATED CREDIT AGREEMENT dated as of July 6, 2006 (the “
Credit Agreement ”) among MIDAMERICAN ENERGY COMPANY
(the “ Company ”), various financial
institutions (the “ Banks ”) and JPMORGAN CHASE
BANK, N.A., as Administrative Agent. Capitalized terms
used but not defined herein have the respective meanings given to
them in the Credit Agreement.
WHEREAS, the parties hereto have agreed to amend
the Credit Agreement in certain respects as more fully set forth
below;
NOW, THEREFORE, the parties hereto agree as
follows:
SECTION 1 AMENDMENTS
. Subject to satisfaction of the condition precedent in
Section 3 , the Credit Agreement is amended as
follows:
1.1 Addition of
Definitions . Section 1.1 is amended by adding the
following definitions in proper alphabetical order:
“Designated Bank” means a Defaulting
Bank or a Downgraded Bank.
“Defaulting Bank” means any Bank
that (a) has not made available to the Administrative Agent such
Bank’s ratable portion of a requested borrowing or has not
reimbursed the LC Issuer for such Bank’s Pro Rata Share of
the amount of a payment made by the LC Issuer under a Facility LC,
in each case within three Business Days after the due date therefor
in accordance with Section 2.4.1 or Section 2.7.5 ,
as applicable; (b) has notified the Company or the Administrative
Agent that it does not intend to comply with its obligations under
Section 2.4.1 or Section 2.7.5 ; or (c) is the
subject of a bankruptcy, insolvency or similar
proceeding. A Bank shall not be a Defaulting Bank solely
by virtue of the ownership or acquisition of an equity interest in
such Bank or its parent company by a governmental authority or
instrumentality thereof.
“Downgraded Bank” means any Bank
that (a) has a non-investment grade rating from Moody’s
Investors Service, Inc., Standard & Poor’s Rating
Services, a division of The McGraw Hill Companies, Inc., or another
nationally recognized rating agency or (b) is a Subsidiary of a
Person that is the subject of a bankruptcy, insolvency or similar
proceeding.
1.2 Definition of
Aggregate Commitment . The definition of Aggregate
Commitment in Section 1.1 is amended by substituting the following
for the period at the end thereof:
;
provided that for purposes of Sections 2.1.2 ,
2.2.2 , 2.4.2 , 2.7.1 and 2.7.6 , at
any time there is a Defaulting Bank, the Aggregate Commitment shall
be reduced by an amount equal to the remainder of (A) the amount of
such Defaulting Bank’s Commitment minus (B) the principal
amount of such Defaulting Bank’s outstanding
Loans. No reduction of the Aggregate Commitment pursuant
to the proviso to the foregoing sentence shall be permanent (and if
the circumstances giving rise to such a reduction of the Aggregate
Commitment cease to exist, then such reduction shall no longer
apply).
1.3 Definition of
LC Issuer . The definition of LC Issuer in Section
1.1 is amended in its entirety to read as follows (and if at any
time there is more than one LC Issuer, all other provisions of the
Credit Agreement shall be deemed to be amended to the extent
necessary or appropriate to accommodate multiple LC
Issuers):
“LC Issuer” means JPMorgan (or any
subsidiary or affiliate of JPMorgan designated by JPMorgan) or any
other Bank designated by the Company that agrees to issue Facility
LCs hereunder, in each case in its capacity as an issuer of
Facility LCs hereunder.
1.4 Termination of
Designated Bank . The following subsection (iii) is
added to Section 2.4.12 in proper sequence:
(iii) Concurrently
with the termination of a Designated Bank’s Commitment
pursuant to Section 3.6, (a) the Aggregate Commitment shall be
reduced by the amount of such Commitment; and (b) the
participations of the other Banks in the undrawn stated amount of
all Facility LCs shall be redetermined as if all outstanding
Facility LCs were issued on such date.
1.5 Cash
Collateralization of Participation Obligations of Defaulting
Bank . The following Section 2.7.13 is added to
Section 2.7 in proper sequence:
2.7.13 Cash Collateralization of
Participation Obligations of Defaulting Bank . If a
Bank at any time becomes a Defaulting Bank and Letters of Credit
are outstanding (or the Company requests the issuance of a Letter
of Credit) at such time, then the Company shall promptly (and in
any event within three Business Days) after request by the LC
Issuer or the Administrative Agent (or, in the case of the
requested issuance of a Letter of Credit, prior to such issuance)
provide cash collateral to the Administrative Agent in an amount
equal to the aggregate amount of such Defaulting Bank’s
participation in the outstanding Letters of Credit (or in the
requested Letter of Credit, if applicable) pursuant to
documentation satisfactory to the Administrative Agent, the LC
Issuer and the Company, which cash collateral shall secure such
Defaulting Bank’s contingent obligations to the LC Issuer in
respect of such Letters of Credit. If the amount of cash
collateral required to cover a Defaulting Bank’s
participation in Letters of Credit is reduced (or the circumstances
giving rise to the requirement that the Company provide cash
collateral pursuant to this Section 2.7.13 cease to exist), then
the Administrative Agent shall promptly return the excess (or, if
applicable, all) cash collateral to the Company.
1.6 Replacement of
Designated Bank . The second line in Section 3.5 is
amended by (a) replacing the word “or” (which appears
before the words “delivers a notice”) with a comma and
(b) inserting the following immediately after the words
“pursuant to Section 3.2 ”: “or is a
Designated Bank”.
1.7
Termination of Designated Bank . The following
Section 3.6 is added to Article III in proper sequence:
3.6
Termination of Designated Bank . At any time a
Bank is a Designated Bank, the Company may terminate in full the
Commitment of such Designated Bank by giving notice to such
Designated Bank and the Administrative Agent (which notice shall
specify the effective
