Exhibit 10.1
EXECUTION VERSION
AMENDMENT NO. 4 – CREDIT
AGREEMENT
(PUBLISHED CUSIP NUMBER
01736CAA0)
(PUBLISHED ISIN NUMBER
US01736CAA09)
AMENDMENT NO. 4, dated as of May 17,
2005 (this “ Amendment ”), in respect of
the Credit Agreement (as in effect immediately prior to the
effectiveness of this Amendment, including, without limitation,
after giving effect to Amendment Nos. 1, 2 and 3, dated as of May
28, 2004, October 12, 2004 and March 18, 2005, respectively, the
“ Credit Agreement ”), dated as of March
8, 2004, among Allegheny Energy, Inc. (the “
Borrower ”), the Lenders, the Issuing Banks and
Citicorp North America, Inc., as Administrative Agent. Capitalized
terms not otherwise defined herein shall have the same meanings as
set forth in the Credit Agreement.
PRELIMINARY
STATEMENTS
(1) The Borrower has requested that
the Required Lenders agree to modify the definition of
“Borrower Interest Expense” in Section 1.01 of the
Credit Agreement as set forth in this Amendment.
SECTION 1. Amendment .
Subject to the satisfaction of the conditions precedent set forth
in Section 2, the Required Lenders hereby agree to amend the
definition of “Borrower Interest Expense” in Section
1.01 of the Credit Agreement by inserting the text that appears
below as bolded and underlined text:
“ Borrower Interest
Expense ” means, for any period, (a) the sum of,
without duplication, (i) the interest expense (including imputed
interest expense in respect of Capitalized Leases) of the Borrower
for such period (including all commissions, discounts and other
fees and charges owed by the Borrower with respect to letters of
credit and bankers’ acceptance financing), in each case
determined in accordance with GAAP, plus (ii) any interest
accrued during such period in respect of Debt of the Borrower that
is required to be capitalized rather than included in interest
expense of the Borrower for such period in accordance with GAAP,
minus (b) to the extent included in such interest expense
referred to in clause (a)(i) for such period, amounts attributable
to the amortization of financing costs and non-cash amounts
attributable to the amortization of debt discounts in respect of
Debt of the Borrower ; provided,
however, that neither (i) any payments of up to $47,300,000 in
the aggregate made to holders of the 11
7 / 8 % Mandatorily Convertible Trust
Preferred Securities (the “Preferred Securities”) of
Allegheny Capital Trust I in connection with the consummation of
the tender for, and subsequent redemption of, the Preferred
Securities and the corresponding tender and subsequent redemption
of the Convertible Bonds and exercise of warrants attached thereto
for shares of common stock par value $1.25 per share of the
Borrower nor (ii) accrued interest and interest paid under the
summary judgment granted against the Borrower in the Merrill Lynch
Litigation, shall be included in any determination of the interest
expense of the Borrower . For purposes of the foregoing,
interest expense shall be determined after giving effect to any net
payments made or received by the Borrower with respect to interest
rate Hedging Agreements.
SECTION 2. Conditions of
Effectiveness . This Amendment shall become effective when, and
only when, the Administrative Agent shall have received
counterparts of this Amendment executed by the Borrower and the
Required Lenders or, as to any of the Lenders, advice satisfactory
to the Administrative Agent that such Lender has executed this
Amendment. 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) It is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Maryland.
(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 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. It is not in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other
instrument, the violation or breach of which could 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 Loan
Document
