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
Amendment No.1
AESC Credit Agreement
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
