EXHIBIT 10.1
EXECUTION COPY
$700,000,000
CREDIT AGREEMENT
Dated as of June 16, 2005
Among
ALLEGHENY ENERGY, INC.,
and
ALLEGHENY ENERGY SUPPLY COMPANY, LLC,
as Borrowers
and
THE INITIAL LENDERS AND INITIAL ISSUING BANK NAMED HEREIN,
as Initial Lenders and Initial Issuing Bank
and
CITICORP NORTH AMERICA, INC.,
as Administrative Agent
_______________________________________________________________________________
CITIGROUP GLOBAL MARKETS INC.,
THE
BANK OF NOVA SCOTIA,
as Joint Lead Arranger and
as Joint Lead Arranger,
Joint Book Runner
Joint Book Runner and
Syndication Agent
BANC OF AMERICA SECURITIES
CREDIT SUISSE, PNC
CAPITAL MARKETS, INC.,
LLC, as Joint Book Runner
CAYMAN ISLANDS
as Joint Book Runner
BANK OF AMERICA, N.A.,
BRANCH,
PNC BANK, NATIONAL
as Co-Documentation Agent
as Joint
Book Runner
ASSOCIATION,
and Co-Documentation as Co-Documentation
Agent
Agent
_______________________________________________________________________________
<PAGE>
T A B L E O F
C O N T E N T
S
Section
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined
Terms...........................................2
SECTION 1.02. Principles of
Interpretation...................................35
SECTION 1.03. Letter of
Credit...............................................36
SECTION 1.04. Joint and Several Obligations
of AYE...........................36
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND LETTERS OF CREDIT
SECTION 2.01. The
Advances...................................................37
(a) Revolving
Advance..........................................37
(b) Term
Advance...............................................37
(c)
Continuance of the Existing L/Cs...........................38
(d) AYE
Letters of Credit......................................38
(e) AESC
Indirect Letters of Credit............................38
(f) AESC
Direct Letters of Credit..............................39
(g) Letters of
Credit Generally................................39
SECTION 2.02. Making the
Advances............................................40
SECTION 2.03. Issuance of Letters of
Credit; Drawings
and Reimbursements; Auto-Extension Letters
of Credit; Funding of Participations.......................42
(a) Procedures
for Issuance and Amendment of Letters
of Credit; Auto-Extension Letters of Credit................42
(b) Drawings
and Reimbursements; Funding of Participations.....43
(c) Repayment
of Participations................................45
(d) Role of
Issuing Bank.......................................45
(e) Cash
Collateral............................................46
(f)
Applicability of ISP and UCP...............................46
(g) Conflict
with Issuer Documents.............................47
(h) Letters of
Credit Issued for Subsidiaries..................47
(i) Letter of
Credit Reports...................................47
(j)
Obligations Absolute.......................................47
SECTION 2.04. Repayment of
Advances..........................................48
SECTION 2.05. Termination or Reduction of
the Commitments....................48
(a)
Optional...................................................48
(b)
Mandatory..................................................48
SECTION 2.06.
Prepayments....................................................49
(a)
Optional...................................................49
(b)
Mandatory..................................................49
(c) Other
Amounts..............................................50
SECTION 2.07.
Interest.......................................................50
(a) Scheduled
Interest.........................................50
(b) Default
Interest...........................................50
(c) Notice of
Interest Period and Interest Rate................51
SECTION 2.08. Fees 51
(a) Commitment
Fee.............................................51
(b) Letter of
Credit Fees......................................51
(c) Fronting
Fee and Documentary and Processing
Charges Payable to Issuing Bank, Etc.......................51
(d) Agent
Fees.................................................52
SECTION 2.09.
Illegality.....................................................52
SECTION 2.10. Interest
Elections.............................................52
(a)
Optional...................................................52
(b)
Mandatory..................................................53
SECTION 2.11. Increased Costs,
Etc...........................................54
SECTION 2.12. Payments and
Computations......................................55
SECTION 2.13. Taxes 56
SECTION 2.14. Evidence of
Debt...............................................59
SECTION 2.15. Use of
Proceeds................................................60
ARTICLE III
CONDITIONS TO BORROWING
SECTION 3.01. Conditions Precedent to the
Initial Borrowing..................60
SECTION 3.02. Conditions Precedent to Each
Borrowing and L/C
Credit
Extension...............................................63
SECTION 3.03. Determinations Under Sections
3.01 and 3.02....................64
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and
Warranties of the Borrowers................64
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants of the
Borrowers.........................69
(a) Compliance
with Laws.......................................69
(b) Compliance
with Environmental Laws.........................69
(c)
Governmental Approvals.....................................69
(d) Payment of
Taxes, Etc......................................69
(e)
Insurance..................................................70
(f)
Preservation of Corporate Existence, Etc...................70
(g) Visitation
Rights..........................................70
(h) Keeping of
Books...........................................70
(i)
Maintenance of Properties, Etc.............................70
(j)
Transactions with Affiliates...............................70
(k)
Preparation of Environmental Reports.......................71
(l)
Maintenance of Ownership of Subsidiaries...................71
(m) Use of
Proceeds............................................72
SECTION 5.02. Negative Covenants of
AYE......................................72
(a) Liens,
Etc.................................................72
(b)
Debt.......................................................74
(c) Change in
Nature of Business...............................76
(d) Mergers,
Etc...............................................76
(e) Sales,
Etc., of Assets.....................................77
(f)
Investments in Other Persons...............................79
(g)
Restricted
Payments........................................82
(h) Payment
Restrictions Affecting AYE and its Subsidiaries....82
(i)
Sale-Leaseback Transactions................................84
(j) Accounting
Changes.........................................84
(k)
Prepayments, Etc., of Debt.................................84
(l)
Speculative Transactions...................................84
(m) Compliance
with ERISA......................................84
SECTION 5.03. Reporting Covenants of
AYE.....................................85
(a) Default
Notices............................................85
(b) Annual
Financials..........................................85
(c) Quarterly
Financials.......................................85
(d)
Budget.....................................................86
(e)
Litigation.................................................86
(f)
ERISA......................................................86
(i) ERISA
Events and ERISA Reports.............................86
(g)
Environmental Conditions...................................87
(h)
Other
Information..........................................87
SECTION 5.04. Financial
Covenants............................................87
(a) Interest
Coverage Ratio....................................88
(b) Leverage
Ratio.............................................88
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of
Default..............................................88
SECTION 6.02. Actions in Respect of Letters
of Credit upon Default...........91
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and
Action.......................................91
SECTION 7.02. Administrative Agent's
Reliance, Etc...........................91
SECTION 7.03. CNAI, CGMI, Citibank, BNS,
BAS, BofA, CSCI,
PCM, PNC and
Affiliates........................................92
SECTION 7.04. Lender Party Credit
Decision...................................92
SECTION 7.05.
Indemnification................................................92
SECTION 7.06. Successor Administrative
Agent.................................94
SECTION 7.07.
Liability......................................................94
SECTION 7.08. Treatment of
Lenders...........................................95
SECTION 7.09.
Miscellaneous..................................................95
(a)
Instructions...............................................95
(b)
No
Obligation..............................................95
SECTION 7.10. Arranger
Parties...............................................95
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments,
Etc................................................96
SECTION 8.02. Notices,
Etc...................................................96
SECTION 8.03. No Waiver,
Remedies............................................98
SECTION 8.04. Costs and
Expenses.............................................98
SECTION 8.05. Right of
Set-off..............................................100
SECTION 8.06. Binding
Effect................................................100
SECTION 8.07. Assignments and
Participations................................100
SECTION 8.08. Execution in
Counterparts.....................................105
SECTION 8.09. Jurisdiction,
Etc.............................................105
SECTION 8.10. Governing
Law.................................................105
SECTION 8.11. Waiver of Jury
Trial..........................................105
SECTION 8.12.
Confidentiality...............................................105
SECTION 8.13. Benefits of
Agreement.........................................107
SECTION 8.14.
Severability..................................................107
SECTION 8.15.
Limitations...................................................107
SECTION 8.16.
Survival......................................................107
SECTION 8.17. USA Patriot Act
Notice........................................108
<PAGE>
SCHEDULES
Schedule I
- Existing
AYE Debt, Existing Lenders and Existing
AYE Debt Documents
Schedule II -
Commitments and Applicable Lending Offices
Schedule 1.01(a) - Existing
L/Cs
Schedule 3.01(b) - Disclosed
Litigation
Schedule 4.01(c) -
Governmental Approvals and Filings
Schedule 4.01(f) - Disclosed
Information
Schedule 4.01(k) - Certain
Environmental Matters
Schedule 4.01(n) - Existing
Debt
Schedule 4.01(o) - Existing
Liens
Schedule 4.01(p) -
Investments
Schedule 5.01(j) - Affiliate
Transactions
EXHIBITS
Exhibit A-1 -
Form of
Revolving Note
Exhibit A-2 - Form of
Term Note
Exhibit B
- Form of
Notice of Borrowing
Exhibit C
- Form of
Assignment and Acceptance
<PAGE>
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of June 16, 2005 (as amended, modified
or
otherwise supplemented from time to time in
accordance with its terms, this
"Agreement"), among ALLEGHENY ENERGY, INC.,
a Maryland corporation ("AYE"),
ALLEGHENY ENERGY SUPPLY COMPANY, LLC, a
Delaware limited liability company
("AESC", and together with AYE,
collectively, the "Borrowers"), the banks,
financial institutions and other
institutional lenders listed on the signature
pages hereof as the Initial Lenders (the
"Initial Lenders"), THE BANK OF NOVA
SCOTIA ("BNS"), as the initial issuing bank
for the letters of credit pursuant
to this Agreement (in such capacity, the
"Initial Issuing Bank" and, together
with the Initial Lenders, the "Initial
Lender Parties"), Joint Lead Arranger,
Joint Book Runner and Syndication Agent,
CITIGROUP GLOBAL MARKETS INC.
("CGMI"), as Joint Lead Arranger and Joint
Book Runner, BANC OF AMERICA
SECURITIES LLC ("BAS"), as Joint Book
Runner, BANK OF AMERICA, N.A. ("BofA"),
as Co-Documentation Agent, CREDIT SUISSE,
Cayman Islands Branch ("CSCI"), as
Joint Book Runner and Co-Documentation
Agent, PNC CAPITAL MARKETS, INC.
("PCM"), as Joint Book Runner, PNC BANK,
NATIONAL ASSOCIATION ("PNC"), as
Co-Documentation Agent, and CITICORP NORTH
AMERICA, INC. ("CNAI"), not in its
individual capacity except as expressly set
forth hereunder but solely as
administrative agent (together with any
successor administrative agent
appointed pursuant to Article VII, the
"Administrative Agent") for the Lender
Parties (as hereinafter defined).
PRELIMINARY STATEMENTS
(1) AYE is indebted to certain banks and financial institutions
(the
"Existing Lenders") pursuant to that
certain credit agreement dated as of March
8, 2004 (as amended through the date
hereof, the "Existing Credit Agreement"),
and the aggregate principal amount owed by
AYE, if any, as of the date hereof
to each Existing Lender under the Existing
Credit Agreement is set forth in
Part A of Schedule I opposite the name of
such Existing Lender (all such
amounts, collectively, the "Existing AYE
Debt").
(2) The Existing L/Cs (as hereinafter defined) are outstanding
and
shall be continued under this Agreement as
set forth hereunder.
(3) The Borrowers have requested that the Initial Lender
Parties
establish a senior unsecured revolving
credit facility in the aggregate amount
of $400,000,000 in favor of the Borrowers,
with up to (a) the full amount
thereof to be made available to AYE in the
form of Revolving Advances (as
hereinafter defined) or one or more Letters
of Credit (as hereinafter defined)
issued at the request of AYE on behalf of
itself or any of its Subsidiaries (as
hereinafter defined), including the AESC
Companies (as hereinafter defined);
provided that the face amount of all
outstanding Letters of Credit issued at
the request of AYE on behalf of AESC or any
of AESC's Subsidiaries will not
exceed $125,000,000 in the aggregate and
(b) $50,000,000 thereof to be made
available to AESC in the form of Revolving
Advances or one or more Letters of
Credit issued at the request of AESC on
behalf of AESC or any of its
Subsidiaries; provided that (i) the
principal amount of all Revolving Advances
made to AESC, together with the face amount
of all Letters of Credit issued at
the request of AESC, in each case
outstanding at any time shall not exceed
$50,000,000, (ii) no Revolving Advance
shall be made to, or a Letter of Credit
issued at the request of, AESC unless AYE
has a minimum of $100,000,000 in pro
forma undrawn availability under the
Revolving Facility (as hereinafter
defined) and (iii) AYE is jointly and
severally liable for all Revolving
Advances made to and Letters of Credit
issued on behalf of, or at the request
of, AESC. The Initial Lender Parties have
indicated their willingness to
provide such financing to the Borrowers on
the terms and conditions of this
Agreement and the other Loan Documents (as
hereinafter defined).
(4) AYE has also requested that the Initial Lender Parties
establish a
senior unsecured term credit facility in
the aggregate amount of $300,000,000
in favor of AYE. The Initial Lender Parties
have indicated their willingness to
provide such financing to AYE on the terms
and conditions of this Agreement and
the other Loan Documents (as hereinafter
defined).
(5) The proceeds of the Revolving Facility shall be used (a) on
the
Closing Date (as hereinafter defined) to
(i) refinance the aggregate principal
amount outstanding under the Existing
Credit Agreement and (ii) continue the
Existing L/Cs under this Agreement, and (b)
after the Closing Date, to provide
working capital for AYE and its
Subsidiaries, including AESC.
(6) The proceeds of the Term Facility (as hereinafter defined)
shall
be used to refinance the aggregate
principal amount outstanding under the 7.75%
Notes (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and of the
mutual
covenants and agreements contained herein,
the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the
following terms shall have the following
meanings:
"1940 Act" means the Investment Company Act of 1940, as
amended.
"7.75% Notes" means the 7.75% Notes due August 1, 2005 issued
by
Allegheny
Energy, Inc. pursuant to that certain Indenture, dated as of
July 26, 2000,
between Allegheny Energy, Inc. and Bank One Trust Company
N.A., as
Trustee.
"Act" has the meaning specified in Section 8.17.
"Administrative Agent" has the meaning specified in the recital
of
parties to this
Agreement.
"Administrative Agent's Account" means the account of the
Administrative
Agent maintained by the Administrative Agent with Citibank,
at its office at
399 Park Avenue, New York, New York (ABA No. 021000089),
Account No.
36852248, Reference: Allegheny Energy, Inc., or such other
account as the
Administrative Agent shall specify in writing to the
Borrowers and
each of the Lender Parties.
"Advance" means a Revolving Advance or a Term Advance, as the
context
may require.
"AESC" has the meaning specified in the recital of parties to
this
Agreement.
"AESC Amended and Restated Credit Agreement" means that certain
Amended and
Restated Credit Agreement, dated as of October 28, 2004, among
AESC, the other
Persons referred to therein as Loan Parties, the financial
institutions
referred to therein as Lenders, Citicorp North America, Inc.,
as
Administrative Agent and Citibank, N.A., as Collateral Agent
and
Intercreditor
Agent.
"AESC Amended and Restated Security and Intercreditor Agreement"
means
that certain
Amended and Restated Security and Intercreditor Agreement
among AESC, the
other Persons referred to therein as Grantors, Citicorp
North America,
Inc., as Administrative Agent, Law Debenture Trust Company
of New York, as
Indenture Trustee, and Citibank, N.A., as Collateral
Agent,
Intercreditor Agent and Depositary Bank, dated as of February
21,
2003, as amended
and restated in its entirety on March 8, 2004 and as
further amended
and restated in its entirety on October 28, 2004.
"AESC Companies" means AESC and its Subsidiaries.
"AESC Direct Advance and L/C Sublimit" means $50,000,000. The
AESC
Direct Advance
and L/C Sublimit is part of, and not in addition to, the
Revolving
Facility.
"AESC Direct L/C Credit Extension" means, with respect to any
AESC
Direct Letter of
Credit, the issuance thereof or extension of the expiry
date thereof, or
the increase of the amount thereof.
"AESC Direct L/C Obligations" means, as at any date of
determination,
the aggregate
undrawn amount of all outstanding AESC Direct Letters of
Credit plus the
aggregate of all Unreimbursed Amounts with respect to AESC
Direct Letters
of Credit, including all L/C Borrowings under AESC Direct
Letters of
Credit. For all purposes of this Agreement, if on any date of
determination an
AESC Direct Letter of Credit has expired by its terms but
any amount may
still be drawn thereunder by reason of the operation of
Rule 3.14 of the
ISP, such AESC Direct Letter of Credit shall be deemed to
be "outstanding"
in the amount so remaining available to be drawn.
"AESC Direct Letters of Credit" means letters of credit issued by
any
Issuing Bank
pursuant to Section 2.01(f).
"AESC Indirect L/C Credit Extension" means, with respect to any
AESC
Indirect Letter
of Credit, the issuance thereof or extension of the expiry
date thereof, or
the increase of the amount thereof.
"AESC Indirect L/C Obligations" means, as at any date of
determination,
the aggregate undrawn amount of all outstanding AESC
Indirect Letters
of Credit plus the aggregate of all Unreimbursed Amounts
with respect to
AESC Indirect Letters of Credit, including all L/C
Borrowings under
AESC Indirect Letters of Credit. For all purposes of this
Agreement, if on
any date of determination an AESC Indirect Letter of
Credit has
expired by its terms but any amount may still be drawn
thereunder by
reason of the operation of Rule 3.14 of the ISP, such AESC
Indirect Letter
of Credit shall be deemed to be "outstanding" in the
amount so
remaining available to be drawn.
"AESC Indirect L/C Sublimit" means $125,000,000. The AESC Indirect
L/C
Sublimit is part
of, and not in addition to, the Revolving Facility.
"AESC Indirect Letters of Credit" means letters of credit issued
by
any Issuing Bank
pursuant to Section 2.01(e).
"AESC Intercreditor Agreement" means that certain Intercreditor
Agreement, dated
as of February 21, 2003, among Citibank as AYE Lender
Agent, New Money
Lender Agent, Refinancing Lender Agent and Intercreditor
Agent, BNS, as
Springdale Lender Agent, Law Debenture Trust Company of New
York, as
Indenture Trustee, and the Borrowers, as amended, modified or
otherwise
supplemented from time to time in accordance with its terms.
"AESC Loan Documents" means the AESC Amended and Restated
Credit
Agreement and
the AESC Amended and Restated Security and Intercreditor
Agreement, as
each may be amended, amended and restated, supplemented or
otherwise
modified from time to time.
"AESC Sublimits" means the AESC Indirect L/C Sublimit and the
AESC
Direct Advance
and L/C Sublimit.
"Affiliate" means, as to any Person, any other Person that,
directly
or indirectly,
controls, is controlled by or is under common control with
such Person or
is a director or officer of such Person. For purposes of
this definition,
the term "control" (including the terms "controlling",
"controlled by"
and "under common control with") of a Person means the
possession,
direct or indirect, of the power to vote 10% or more of the
Voting Interests
of such Person or to direct or cause the direction of the
management and
policies of such Person, whether through the ownership of
Voting
Interests, by contract or otherwise.
"AGC" means Allegheny Generating Company, a Virginia
corporation.
"Agent Parties" has the meaning set forth in Section 8.02(d).
"Agreement" has the meaning set forth in the recital of the parties
to
this
Agreement.
"Agreement Value" means, for each Hedge Agreement, on any date
of
determination,
an amount determined by AYE in good faith equal to: (a) in
the case of a
Hedge Agreement documented pursuant to the ISDA Master
Agreement, the
amount, if any, that would be payable by any Borrower or
any Subsidiary
of any Borrower to its counterparty to such Hedge Agreement
pursuant to the
terms of such Hedge Agreement, as if (i) such Hedge
Agreement was
being terminated early on such date of determination, (ii)
such Borrower or
Subsidiary was the sole "Affected Party", and (iii) such
Borrower or
Subsidiary was the sole party determining such payment amount
(with AYE making
such determination pursuant to the provisions of the ISDA
Master Agreement
or the Hedge Agreement (whichever is applicable)); or (b)
in the case of a
Hedge Agreement traded on an exchange, the mark-to-market
value of such
Hedge Agreement, which will be the unrealized loss on such
Hedge Agreement
(after any netting permitted pursuant to the terms of such
Hedge Agreement
(including any netting across different Hedge Agreements
and ISDA Master
Agreements to the extent permitted by contract)) to the
relevant
Borrower or any Subsidiary of any Borrower party to such Hedge
Agreement
determined by AYE in good faith based on the settlement price
of
such Hedge
Agreement on such date of determination, or (c) in all other
cases, the
mark-to-market value of such Hedge Agreement, which will be the
unrealized loss
on such Hedge Agreement (after any netting permitted
pursuant to the terms
of such Hedge Agreement (including any netting
across different
Hedge Agreements and ISDA Master Agreements to the extent
permitted by
contract)) to the relevant Borrower or Subsidiary of any
Borrower party
to such Hedge Agreement, if any, as determined by AYE in
accordance with
the terms of such Hedge Agreement or, if such Hedge
Agreement does
not provide a methodology for such determination, the
amount, if any,
by which (i) the present value of the future cash flows to
be paid by such
Borrower or Subsidiary exceeds (ii) the present value of
the future cash
flows to be received by such Borrower or Subsidiary
pursuant to such
Hedge Agreement; capitalized terms used and not otherwise
defined in this
definition shall have the respective meanings set forth in
the above
described ISDA Master Agreement.
"Annualization Factor" means, on any date of determination, (a)
if
only one fiscal
quarter has elapsed since July 1, 2005, four, (b) if only
two fiscal
quarters have elapsed since July 1, 2005, two and (c) if only
three fiscal
quarters have elapsed since July 1, 2005, four thirds.
"Applicable Law" means, with respect to any Person, any and all
laws,
statutes, regulations,
rules, orders, injunctions, decrees, writs,
determinations,
awards and judgments issued by any Governmental Authority
applicable to
such Person, including all Environmental Laws.
"Applicable Lending Office" means, with respect to each Lender
Party,
such Lender
Party's Domestic Lending Office in the case of a Base Rate
Advance and such
Lender Party's Eurodollar Lending Office in the case of a
Eurodollar Rate
Advance.
"Applicable Margin" means, as of any date, a percentage per
annum
determined by
reference to the Public Debt Rating in effect on such date
as set forth
below:
======================================================================
Applicable
Applicable
Applicable
Public Debt
Margin for
Margin for
Margin for
Rating
Base Rate Eurodollar Rate
Letters of
S&P/Moody's
Advances
Advances
Credit
======================================================================
Level 1
0.50%
1.50%
1.50%
BB/Ba2
or above
----------------------------------------------------------------------
Level 2
0.75%
1.75%
1.75%
BB-/Ba3
----------------------------------------------------------------------
Level 3
1.00%
2.00%
2.00%
B+/B1
----------------------------------------------------------------------
Level 4
1.50%
2.50%
2.50%
Below B+/B1
=======================================================================
"Appropriate Lender" means, at any time, with respect to (a)
the
Revolving
Facility, the Borrowing Limit or either AESC Sublimit, a
Revolving
Lender, and (b) the Term Facility, a Term Lender.
"Approved Fund" means a Fund that is administered or managed by (a)
a
Lender, (b) an
Affiliate of a Lender or (c) a Person or an Affiliate of a
Person that
administers or manages a Lender.
"Arranger Parties" means CGMI, as Joint Lead Arranger and Joint
Book
Runner, BNS, as
Joint Lead Arranger, Joint Book Runner and Syndication
Agent, BAS, as
Joint Book Runner, BofA, as Co-Documentation Agent, CSCI,
as Joint Book
Runner and Co-Documentation Agent, PCM, as Joint Book
Runner, and PNC,
as Co-Documentation Agent.
"Assets" means, with respect to any Person, all or any part of
its
business,
property, rights, interests and assets, both tangible and
intangible
(including Equity Interests in any Person), wherever situated.
"Assignment and Acceptance" means an assignment and acceptance
entered
into by any
Lender Party and an Eligible Assignee, and accepted by the
Administrative
Agent, in accordance with Section 8.07 and in substantially
the form of
Exhibit C.
"Auto-Extension Letter of Credit" has the meaning specified in
Section
2.03(a)(iii).
"AYE" has the meaning specified in the recital of parties to
this
Agreement.
"AYE Funds Flow" means, for any period, the sum for the related
period
of (a) cash
dividends received by AYE from the Regulated Subsidiaries and
AESC, less (b)
any cash equity contributions made by AYE to any
Subsidiaries,
plus (c) Net Cash Proceeds received by AYE from the sale or
issuance of any
Equity Interests, plus (d) AYE's interest income, less (e)
Capital
Expenditures of AYE, less (f) operating expenses of AYE,
excluding
AYE Interest
Expense and income tax expense, plus (g) Litigation Proceeds
received by AYE,
plus (h) AYE Sales Proceeds.
"AYE 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 AYE for such period (including all
commissions,
discounts and other fees and charges owed by AYE 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 AYE that is required to be capitalized
rather than
included in interest expense of AYE 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 AYE;
provided,
however, that
neither (i) any payments of up to $47,300,000 in the
aggregate made
to holders of the 11?% 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 AYE nor
(ii) accrued interest and interest paid under the summary
judgment granted
against AYE in the Merrill Lynch Litigation, shall be
included in any
determination of the interest expense of AYE. For purposes
of the
foregoing, interest expense shall be determined after giving
effect
to any net
payments made or received by AYE with respect to interest rate
Hedging
Agreements.
"AYE L/C Credit Extension" means, with respect to any AYE Letter
of
Credit, the issuance thereof or
extension of the expiry date thereof, or
the increase of
the amount thereof.
"AYE L/C Obligations" means, as at any date of determination,
the
aggregate
undrawn amount of all outstanding AYE Letters of Credit plus
the
aggregate of all
Unreimbursed Amounts with respect to AYE Letters of
Credit,
including all L/C Borrowings under AYE Letters of Credit. For
all
purposes of this
Agreement, if on any date of determination an AYE Letter
of Credit has
expired by its terms but any amount may still be drawn
thereunder by
reason of the operation of Rule 3.14 of the ISP, such AYE
Letter of Credit
shall be deemed to be "outstanding" in the amount so
remaining
available to be drawn.
"AYE Letters of Credit" means (a) the Existing L/Cs, as
continued
under this
Agreement on the Closing Date, and (b) any other Letters of
Credit issued by
any Issuing Bank pursuant to Section 2.01(d).
"AYE Sales Proceeds" means net cash proceeds received by AYE from
any
sale, transfer
or other disposition of any of AYE's assets.
"BAS" has the meaning specified in the recital of parties to
this
Agreement.
"Base Rate" means a fluctuating interest rate per annum in effect
from
time to time,
which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate; and
(b) 1/2 of 1% per annum above the Federal Funds
Rate.
"Base Rate Advance" means an Advance that bears interest as
provided
in Section
2.07(a)(i).
"Bath County" means the undivided forty percent (40%) interest
(constituting
1010 MW of pumped storage) owned by a Subsidiary of AYE in
the
hydroelectric power generating station located in Bath County,
Virginia.
"BofA" has the meaning specified in the recital of parties to
this
Agreement.
"BNS" has the meaning specified in the recital of parties to
this
Agreement.
"Borrowers" has the meaning specified in the recital of parties
to
this
Agreement.
"Borrowing Account" means, with respect to any Borrower, such
account
as such Borrower
shall specify in writing to the Administrative Agent.
"Borrowing" means a Revolving Borrowing or a Term Borrowing.
"Borrowing Limit" means, as of any time with respect to (a) AYE,
an
amount equal to
the aggregate of the Unused Commitments at such time, and
(b) AESC, the
AESC Direct Advance and L/C Sublimit minus (i) the aggregate
principal amount
of all outstanding Revolving Advances made to AESC at
such time and
(ii) the Outstanding Amount of all AESC Direct L/C
Obligations at
such time.
"Buffalo Reserve Project" means the development of property and
mineral rights
in Washington County, Commonwealth of Pennsylvania,
including (a)
the formation of a legal entity to pursue the development of
such property
and mineral rights, and (b) the entering into operating
agreements,
joint venture agreements, partnership agreements, working
interests,
royalty interests, mineral leases, processing agreements,
contracts for
sale, transportation or exchange agreements, unitization
agreements,
pooling agreements, area of mutual interest agreements,
production
sharing agreements or other similar or customary agreements,
transactions,
interests or arrangements, and Investments and expenditures
in connection
with the development of such property and mineral rights.
"Business Day" means a day of the year on which banks are not
required
or not
authorized by law to close in New York City and, if the
applicable
Business Day
relates to any Eurodollar Rate Advances, on which dealings
are carried on
in the London interbank market.
"Capital Expenditures" means, for any Person for any period, the
sum
of, without
duplication, all expenditures made, directly or indirectly, by
such Person
during such period (whether financed by cash or by Debt
(including
Obligations under Capitalized Leases) assumed or incurred to
fund, directly
or indirectly, such expenditures) for equipment, fixed
assets, real
property or improvements, or for replacements or
substitutions
therefor or additions thereto, that have been or should be,
in accordance with
GAAP, reflected as additions to property, plant or
equipment on a
balance sheet of such Person. For purposes of this
definition, the
purchase price of equipment that is purchased
simultaneously
with the trade-in of existing equipment or with insurance
proceeds shall
be included in Capital Expenditures only to the extent of
the gross amount
of such purchase price less the credit granted by the
seller of such
equipment for the equipment being traded in at such time or
the amount of
such proceeds, as the case may be.
"Capitalized Leases" means all leases that have been or should be,
in
accordance with
GAAP, recorded as capitalized leases.
"Cash Collateral Account" means a non-interest bearing
securities
account opened,
or to be opened by, the Administrative Agent and in which
a Lien has been
granted to the Administrative Agent for the benefit of
each Revolving
Lender and each Issuing Bank pursuant to documentation in
form and
substance satisfactory to the Administrative Agent and each
Issuing Bank
(which documents are hereby consented to by the Revolving
Lenders) to the
extent that any Letter of Credit is required to be Cash
Collateralized
in accordance with this Agreement.
"Cash Collateralize" means to pledge and deposit with or deliver
to
the
Administrative Agent, for the benefit of each Issuing Bank and
each
Revolving
Lender, as collateral for the L/C Obligations, cash or deposit
account
balances.
"Cash Equivalents" means any of the following, to the extent owned
by
any Borrower or
any of its Subsidiaries free and clear of all Liens and,
except in the
case of clause (d) below, having a maturity of not greater
than one year
from the date of issuance thereof: (a) readily marketable
direct
obligations of the Government of the United States or any agency
or
instrumentality
thereof or obligations unconditionally guaranteed by the
full faith and
credit of the Government of the United States, (b)
certificates of
deposit, time deposits, eurodollar deposits and bankers
acceptances with
any commercial bank that is a Lender Party or a member of
the Federal
Reserve System, is organized under the laws of the United
States or any
State thereof and has combined capital and surplus of at
least
$500,000,000; provided that the aggregate principal amount of
certificates of
deposit, time deposits, eurodollar time deposits and
bankers
acceptances of any one bank shall not exceed $50,000,000 at any
one time, (c)
commercial paper in an aggregate amount of no more than
$50,000,000 per
issuer outstanding at any time, issued by any corporation
organized under
the laws of any State of the United States and rated at
least "Prime-1"
(or the then equivalent grade) by Moody's or "A-1" (or the
then equivalent
grade) by S&P, or (d) mutual funds the sole investments of
which are the
cash equivalents identified in clauses (a) through (c) above
(but with a
remaining maturity of not greater than 13 months while being
held by the
applicable mutual fund) and repurchase obligations for any of
the cash
equivalents identified in clause (a) above.
"CERCLA" means the Comprehensive Environmental Response,
Compensation
and Liability
Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation
and Liability
Information System maintained by the U.S. Environmental
Protection
Agency.
"CGMI" has the meaning specified in the recital of parties to
this
Agreement.
"Change of Control" means the occurrence of any of the following:
(a)
any Person or
two or more Persons acting in concert shall have acquired
beneficial
ownership (within the meaning of Rule 13d-3 of the SEC under
the Securities
Exchange Act of 1934), directly or indirectly, of Voting
Interests of AYE
(or other securities convertible into such Voting
Interests)
representing 30% or more of the combined voting power of all
Voting Interests
of AYE; or (b) during any period of up to 24 consecutive
months,
commencing after the date of this Agreement, individuals who at
the beginning of
such 24-month period were directors of AYE (the "Original
Directors")
shall cease for any reason to constitute a majority of the
board of
directors of AYE (unless replaced by individuals nominated or
proposed by the
Original Directors); or (c) any Person or two or more
Persons acting
in concert shall have acquired by contract or otherwise, or
shall have
entered into a contract or arrangement that, upon consummation,
will result in
its or their acquisition of the power to exercise, directly
or indirectly, a
controlling influence over the management or policies of
AYE.
"Chief Financial Officer" of any Person means such Person's
chief
financial
officer or such other natural Person who is principally
responsible for
such Person's financial matters.
"Citibank" means Citibank, N.A.
"Closing Date" has the meaning specified in Section 3.01(a).
"Closing Date Transactions" has the meaning specified in
Section
3.01(a)(xiii).
"CNAI" has the meaning specified in the recital of parties to
this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from
time
to time, and the
regulations promulgated and rulings issued thereunder.
"Commitment" means, as to each Lender, such Lender's Revolving
Commitment or
Term Commitment, as the context may require.
"Commitment Fee Rate" means, as of any date, a percentage per
annum
determined by
reference to the Public Debt Ratings in effect on such date
as set forth
below:
===========================================
Public Debt Rating Commitment Fee
Rate
S&P/Moody's
===========================================
Level 1
0.250%
BBB-/Baa3
or above
-------------------------------------------
Level 2
0.300%
BB/Ba2 or BB+/Ba1
-------------------------------------------
Level 3
0.375%
BB-/Ba3
-------------------------------------------
Level 4
0.500%
B+/B1 and below
===========================================
"Communications" has the meaning specified in Section 8.02(b).
"Confidential Information" has the meaning specified in Section
8.12(a).
"Consolidated" refers to the consolidation of accounts in
accordance
with GAAP.
"Constituent Documents" means, with respect to any Person, (a)
the
articles or
certificate of incorporation, charter or other similar
organizational
document of such Person, (b) the by-laws or other similar
document of such
Person, (c) any certificate of designation or instrument
relating to the
rights of holders (including preferred shareholders) of
Equity Interests
in such Person and (d) any shareholder rights agreement
or other similar
agreement.
"Contest" means, with respect to the payment of Taxes or any
other
claims or
liabilities by any Person, to contest the validity or amount
thereof in good
faith by appropriate proceedings timely instituted and
diligently
pursued within the applicable statutory period and in
accordance with
Applicable Law; provided that the following conditions are
satisfied: (a)
such Person has posted a bond or other security in
accordance with
Applicable Law (if required) or has established adequate
reserves with
respect to the contested items in accordance with, and to
the extent
required by, GAAP; (b) during the period of such contest, the
enforcement of
any contested item is effectively stayed; (c) neither such
Person nor any
of its officers, directors or employees nor any Lender
Party, the
Administrative Agent or any of their respective officers,
directors or
employees is, or could reasonably be expected to become,
subject to any
criminal liability or sanction in connection with such
contested items;
and (d) no Lien relating to such contest attaches to any
Assets of such
Person and becomes enforceable against other creditors of
such Person.
"Contingent Obligation" means, with respect to any Person, any
Obligation or
arrangement of such Person to guarantee or intended to
guarantee any
Debt, leases, dividends or other payment Obligations
("primary
obligations") of any other Person (the "primary obligor") in
any
manner, whether
directly or indirectly, including (a) the direct or
indirect
guarantee, endorsement (other than for collection or deposit in
the ordinary
course of business), co-making, discounting with recourse or
sale with
recourse by such Person of the Obligation of a primary obligor,
(b) the Obligation to make
take-or-pay or similar payments, if required,
regardless of
nonperformance by any other party or parties to an agreement
or (c) any
Obligation of such Person, whether or not contingent, (i) to
purchase any
such primary obligation or any property constituting direct
or indirect
security therefor, (ii) to advance or supply funds (A) for the
purchase or
payment of any such primary obligation or (B) to maintain
working capital
or equity capital of the primary obligor or otherwise to
maintain the net
worth or solvency of the primary obligor, (iii) to
purchase
property, assets, securities or services primarily for the
purpose of
assuring the owner of any such primary obligation of the
ability of the
primary obligor to make payment of such primary obligation
or (iv)
otherwise to assure or hold harmless the holder of such primary
obligation
against loss in respect thereof. The amount of any Contingent
Obligation shall
be deemed to be an amount equal to the stated or
determinable
amount of the primary obligation in respect of which such
Contingent
Obligation is made (or, if less, the maximum amount of such
primary
obligation for which such Person may be liable pursuant to the
terms of the
instrument evidencing such Contingent Obligation) or, if not
stated or
determinable, the maximum reasonably anticipated liability in
respect thereof
(assuming such Person is required to perform thereunder),
as determined by
such Person in good faith.
"Continuation" and "Continued" each refer to a continuation of
Eurodollar Rate
Advances upon the expiration of the Interest Period
therefor as
Eurodollar Rate Advances of the same or a different Interest
Period pursuant
to Section 2.10.
"Conversion", "Convert" and "Converted" each refer to a conversion
of
Advances of one
Type into Advances of the other Type pursuant to Section
2.10 or
2.11.
"Convertible Bonds" means the convertible bonds issued pursuant to
the
Indenture, dated
as of July 24, 2003, between AYE and Wilmington Trust
Company, not in
its individual capacity, but solely as trustee.
"CSCI" has the meaning specified in the recital of parties to
this
Agreement.
"Debt" of any Person (the "obligor") means, without duplication,
(a)
all Obligations
of such obligor for or in respect of moneys borrowed or
raised (whether
or not for cash by whatever means (including acceptances,
deposits,
discounting, letters of credit, factoring (other than on a
non-recourse
basis), and any other form of financing which is recognized
in accordance
with GAAP in the obligor's financial statements as being in
the nature of a
borrowing or is treated as "off-balance" sheet financing;
(b) all
Obligations of the obligor evidenced by notes, bonds,
debentures
or other similar
instruments issued in connection with accounts payable
excluded
pursuant to the parenthetical in clause (c) below; (c) all
Obligations of
the obligor for the deferred purchase price of property or
services (other
than accounts payable within 90 days of being incurred
arising in the
ordinary course of such obligor's business and not more
than 90 days
past due and not subject to a Contest); (d) all Obligations
of such obligor
under conditional sale or other title retention agreements
relating to
property or assets acquired by such obligor (even though the
rights and
remedies of the seller or lender under such agreement in the
event of default
are limited to repossession or sale of such property);
(e) all
Obligations of such obligor under any securitization or
monetization
arrangement; (f) all Obligations of such obligor as lessee
under
Capitalized Leases; (g) all Obligations of the obligor,
contingent
or otherwise, of
the obligor under acceptance, letter of credit or similar
facilities other
than as issued (i) in connection with Obligations
excluded
pursuant to clause (b) above or the parenthetical in clause (c)
above or (ii) as
credit support for leases other than Capitalized Leases;
(h) all
Obligations of the obligor to purchase, redeem, retire, defease
or
otherwise make
any payments in respect of any Equity Interests in the
obligor or any
other Person or any warrants, rights or options to acquire
such capital
stock, valued, in the case of Redeemable Preferred Interests,
at the greater
of its voluntary or involuntary liquidation preference plus
accrued and
unpaid dividends; (i) all Obligations of the obligor in
respect of Hedge
Agreements; (j) all Contingent Obligations of the obligor
with respect to
Debt; and (k) all indebtedness and other payment
Obligations
referred to in clauses (a) through (j) above of another Person
secured by (or
for which the holder of such Debt has an existing right,
contingent or
otherwise, to be secured by) any Lien on property (including
accounts and contract
rights owned by the obligor), even though the
obligor has not
assumed or become liable for the payment of such
indebtedness or
other payment Obligations. For the avoidance of doubt, any
account payable
owed to AYE or any of its Subsidiaries by AYE or any of
its Subsidiaries
(an "internal obligor"), as the case may be, with respect
to an account
payable of the internal obligor owed to a Person other than
AYE or any of
its Subsidiaries that is payable within 90 days of being
incurred arising
in the ordinary course of such internal obligor's
business and not
more than 90 days past due and not subject to a Contest
shall not
constitute Debt.
"Debt for Borrowed Money" means Debt of the types specified in
(i)
clauses (a),
(b), (d), (e) and (f) of the definition of Debt and (ii) to
the extent
relating to Debt of the types specified in one or more of
clauses (a),
(b), (d), (e) and (f) of the definition of Debt, clauses (j)
and (k) thereof.
"Default" means any Event of Default or any event that would
constitute an
Event of Default but for the requirement that notice be
given or time
elapse or both.
"Disclosed Litigation" has the meaning specified in Section
3.01(b).
"Disclosed Matters" means the occurrence of any event in respect
of,
or effect upon
the business, condition (financial or otherwise),
operations,
performance, properties, assets, liabilities (actual or
contingent)
results of operation or prospects of AYE or AYE and its
Subsidiaries,
taken as a whole, which has been disclosed (a) pursuant to a
public filing by
AYE or its Subsidiaries with the SEC or (b) in writing to
the
Administrative Agent.
"Dollars" and "$" mean the lawful currency of the United States
of
America.
"Domestic Lending Office" means, with respect to any Lender Party,
the
office of such
Lender Party specified as its "Domestic Lending Office"
opposite its
name on Schedule II or in the Assignment and Acceptance
pursuant to
which it became a Lender Party, as the case may be, or such
other office of
such Lender Party as such Lender Party may from time to
time specify to
AYE and the Administrative Agent.
"Eligible Assignee" means (a) with respect to any Lender, (i)
any
other Lender;
(ii) an Affiliate of a Lender; (iii) an Approved Fund; (iv)
a commercial
bank organized under the laws of the United States, or any
State thereof,
and having a combined capital and surplus of at least
$500,000,000;
(v) a savings and loan association or savings bank organized
under the laws
of the United States, or any State thereof, and having a
combined capital
and surplus of at least $500,000,000; (vi) a commercial
bank organized
under the laws of any other country that is a member of the
OECD or has
concluded special lending arrangements with the International
Monetary Fund
associated with its General Arrangements to Borrow or a
political
subdivision of any such country, and having a combined capital
and surplus of
at least $500,000,000, so long as such bank is acting
through a branch
or agency located in the country in which it is organized
or another
country that is described in this clause (vi); (vii) the
central bank of
any country that is a member of the OECD; (viii) a finance
company,
insurance company or other financial institution or fund
(whether
a corporation,
partnership, trust or other entity) that is engaged in
making,
purchasing or otherwise investing in commercial loans in the
ordinary course
of its business and having a combined capital and surplus
of at least
$500,000,000; or (ix) any other Person approved by (A) to the
extent such
Person is to become an Eligible Assignee in respect of any
assignment of
any Revolving Commitment, any Revolving Advance, any L/C
Credit Extension
or any L/C Borrowing, the Issuing Bank(s) (each acting in
its sole
discretion) and the Administrative Agent (such consent not to
be
unreasonably
withheld or delayed) and, so long as no Default shall have
occurred and be
continuing, AYE (such approval not to be unreasonably
withheld or
delayed), and (B) to the extent such Person is to become an
Eligible
Assignee in respect of any assignment of any Term Commitment or
any Term
Advance, the Administrative Agent (such consent not to be
unreasonably
withheld) and, so long as no Default shall have occurred and
be continuing,
AYE (such approval not to be unreasonably withheld or
delayed), and
(b) with respect to any Issuing Bank, a Person that is an
Eligible
Assignee under subclause (iv) or (vi) (so long as such bank is
acting through a
branch or agency located in the United States) of clause
(a) of this
definition and is approved by the Administrative Agent and, so
long as no
Default shall have occurred and be continuing, AYE, such
approval, in
either case, not to be unreasonably withheld or delayed;
provided that
neither AYE nor any Affiliate of AYE shall qualify as an
Eligible
Assignee under this definition; and provided further that, for
the avoidance of
doubt, notwithstanding whether any Person constitutes an
"Eligible
Assignee", the consent of the Issuing Bank(s) under Section
8.07(a) shall be
required with respect to any assignment of any Revolving
Commitment, any
Revolving Advance, any L/C Credit Extension or any L/C
Borrowing.
"Environmental Action" means any action, suit, demand letter, claim
by
any Governmental
Authority, notice of non-compliance or violation, notice
of liability or
potential liability, investigation, proceeding, consent
order or consent
agreement relating to any Environmental Law,
Environmental
Permit or Hazardous Material or arising from alleged injury
or threat to
health and safety or the environment relating to any
Environmental
Law, including (a) by any governmental or regulatory
authority for
enforcement, cleanup, removal, response, remedial or other
actions or
damages and (b) by any governmental or regulatory authority or
third party for
damages, contribution, indemnification, cost recovery,
compensation or
injunctive relief.
"Environmental Control Property" has the meaning specified in
Section
5.02(e)(viii)(B).
"Environmental Control Property Securitization" has the meaning
specified in
Section 5.02(e)(viii)(B).
"Environmental Law" means any Federal, state, local or foreign
statute, law,
ordinance, rule, regulation, code, order, writ, judgment,
injunction,
decree or legally binding judicial or agency interpretation,
policy or
guidance relating to pollution or protection of the
environment,
health and
safety as it relates to Hazardous Materials or natural
resources,
including those relating to the use, handling, transportation,
treatment,
storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification
number, license
or other authorization required under any Environmental
Law.
"Equity Interests" means, with respect to any Person, shares of
capital stock of
(or other ownership or profit interests in) such Person,
warrants,
options or other rights for the purchase or other acquisition
from such Person
of shares of capital stock of (or other ownership or
profit interests in) such
Person, securities convertible into or
exchangeable for
shares of capital stock of (or other ownership or profit
interests in)
such Person, or warrants, rights or options for the purchase
or other
acquisition from such Person of such shares (or such other
interests),
other ownership or profit interests in such Person (including
partnership,
member or trust interests therein), whether voting or
nonvoting, and
whether or not such shares, warrants, options, rights or
other interests
are authorized or otherwise existing on any date of
determination.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as
amended from
time to time, and the regulations promulgated and rulings
issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV
of
ERISA is a
member of the controlled group of AYE or any of its
Subsidiaries, or
under common control with AYE or any of its Subsidiaries,
within the
meaning of Section 414 of the Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event,
within the
meaning of Section 4043(c) of ERISA, with respect to any Plan
unless the
30-day notice requirement with respect to such event has been
waived by the
PBGC or (ii) the requirements of Section 4043(b) of ERISA
apply with
respect to a contributing sponsor, as defined in Section
4001(a)(13) of
ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12)
or (13) of Section 4043(c) of ERISA is reasonably
expected to
occur with respect to such Plan within the following 30 days;
(b) the
application for a minimum funding waiver in accordance with
Section 412(d)
of the Code with respect to a Plan; (c) the provision by
the
administrator of any Plan of a notice of intent to terminate
such
Plan, pursuant
to Section 4041(a)(2) of ERISA (including any such notice
with respect to
a plan amendment referred to in Section 4041(e) of ERISA);
(d) the
cessation of operations at a facility of AYE or any of its
Subsidiaries or
any ERISA Affiliate in the circumstances described in
Section 4062(e)
of ERISA; (e) the withdrawal by AYE or any of its
Subsidiaries or
any ERISA Affiliate from a Multiple Employer Plan during a
plan year for
which it was a substantial employer, as defined in Section
4001(a)(2) of
ERISA; (f) a lien has been imposed under Section 302(f) of
ERISA with
respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the
provision of security to such Plan pursuant to Section 307
of ERISA; or (h)
the institution by the PBGC of proceedings to terminate a
Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or
condition
described in Section 4042 of ERISA that constitutes grounds for
the termination
of, or the appointment of a trustee to administer, such
Plan, provided,
however, that the occurrence of the event or condition
described in
Section 4042(a)(4) of ERISA shall be an ERISA Event only if
the PBGC has
notified AYE, any Subsidiary of AYE or any ERISA Affiliate
that it intends
to institute proceedings to terminate a Plan pursuant to
such
Section.
"Eurocurrency Liabilities" has the meaning specified in Regulation
D
of the Board of
Governors of the Federal Reserve System, as in effect from
time to
time.
"Eurodollar Lending Office" means, with respect to any Lender
Party,
the office of
such Lender Party specified as its "Eurodollar Lending
Office" opposite
its name on Schedule II or in the Assignment and
Acceptance
pursuant to which it became a Lender Party (or, if no such
office is
specified, its Domestic Lending Office), or such other office
of
such Lender
Party as such Lender Party may from time to time specify to
AYE and the
Administrative Agent.
"Eurodollar Rate" means, with respect to any Interest Period for
all
Eurodollar Rate
Advances comprising part of the same Borrowing, the rate
per annum
obtained by dividing (a) LIBOR for such Interest Period by (b)
a
percentage equal
to 1.00 minus the Eurodollar Rate Reserve Percentage.
"Eurodollar Rate Advance" means an Advance that bears interest
as
provided in
Section 2.07(a)(ii). "Eurodollar Rate Reserve Percentage" for
any Interest
Period for all Eurodollar Rate Advances comprising part of
the same
Borrowing means the reserve percentage applicable two Business
Days before the
first day of such Interest Period under regulations issued
from time to
time by the Board of Governors of the Federal Reserve System
(or any
successor) for determining the maximum reserve requirement
(including,
without limitation, any emergency, supplemental or other
marginal reserve
requirement) for a member bank of the Federal Reserve
System in New
York City with respect to liabilities or assets consisting
of or including
Eurocurrency Liabilities (or with respect to any other
category of
liabilities that includes deposits by reference to which the
interest rate on
Eurodollar Rate Advances is determined) having a term
equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing AYE Debt" has the meaning specified in Preliminary
Statement
(1) of this
Agreement.
"Existing Credit Agreement" has the meaning specified in
Preliminary
Statement (1) of
this Agreement.
"Existing Debt" means all Debt, as of the date hereof, of AYE and
its
Subsidiaries.
"Existing Lenders" has the meaning specified in Preliminary
Statement
(1) of this
Agreement.
"Existing L/Cs" means the letters of credit identified in
Schedule
1.01(a).
"Facility" means the Term Facility or the Revolving Facility, as
the
context may
require.
"Federal Funds Rate" means, for any period, a fluctuating
interest
rate per annum
equal for each day during such period to the weighted
average of the
rates on overnight Federal funds transactions with members
of the Federal
Reserve System arranged by Federal funds brokers, as
published for
such day (or, if such day is not a Business Day, for the
next preceding
Business Day) by the Federal Reserve Bank of New York, or,
if such rate is
not so published for any day that is a Business Day, the
average of the
quotations for such day for such transactions received by
the
Administrative Agent from three Federal funds brokers of
recognized
standing
selected by it.
"Fee Letters" means, collectively, (a) each fee letter, if any,
between AYE and
the Administrative Agent and (b) each fee letter, if any,
between AYE and
any Arranger Party.
"FERC" means the Federal Energy Regulatory Commission.
"Final Maturity Date" means the earlier of (a) the date of
termination
in whole of the
Commitments and the L/C Obligations pursuant to Section
2.05 or 6.01,
and (b) the fifth anniversary of the Closing Date.
"Fiscal Year" means a fiscal year of AYE and its Consolidated
Subsidiaries
ending on December 31 in any calendar year.
"FMB Debt" means, with respect to (a) MPC, Debt under bonds
issued
pursuant to the
indenture dated as of August 1, 1945, between MPC and
Citibank, N.A.
(ultimate successor to City Bank Farmers Trust Company), as
trustee, as
amended and supplemented by various supplemental indentures
from time to
time, and (b) PEC, Debt under bonds issued pursuant to the
indenture dated
as of October 1, 1944 between PEC, JPMorgan Chase Bank
(ultimate
successor to Chemical Bank & Trust Company), as corporate
trustee, and
Thomas J. Foley, as individual trustee, as amended and
supplemented by
various supplemental indentures from time to time.
"Form 10-K" has the meaning set forth in Section 4.01(g).
"Fronting Fee" has the meaning specified in Section 2.08(c).
"Fund" means any Person (other than a natural person) that is (or
will
be) engaged in
making, purchasing, holding or otherwise investing in
commercial loans
and similar extensions of credit in the ordinary course
of its business.
"GAAP" has the meaning specified in Section 1.02(c).
"Governmental Approvals" has the meaning specified in Section
4.01(c).
"Governmental Authority" means any national, state, county,
city,
town, village,
municipal or other de jure or de facto government
department,
commission, board, bureau, agency, authority or
instrumentality
of a country or any political subdivision thereof or any
regional
transmission authority organized under federal law, and any
Person
exercising executive, legislative, judicial, regulatory or
administrative
functions of or pertaining to any of the foregoing
entities,
including all commissions, boards, bureaus, arbitrators and
arbitration
panels, and any authority or other Person controlled by any of
the
foregoing.
"Granting Lender" has the meaning specified in Section 8.07(h).
"Hazardous Materials" means (a) petroleum or petroleum
products,
by-products or
breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon
gas and
(b) any other
chemicals, materials or substances designated, classified or
regulated as
hazardous or toxic or as a pollutant or contaminant under any
Environmental
Law.
"Hedge Agreements" means (a) any and all rate swap transactions,
basis
swaps, credit
derivative transactions, forward rate transactions,
commodity swaps,
commodity options, forward commodity contracts, equity or
equity index
swaps or options, bond or bond price or bond index swaps or
options or
forward bond or forward bond price or forward bond index
transactions,
interest rate options, forward foreign exchange
transactions,
cap transactions, floor transactions, collar transactions,
currency swap
transactions, cross-currency rate swap transactions,
currency
options, spot contracts, or any other similar transactions or
any
combination of
the foregoing (including any option to enter into any of
the foregoing),
whether or not any such transaction is governed by or
subject to any
master agreement, and (b) any and all transactions of any
kind, and the
related confirmations, which are subject to the terms and
conditions of,
or are governed by, any form of master agreement published
by the
International Swaps and Derivative Association, Inc., any
International
Foreign Exchange Master Agreement or any other master
agreement
(including such master agreement, together with any related
schedules, a
"Master Agreement") including any such obligations or
liabilities
under any Master Agreement.
"Honor Date" has the meaning specified in Section 2.03(b)(i).
"Hunlock Agreement" has the meaning specified in Section
3.01(a)(xiv).
"Hunlock Transaction" means the transactions to be entered into by
AYE
as a direct
result of either (a) the exercise of a certain put option by
UGI under the
Hunlock Agreement that will require Allegheny Energy Supply
Company Hunlock
Creek, LLC ("AESC Hunlock Creek") or any Affiliate thereof
to purchase from
Hunlock Creek Energy Ventures, an equal partnership
between UGI and
AESC Hunlock Creek (the "Hunlock Partnership"), a 48 MW
coal fired steam
electric generation facility known as the Hunlock Creek
Electric
Generating Station located in Hunlock Township, Commonwealth of
Pennsylvania
(the "Hunlock Coal Station"), a 44 MW combustion turbine
electric
generation facility located at the same site (the "Hunlock
CT"),
or both or (b)
the exercise of a certain call option by AESC Hunlock Creek
or any Affiliate
thereof under the Hunlock Agreement that will allow AESC
Hunlock Creek or
such Affiliate to purchase from the Hunlock Partnership
the Hunlock Coal
Station, the Hunlock CT or both.
"Indemnified Costs" has the meaning specified in Section
7.05(a).
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Information Memorandum" means the information memorandum dated
May,
2005 used by the
Lead Arrangers in connection with the syndication of the
Facilities.
"Initial Borrowing" means the initial Borrowing to be made on
the
Closing Date
which shall be or is comprised of (a) Revolving Advances and
(b) L/C Credit
Extensions pursuant to Section 2.01(c).
"Initial Issuing Bank" has the meaning specified in the recital
of
parties to this
Agreement.
"Initial Lender Parties" has the meaning specified in the recital
of
parties to this
Agreement.
"Initial Lenders" has the meaning specified in the recital of
parties
to this
Agreement.
"Insolvency Proceeding", with respect to any Person, means (a)
any
proceeding shall
be instituted against such Person seeking to adjudicate
it a bankrupt or
insolvent, or seeking liquidation, winding up,
reorganization,
arrangement, adjustment, protection, relief, or
composition of
it or its debts under any law relating to bankruptcy,
insolvency or
reorganization or relief of debtors, or seeking the entry of
an order for
relief or the appointment of a receiver, trustee or other
similar official
for it or for any substantial part of its property and
either such
proceeding shall remain undismissed or unstayed for a period
of 60
consecutive days or the entry by any competent Governmental
Authority of any
jurisdiction or a court having jurisdiction in the
premises of a decree
or order approving or ordering any of the actions
sought in such
proceeding (including the entry of an order for relief
against, or the
appointment of a receiver, trustee, custodian or other
similar official
for, it or any substantial part of its property); or (b)
commencement by
such Person of a voluntary case or proceeding under any
applicable
bankruptcy, insolvency, reorganization or other similar law or
of any other
case or proceeding to be adjudicated as bankrupt or
insolvent, or
the consent by such Person to the entry of a decree or order
for relief in
respect of such Person in an involuntary case or proceeding
under any
applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement
of any bankruptcy or insolvency case or
proceeding
against such Person, or the filing by such Person of a petition
or answer or
consent seeking reorganization or relief under any Applicable
Law; or consent
by such Person to the filing of such petition or to the
appointment of
or taking possession by a custodian, receiver, liquidator,
assignee,
trustee, sequestrator or other similar official of such Person
or of any
substantial part of the property of such Person, or the making
by such Person
of an assignment for the benefit of creditors or any other
marshalling of
the assets and liabilities of such Person, or the admission
by such Person
in writing of its inability to pay its debts generally as
they become due,
or the taking of corporate action by such Person in
furtherance of
any such action.
"Intangible Transition Property" has the meaning specified in
Section
5.02(e)(viii)(A).
"Interest Coverage Ratio" means at any date of determination,
the
ratio of (a) AYE
Funds Flow to (b) AYE Interest Expense for (i) if four or
more consecutive
fiscal quarters have elapsed since July 1, 2005, for the
period of four
consecutive fiscal quarters ending on such date, taken as
one accounting
period or (ii) if less than four consecutive fiscal
quarters have
elapsed since July 1, 2005, (A) with respect to AYE Funds
Flow, the period
of four consecutive fiscal quarters ending on such date,
taken as one
accounting period and (B) with respect to AYE Interest
Expense, for the
fiscal quarters that have elapsed since July 1, 2005,
taken as one
accounting period, provided that, in the case of clause (B)
only, AYE
Interest Expense shall be multiplied by the Annualization
Factor.
"Interest Period" means, for each Eurodollar Rate Advance
comprising
part of the same
Borrowing to any Borrower, the period commencing on the
date of such
Eurodollar Rate Advance or the date of the Conversion of any
Base Rate
Advance into such Eurodollar Rate Advance, and ending on the
last day of the
period selected by such Borrower pursuant to the
provisions below
and, thereafter, each subsequent period commencing on the
last day of the
immediately preceding Interest Period and ending on the
last day of the
period selected by such Borrower pursuant to the
provisions
below. The duration of each such Interest Period shall be one,
two, three or
six months or, if available at the time of selection to all
Lenders owed any
of the relevant Advances, nine or twelve months, as the
relevant
Borrower may, upon notice received by the Administrative Agent
not later than
11:00 a.m. (New York City time) on the third Business Day
prior to the
first day of such Interest Period, select; provided that:
(a)
no Borrower may select any Interest Period with respect to
any Eurodollar Rate Advance that ends after the date
specified in clause (b) of the definition of "Final Maturity
Date";
(b)
without prejudice to Section 2.10(a), Interest Periods
commencing on the same date for Eurodollar Rate Advances
comprising part of the same Borrowing shall be of the same
duration;
(c)
whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided that, if such extension
would cause the last day of such Interest Period to occur in
the next
following calendar month, the last day of such
Interest Period shall occur on the next preceding Business
Day; and
(d)
whenever the first day of any Interest Period occurs on a day
of
an initial calendar month for which there is no
numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Intralinks" means the digital internet workspace located at
http://www.intralinks.com.
"Investment" in any Person means any loan or advance to such
Person,
any purchase or
other acquisition of any Equity Interests or Debt or the
assets
comprising a division or business unit or a substantial part or
all
of the business
of such Person, any capital contribution to such Person or
any other direct
or indirect investment in such Person, including, without
limitation, any
acquisition by way of a merger or consolidation and any
arrangement
pursuant to which the investor incurs Debt of the types
referred to in
clause (i) or (j) of the definition of "Debt" in respect of
such Person.
Notwithstanding the foregoing, any intercompany loan or
account
receivable due to AYE or any of its Subsidiaries (a "payee") by
AYE or any of
its Subsidiaries (a "payor"), as the case may be, with
respect to an
account payable of a payor and owed to a Person other than
AYE or any of
its Subsidiaries that is payable within 90 days of being
incurred arising
in the ordinary course of such payor's business and not
more than 90
days past due and not subject to a Contest shall not
constitute an
Investment by such payee in such payor.
"ISDA Master Agreement" means the Master Agreement
(Multicurrency-Cross Border)
published by the International Swap and
Derivatives
Association, Inc.
"ISP" means, with respect to any Letter of Credit, the
"International
Standby
Practices 1998" published by the Institute of International
Banking Law
& Practice (or such later version thereof as may be in
effect
at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit,
the
Letter of Credit
Application, and any other document, agreement and
instrument
entered into by any Issuing Bank and the Related Borrower or in
favor of any
Issuing Bank and relating to any such Letter of Credit.
"Issuing Bank" means the Initial Issuing Bank, any Revolving
Lender
issuing Letters
of Credit hereunder and each Person that shall become an
Issuing Bank
hereunder pursuant to Section 8.07.
"Joint Venture" means, with respect to any Person, at any date,
any
other Person in
whom such Person directly or indirectly holds an
Investment
consisting of an Equity Interest and whose financial results
would not be
considered under GAAP with the financial results of such
Person on the
Consolidated financial statements of such Person, if such
statements were
prepared in accordance with GAAP as of such date.
"L/C Advance" means, with respect to each Revolving Lender,
such
Revolving
Lender's funding of its participation in any L/C Borrowing in
accordance with
its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a
drawing
under any Letter
of Credit which has not been reimbursed on the date when
made or
refinanced as a Borrowing.
"L/C Credit Extension" means any AYE L/C Credit Extension, AESC
Indirect L/C
Credit Extension or AESC Direct L/C Credit Extension.
"L/C Obligations" means any of the AYE L/C Obligations, AESC
Indirect
L/C Obligations
or AESC Direct L/C Obligations.
"Lead Arrangers" means CGMI and BNS, not in their respective
individual
capacities except as expressly set forth herein but solely as
lead
arrangers.
"Lender" means each Initial Lender and each Person that shall
become a
Lender hereunder
pursuant to Section 8.07.
"Lender Parties" means the Lenders and the Issuing Banks.
"Letter of Credit" means any AYE Letter of Credit, AESC
Indirect
Letter of Credit
or AESC Direct Letter of Credit.
"Letter of Credit Application" means an application and agreement
for
the issuance or
amendment of a Letter of Credit to be issued hereunder by
any Issuing Bank
in the form from time to time in use by such Issuing
Bank.
"Letter of Credit Expiration Date" means the day that is five
Business
Days prior to
the date specified in clause (b) of the definition of "Final
Maturity Date"
(or, if such day is not a Business Day, the next preceding
Business
Day).
"Letter of Credit Fee" has the meaning specified in Section
2.08(b).
"Leverage Ratio" means, as of any date of determination, the ratio
of
(a) Debt for
Borrowed Money of AYE to (b) AYE Funds Flow for the period of
four consecutive
fiscal quarters ending on such date, taken as one
accounting
period.
"LIBOR" means, for any applicable Interest Period with respect to
all
Eurodollar Rate
Advances comprising part of the same Borrowing, the
British Bankers'
Association Interest Settlement Rate per annum for
deposits in
Dollars for a period equal to such Interest Period appearing
on the display
designated as Page 3750 on the Dow Jones Markets Service
(or such other
page on that service or such other service designated by
the British
Banker's Association for the display of such Association's
Interest
Settlement Rates for Dollar deposits) as of 11:00 a.m. (London,
England time) on
the day that is two Business Days prior to the first day
of the Interest
Period or if such Page 3750 is unavailable for any reason
at such time,
the rate which appears on the Reuters Screen LIBOR 01 Page
as of such date
and such time; provided that if the Administrative Agent
determines that
the relevant foregoing sources are unavailable for the
relevant
Interest Period, LIBOR shall mean the rate of interest
determined
by the
Administrative Agent to be the average (rounded upward, if
necessary, to
the nearest 1/1000th of 1%) of the rates per annum at which
deposits in
Dollars are offered to the Administrative Agent two Business
Days preceding
the first day of such Interest Period by leading banks in
the London
interbank market as of 10:00 a.m. (New York City time) for
delivery on the
first day of such Interest Period, for the number of days
comprised
therein and in an amount comparable to the amount of the
Eurodollar Rate
Advance of CNAI (in its capacity as a Lender).
"Lien" means any lien, mortgage, deed of trust, pledge,
security
interest or
other charge or encumbrance of any kind, including the lien or
retained
security title of a conditional vendor and any easement, right
of
way or other
encumbrance on title to real property.
"Litigation Proceeds" means any cash received by or paid to any
Person
in connection
with any final settlement or judgment of any action, suit,
litigation or
similar proceeding involving such Person.
"Loan Documents" means this Agreement, the Notes, the Fee Letters
and
the Issuer
Documents.
"Margin Stock" has the meaning specified in Regulation U of the
Board
of Governors of
the Federal Reserve System, as in effect from time to
time.
"Material Adverse Change" means any material adverse change in
the
business,
financial condition, operations or properties of (a) AYE or (b)
AYE and its
Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a)
the
business,
financial condition, operations or properties of (i) AYE or
(ii)
AYE and its
Subsidiaries, taken as a whole, (b) the rights and remedies of
any Lender Party
under any Loan Document or (c) the ability of any
Borrower to
perform its Obligations under any Loan Document to which it is
or is to be a
party.
"Material Governmental Approvals" means those Governmental
Approvals
listed in Part A
of Schedule 4.01(c).
"Merrill Lynch Litigation" means that litigation arising out of
that
complaint filed
under the caption Merrill Lynch & Co., Inc., et al. v.
Allegheny
Energy, Inc., and Allegheny Energy, Inc., et al. v. Merrill
Lynch & Co.,
Inc., et al. (02 CV 7689 (HB)).
"Moody's" means Moody's Investors Service, Inc.
"Mountaineer Gas" means Mountaineer Gas Company, a West
Virginia
corporation.
"MPC" means Monongahela Power Company, an Ohio Corporation.
"MPC Preferred Stock" means MPC's $7.73 Cumulative Preferred Stock
and
all other
preferred stock issued by MPC from time to time.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section
4001(a)(3) of
ERISA, to which AYE or any of its Subsidiaries or any ERISA
Affiliate is
making or accruing an obligation to make contributions, or
has within any
of the preceding five plan years made or accrued an
obligation to
make contributions.
"Multiple Employer Plan" means a single employer plan, as defined
in
Section
4001(a)(15) of ERISA, that (a) is maintained for employees of
AYE
or any of its
Subsidiaries or any ERISA Affiliate and at least one Person
other than AYE,
its Subsidiaries and the ERISA Affiliates or (b) was so
maintained and
in respect of which AYE and any of its Subsidiaries or any
ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA
in the event
such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer
or other
disposition of any asset or property or the sale or issuance of
any Equity
Interests (including, without limitation, any capital
contribution) by
any Person, the aggregate amount of cash received from
time to time
(whether as initial consideration or through payment or
disposition of
deferred consideration or received from escrow) by or on
behalf of such
Person in connection with such transaction after deducting
therefrom only
(without duplication) the following (to the extent directly
and primarily
relating to such transaction): (a) reasonable and customary
brokerage
commissions, underwriting fees and discounts, legal, consultant
and advisor
fees, finder's fees and other similar fees and commissions,
(b) the amount
of taxes (or amounts owing pursuant to the Tax Allocation
Agreement)
payable in connection with or as a result of such transaction,
and (c) in the
case of any sale, lease, transfer or other disposition of
any asset or
property, (i) the amount of (A) any Debt secured by a prior
Lien on the
asset or property which is the subject of such sale, lease,
transfer or
other disposition or (B) Debt outstanding under the Pollution
Control Bonds
that is, in either case, repaid, redeemed or defeased upon
such disposition
as required pursuant to the terms of (1) the agreement or
instrument
governing such Debt or (2) any undertaking or agreement of any
Borrower made on
or prior to February 21, 2003 in favor of the issuer of
any guaranty,
surety bond or insurance policy issued for the benefit of
the holders of
such Debt, including, each of the consents, dated February
21, 2003,
entered into among (y) AESC, PEC and MBIA Insurance Corporation
and (z) AESC,
WPPC and MBIA Insurance Corporation, (ii) the costs
associated (in
AYE's best estimate) with terminating all Hedge Agreements,
if any, entered
into in connection with such property or asset, which
Hedge Agreements
are not being transferred as part of such sale, lease,
transfer or
other disposition, but only to the extent that the amounts so
deducted are, at
the time or within a reasonable time (not to exceed ten
days) of receipt
of such cash, actually paid to a Person that is not an
Affiliate of
such Person and are properly attributable to such transaction
or to the asset
or property that is the subject thereof and (iii) any
amounts received
from funds that were held in escrow as of the Closing
Date with
respect to any sale, lease, transfer or other disposition of
any
asset or
property consummated prior to the Closing Date; provided, that,
in the case of
taxes or termination costs that are deductible under clause
(b) or (c)(ii)
above but for the fact that, at the time of receipt of such
cash, such
amounts have not been actually paid or are not then payable,
such Person may
deduct an amount (the "Reserved Amount") equal to the
amount reserved
in accordance with GAAP for such Person's reasonable
estimate of such amounts, other
than taxes for such Person is indemnified;
provided further
that, at the time such amounts are paid, an amount equal
to the amount,
if any, by which the Reserved Amount for such amounts
exceeds the
amount of such amounts actually paid shall constitute "Net
Cash Proceeds"
of the type for which such amounts were reserved for all
purposes
hereunder.
"Non-Extension Notice Date" has the meaning specified in
Section
2.03(a)(iii).
"Note" means a Revolving Note or a Term Note, as the context
may
require.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Conversion/Continuation" has the meaning specified
in
Section
2.10(a)(ii).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or
other obligation of such Person of any kind, including any
liability of
such Person on any claim, whether or not the right of any
creditor to
payment in respect of such claim is reduced to judgment,
liquidated,
unliquidated, fixed, contingent, matured, disputed,
undisputed,
legal, equitable, secured or unsecured, and whether or not
such claim is
discharged, stayed or otherwise affected by any proceeding
referred to in
Section 6.01(g). Without limiting the generality of the
foregoing, the
Obligations of any Borrower under the Loan Documents
include (a) the
obligation of such Borrower to pay principal, interest,
Letter of Credit
commissions, charges, expenses, fees, attorneys' and
consultant's
fees and disbursements, indemnities and other amounts payable
by such Borrower
under any Loan Document and (b) the obligation of such
Borrower to
reimburse any amount in respect of any of the foregoing that
any Lender
Party, in its sole discretion, may elect to pay or advance on
behalf of such
Borrower.
"OECD" means the Organization for Economic Cooperation and
Development.
"Officer's Certificate" means, with respect to any Person, a
certificate
signed by a Responsible Officer of such Person.
"Other Taxes" has the meaning specified in Section 2.13(b).
"Outstanding Amount" means (a) with respect to the Revolving
Facility
on any date, the
aggregate outstanding principal amount thereof after
giving effect to
any Revolving Borrowings and prepayments of the Revolving
Facility
occurring on such date; and (b) with respect to any L/C
Obligations on
any date, the amount of such L/C Obligations on such date
after giving
effect to any relevant L/C Credit Extension occurring on such
date and any
other changes in the aggregate amount of such L/C Obligations
as of such date,
including as a result of any reimbursements of
outstanding
unpaid drawings under any relevant Letters of Credit or any
reductions in
the maximum amount available for drawing under any relevant
Letters of
Credit taking effect on such date.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PCM" has the meaning specified in the recital of parties to
this
Agreement.
"PEC" means The Potomac Edison Company, a Maryland and Virginia
corporation.
"Permitted Liens" means such of the following as to which no
enforcement,
collection, execution, levy or foreclosure proceeding shall
have been
commenced: (a) Liens for taxes, assessments and governmental
charges or
levies to the extent not required to be paid under Section
5.01(d); (b)
Liens imposed by law, such as materialmen's, mechanics',
carriers',
workmen's and repairmen's Liens and other similar Liens arising
in the ordinary
course of business securing obligations that are not
overdue for a
period of more than 30 days, or which are subject to
Contest; (c)
Liens or deposits to secure obligations under workers'
compensation
laws or similar legislation or to secure public or statutory
obligations; (d)
deposits to secure the performance of bids, leases (other
than Capitalized
Leases), trade contracts, public or statutory obligations
(including
environmental, municipal and public utility commission
obligations
under Applicable Laws), surety bonds (other than bonds related
to judgments or
litigation), performance bonds and other obligations of a
like nature
incurred in the ordinary course of business; (e) liens
securing
judgments for the payment of money not constituting an Event of
Default under
Section 6.01(h) or securing appeal or other surety bonds
related to such
judgments; (f) easements, rights of way and other
encumbrances on
title to real property that do not render title to the
property
encumbered thereby unmarketable or materially adversely affect
the use of such
property for its present purposes; (g) liens on cash
deposits in the
nature of a right of setoff, banker's lien, counterclaim
on netting of
cash amounts owed arising in the ordinary course of business
on deposit
accounts, commodity accounts or securities accounts; (h)
financing
statements filed on a precautionary basis in respect of
operating leases
to the extent such lease is otherwise permitted under the
terms of this
Agreement; provided that no such financing statement extends
to or refers to
as collateral, any property or assets which are not
subject to such
operating lease; and (i) rights of first refusal, options
or other
contractual rights or obligations to sell, assign or otherwise
dispose of any
property or asset or interest therein which right of first
refusal, option
or contractual right is in connection with an asset sale
or disposition
permitted under Section 5.02(d) or 5.02(e).
"Permitted Refinancing Debt" means Debt issued or incurred
(including
by means of the
extension or renewal of existing Debt) to refinance,
refund, extend,
renew or replace existing Debt ("Refinanced Debt")
concurrently
with, or within 90 days after, the issuance or incurrence of
such Debt (so
long as all proceeds from the issuance of such Debt (net of
reasonable and
customary transaction fees, costs and expenses (including
fees of legal
counsel)) are held as a cash deposit in an account of any
Borrower or
invested and maintained by such Borrower solely in Cash
Equivalents
until applied to repay the Refinanced Debt); provided that
with respect to AYE and its
Regulated Subsidiaries (a) the principal
amount of such
refinancing, refunding, extending, renewing or replacing
Debt is not
greater than the principal amount of such Refinanced Debt plus
the amount of
any premiums or penalties and accrued and unpaid interest
paid thereon and
reasonable fees and expenses, in each case associated
with such
refinancing, refunding, extension, renewal or replacement, (b)
such
refinancing, refunding, extending, renewing or replacing Debt has
a
scheduled
maturity date that is at least six calendar months after the
Final Maturity
Date and does not require any scheduled amortization or, if
such Debt is not
FMB Debt, mandatory prepayments thereof (other than
pursuant to mandatory
prepayment provisions which are substantially
identical to
those required in respect of such Refinanced Debt) prior to
such date, (c)
the obligors in respect of such Refinanced Debt immediately
prior to such
refinancing, refunding, extending, renewing or replacing and
any additional
Person are the only obligors on such refinancing,
refunding,
extending, renewing or replacing Debt, (d) such refinancing,
refunding,
extending, renewing or replacing Debt, if it is not FMB Debt,
contains
covenants and events of default which, taken as a whole, are
determined in
good faith by a Responsible Officer of AYE to be customary
for similar
issuances of Debt by issuers similar in credit rating or
standing as that
applicable to AYE, and (e) if the Refinanced Debt was
outstanding
under a revolving credit facility, the availability under such
revolving credit
facility shall be permanently reduced by an amount equal
to the aggregate
principal amount of such Refinanced Debt.
"Permitted Securitization" means (a) a Stranded Cost
Securitization,
(b) an
Environmental Control Property Securitization or (c) any other
securitization
by a Regulated Subsidiary of rights to payments or other
payment
intangibles (whether constituting accounts, chattel paper,
instruments,
general intangibles or otherwise, and including the right to
payment of any
interest or finance charges) from customers of such
Regulated
Subsidiary, which in the case of clause (c), such rights (i)
arise after the
date of this Agreement and (ii) are identified in the
accounting
records of such Regulated Subsidiary as accounts receivable,
regulatory
assets or other intangible assets associated with the right to
receive such
payments over time in connection with the sale and/or
delivery of
electricity and any services related thereto, and which, in
the case of
clauses (a), (b) and (c), are permitted by Section
5.02(e)(viii).
"Person" means an individual, partnership, corporation (including
a
business or
statutory trust), limited liability company, joint stock
company, trust,
unincorporated association, joint venture or other entity,
or a government
or any political subdivision or agency thereof.
"Plan" means a Single-Employer Plan or a Multiple Employer
Plan.
"Platform" has the meaning specified in Section 8.02(c).
"PNC" has the meaning specified in the recital of parties to
this Agreement.
"Pollution Control Bond Indentures" means (a) the Trust
Indenture
dated as of
April 15, 1992 between the County Commission of Harrison
County, West
Virginia and J.P. Morgan Trust Company, National Association
(formerly Chase
Manhattan Trust Company, National Association, successor
trustee to
Mellon Bank, N.A.), as Trustee, providing for Solid Waste
Disposal Revenue
Bonds (West Penn Power Company Harrison Station Project),
(b) the Trust
Indenture dated as of November 1, 1977 between Pleasants
County, West
Virginia and J.P. Morgan Trust Company, National Association
(formerly Chase
Manhattan Trust Company, National Association, successor
trustee to
Mellon Bank, N.A.), as Trustee, providing for Pollution Control
Revenue Bonds
(West Penn Power Company Pleasants Station Project), (c) the
Trust Indenture
dated as of December 1, 1980 between Washington County
Industrial
Development Authority and J.P. Morgan Trust Company, National
Association
(formerly Chase Manhattan Trust Company, National Association,
successor
trustee to Mellon Bank, N.A.), as Trustee, providing for
Pollution
Control Revenue Bonds (West Penn Power Company Mitchell Station
Project), (d) the Trust
Indenture dated as of April 15, 1983 between the
County
Commission of Monongalia County, West Virginia and J.P. Morgan
Trust Company,
National Association (formerly Chase Manhattan Trust
Company,
National Association, successor trustee to Mellon Bank, N.A.),
as
Trustee,
providing for Pollution Control Revenue Bonds (West Penn Power
Company Fort
Martin Station Project), (e) the Trust Indenture dated as of
February 1, 1977
between Greene County Industrial Development Authority
and J.P. Morgan
Trust Company, National Association (formerly Chase
Manhattan Trust
Company, National Association, successor trustee to Mellon
Bank, N.A.), as
Trustee, providing for Pollution Control Revenue Bonds
(West Penn Power Company
Hatfield's Ferry Project), (f) the Trust
Indenture dated
as of April 15, 1992 between the County Commission of
Harrison County,
West Virginia and J.P. Morgan Trust Company, National
Association
(formerly Chase Manhattan Trust Company, National Association,
successor
trustee to Mellon Bank, N.A.), as Trustee, providing for Solid
Waste Disposal
Revenue Bonds (The Potomac Edison Company Harrison Station
Project), (g)
the Trust Indenture dated as of November 1, 1977 between
Pleasants
County, West Virginia and J.P. Morgan Trust Company, National
Association
(formerly Chase Manhattan Trust Company, National Association,
successor
trustee to Mellon Bank, N.A.), as Trustee, providing for
Pollution
Control Revenue Bonds (The Potomac Edison Company Pleasants
Station
Project), (h) the Trust Indenture dated as of April 15, 1983
between the
County Commission of Monongalia County, West Virginia and J.P.
Morgan Trust
Company, National Association (formerly Chase Manhattan Trust
Company,
National Association, successor trustee to Mellon Bank, N.A.),
as
Trustee,
providing for Pollution Control Revenue Bonds (The Potomac
Edison
Company Fort
Martin Station Project), (i) the Trust Indenture dated as of
February 1, 1977
between Greene County Industrial Development Authority
and J.P. Morgan
Trust Company, National Association (formerly Chase
Manhattan Trust
Company, National Association, successor trustee to Mellon
Bank, N.A.), as
Trustee, providing for Pollution Control Revenue Bonds
(Monongahela
Power Company Hatfield's Ferry Project), (j) the Trust
Indenture dated
as of November 1, 1977 between Pleasants County, West
Virginia and
J.P. Morgan Trust Company, National Association (formerly
Chase Manhattan
Trust Company, National Association, successor trustee to
Mellon Bank,
N.A.), as Trustee, providing for Pollution Control Revenue
Bonds
(Monongahela Power Company Pleasants Station Project), (k) the
Trust
Indenture dated
as of April 15, 1983 between the County Commission of
Monongalia
County, West Virginia and J.P. Morgan Trust Company, National
Association
(formerly Chase Manhattan Trust Company, National Association,
successor
trustee to Mellon Bank, N.A.), as Trustee, providing for
Pollution
Control Revenue Bonds (Monongahela Power Company Fort Martin
Station
Project), and (l) Trust Indenture dated as of April 15, 1992
between the
County Commission of Harrison County, West Virginia and J.P.
Morgan Trust
Company, National Association (formerly Chase Manhattan Trust
Company,
National Association, successor trustee to Mellon Bank, N.A.),
as
Trustee,
providing for Solid Waste Disposal Revenue Bonds (Monongahela
Power Company
Harrison Station Project).
"Pollution Control Bonds" means all notes, bonds and other
instruments
evidencing Debt
owed by any Borrower in respect of Debt issued pursuant to
the Pollution
Control Bond Indentures.
"Preferred Interests" means, with respect to any Person, Equity
Interests issued
by such Person that are entitled to a preference or
priority over
any other Equity Interests issued by such Person upon any
distribution of
such Person's property and assets, whether by dividend or
upon
liquidation.
"Pro Rata Share" means, with respect to each Revolving Lender at
any
time, a fraction
(expressed as a percentage, carried out to the ninth
decimal place),
the numerator of which is the amount of the Revolving
Commitment of
such Revolving Lender and the denominator of which is the
amount of the
Revolving Facility; provided that if the commitment of each
Revolving Lender
to make Revolving Advances and the obligation of each
Issuing Bank to
make L/C Credit Extensions have been terminated pursuant
to Section 2.05
or 6.01, then the Pro Rata Share of each Revolving Lender
shall be
determined based on the Pro Rata Share of such Revolving Lender
immediately
prior to such termination and after giving effect to any
subsequent
assignments made pursuant to the terms hereof. The initial Pro
Rata Share of
each Revolving Lender is set forth opposite the name of such
Revolving Lender on
Schedule II or in the Assignment and Assumption
pursuant to
which such Lender becomes a party hereto, as applicable.
"Public Debt Rating" means, as of any date, the higher rating that
has
been most
recently announced by either S&P or Moody's, as the case may
be,
for any class of
non-credit enhanced long-term senior unsecured debt
issued by AYE;
provided that (a) if only one of S&P and Moody's shall have
in effect a
Public Debt Rating or if neither S&P nor Moody's shall have
in
effect a Public
Debt Rating, the Applicable Margin and Commitment Fee Rate
will be
determined in accordance with Level 4 under the definition of
"Applicable
Margin" and "Commitment Fee Rate", respectively; (b) if such
ratings
established by S&P and Moody's shall differ by one level,
the
Applicable
Margin and Commitment Fee Rate shall be determined in
accordance with
the higher rating; (c) if such ratings established by S&P
and Moody's
shall differ by two or more levels, the Applicable Margin and
Commitment Fee
Rate shall be based upon the rating which is one rating
level higher
than the lower of the ratings established by S&P and
Moody's;
(d) if any
rating established by S&P or Moody's shall be changed, such
change shall be
effective as of the date on which such change is first
announced
publicly by the rating agency making such change; and (e) if
S&P
or Moody's shall
change the basis on which ratings are established, each
reference to the
Public Debt Rating announced by S&P or Moody's, as the
case may be,
shall refer to the then equivalent rating by S&P or
Moody's,
as the case may
be.
"PUHCA" means the Public Utility Holding Company Act of 1935,
as
amended.
"Qualifying Obligation" means an Obligation in an aggregate
principal
amount in excess
of $5,000,000.
"Quarterly Date" means the last Business Day of March, June,
September
and December,
commencing with June 30, 2005.
"Redeemable" means, with respect to any Preferred Interests, any
such
Preferred
Interests that the issuer is required, pursuant to the terms
and
conditions
thereof, to redeem at a fixed or determinable date or dates,
whether by
operation of a sinking fund or otherwise, or upon the
occurrence of a
condition not solely within the control of the issuer.
"Reduction Amount" has the meaning specified in Section
2.06(b).
"Register" has the meaning specified in Section 8.07(e).
"Regulated Subsidiaries" means, collectively, MPC, PEC and WPPC
and
any of their
respective Subsidiaries.
"Related Borrower" means, with respect to (a) any Revolving
Advance,
the Borrower to
which such Advance is made, (b) any AYE Letter of Credit,
AESC Indirect
Letter of Credit, AYE L/C Obligation or AESC Indirect L/C
Obligation, AYE
and (c) any AESC Direct Letter of Credit or AESC Direct
L/C Obligation,
AESC.
"Representatives" has the meaning specified in Section 8.12(a).
"Required Lenders" means, at any time, Lenders owed or holding
at
least a majority
in interest of the sum of (a) the Total Revolving
Outstandings
(with the aggregate amount of each Lender's risk
participation
and funded participation in L/C Obligations being deemed
"held" by such
Lender for purposes of this definition) (if any) at such
time, plus (b)
the aggregate Unused Commitments at such time, plus (c)
the aggregate
outstanding principal amount of the Term Advances (if any)
at such time,
plus (d) the aggregate amount of the Term Commitments (if
any) at such
time.
"Required Revolving Lenders" means, at any time, Revolving
Lenders
owed or holding
at least a majority in interest of the sum of (a) the
Total Revolving
Outstandings (with the aggregate amount of each Lender's
risk
participation and funded participation in L/C Obligations being
deemed "held" by
such Lender for purposes of this definition) (if any) at
such time, plus
(b) the aggregate Unused Commitments (if any) at such
time.
"Responsible Officer" means, with respect to any Person, the
president, any
vice-president, the treasurer or the Chief Financial
Officer of such
Person.
"Restricted Payments" means, with respect to any Person, any
(a)
dividends (in
cash or property), purchase, redemption, retirement,
defeasance or
other acquisition for value of any of its Equity Interests
now or hereafter
outstanding, (b) return of capital to its stockholders,
partners or
members (or the equivalent Persons thereof) as such, (c)
distribution of
assets, Equity Interests, obligations or securities to
its
stockholders, partners or members (or the equivalent Persons
thereof)
as such, and (d)
setting apart of money for a sinking or other analogous
fund for, or any
purchase, redemption, retirement or other acquisition of
any Equity
Interests in such Person; provided that, notwithstanding the
foregoing,
neither of the following shall constitute a "Restricted
Payment": (i)
with respect to any Person, any dividend or distribution
payable solely
with common stock of such Person or with Equity Interests
in such Person
of the same class as those by reference to which such
Equity Interests
are being distributed and (ii) any exchange of
outstanding
Equity Interests of any Person for common stock of such
Person or for
Equity Interests of the same class in such Person.
"Revolving Advance" has the meaning specified in Section
2.01(a).
"Revolving Borrowing" means a borrowing consisting of
simultaneous
Revolving
Advances of the same Type, made by the Revolving Lenders.
"Revolving Commitment" means, as to each Revolving Lender, its
obligation to:
(a) make a Revolving Advance to any Borrower pursuant to
Section 2.01(a);
and (b) purchase participations in L/C Obligations
pursuant to
Section 2.01(d), (e) and (f), in an aggregate principal amount
at any one time
outstanding not to exceed the amount set forth opposite
such Revolving
Lender's name on Schedule II under the caption "Revolving
Commitment" or
in the Assignment and Assumption pursuant to which such
Lender becomes a
party hereto, as applicable, as such amount may be
adjusted from
time to time in accordance with this Agreement.
"Revolving Facility" means, at any time, the aggregate of the
Revolving
Commitments at such time.
"Revolving Lender" means any Lender that has a Revolving
Commitment.
"Revolving Note" means a promissory note of any Borrower payable
to
the order of a
Revolving Lender in substantially the form of Exhibit A-1,
evidencing the
aggregate indebtedness of such Borrower to such Revolving
Lender resulting
from Revolving Advances made by such Revolving Lender
hereunder to
such Borrower.
"SEC" means the Securities and Exchange Commission.
"Securitization SPV" means any trust, partnership or other
Person
established by a
Regulated Subsidiary or any Subsidiary of a Regulated
Subsidiary to
implement a Permitted Securitization.
"Senior Debt Obligations" means, without duplication, (a) the
Obligations of
the Borrowers to pay principal and interest on the Advances
(including any
interest accruing after the filing of a petition with
respect to, or
the commencement of, any Insolvency Proceeding, whether or
not a claim for
post-petition interest is allowed in such proceeding), and
(b) any and all
commissions, fees, indemnities, prepayment premiums, costs
and expenses and
other amounts payable to any Lender Party under any Loan
Document,
including all renewals or extensions thereof; provided that
notwithstanding
anything to the contrary in any Loan Document, "Senior
Debt
Obligations" shall not include any Obligations of any Borrower
owed
to any of its
Affiliates.
"Services Corp" means Allegheny Energy Service Corporation, a
Maryland
corporation.
"Services Corp AESC Debt" means secured or unsecured Debt of
Services
Corp
attributable to, or incurred by Services Corp on behalf of, any
AESC
Company.
"Services Corp Regulated Debt" means secured or unsecured Debt
of
Services Corp
attributable to, or incurred by Services Corp on behalf of,
AYE or any
Regulated Subsidiary.
"Single-Employer Plan" means a single-employer plan, as defined
in
Section
4001(a)(15) of ERISA, that (a) is maintained for employees of
AYE
or any of its
Subsidiaries or any ERISA Affiliate and no Person other than
AYE, its
Subsidiaries and the ERISA Affiliates or (b) was so maintained
and in respect
of which AYE, any of its Subsidiaries or any ERISA
Affiliate could
have liability under Section 4069 of ERISA in the event
such plan has
been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date,
that on such date (a) the fair value of the property of
such Person is
greater than the total amount of liabilities, including,
without
limitation, contingent liabilities that are probable and
estimable, of
such Person, (b) the present fair saleable value of the
assets of such
Person is not less than the amount that will be required to
pay the probable
liability of such Person on its debts as they become
absolute and
matured, taking into account the possibility of refinancing
such obligations
and selling assets, (c) such Person does not intend to,
and does not
believe that it will, incur debts or liabilities beyond such
Person's ability
to pay such debts and liabilities as they mature, taking
into account the
possibility of refinancing such obligations and selling
assets, and (d)
such Person is not engaged in business or a transaction,
and is not about
to engage in business or a transaction, for which such
Person's
property would constitute an unreasonably small capital. The
determination of
whether a Person is "Solvent" and the facts and
circumstances
relating thereto (including the amount of contingent
liabilities and
actual liabilities) at any time shall be computed in the
light of all the
facts and circumstances existing at such time.
"SPV" shall have the meaning provided in Section 8.07(h).
"Standby Letter of Credit" means any Letter of Credit issued
under
this Agreement,
other than a Trade Letter of Credit.
"Stranded Cost Securitization" has the meaning specified in
Section
5.02(e)(viii)(A).
"Subsidiary" of any Person means any corporation, partnership,
joint
venture, limited
liability company, trust or estate of which (or in which)
more than 50% of
(a) the issued and outstanding capital stock having
ordinary voting
power to elect a majority of the board of directors of
such corporation
(irrespective of whether at the time capital stock of any
other class or
classes of such corporation shall or might have voting
power upon the
occurrence of any contingency), (b) the interest in the
capital or
profits of such partnership, joint venture or limited liability
company or (c)
the beneficial interest in such trust or estate is at the
time, directly
or indirectly owned or controlled by such Person, by such
Person and one
or more of its other Subsidiaries or by one or more of such
Person's other
Subsidiaries.
"Surviving Debt" means Debt of AYE and its Subsidiaries (other
than
the Regulated
Subsidiaries and the AESC Companies) outstanding immediately
prior to giving
effect to the Transactions.
"S&P" means Standard & Poor's, a division of The
McGraw-Hill
Companies,
Inc.
"Tax Allocation Agreement" means the Tax Allocation Agreement,
dated
as of July 1,
2003, by and among AYE and its Subsidiaries.
"Taxes" has the meaning specified in Section 2.13(a).
"Term Advance" has the meaning specified in Section 2.01(b).
"Term Borrowing" means the borrowing consisting of simultaneous
Term
Advances of the
same Type, made by the Term Lenders.
"Term Commitment" means, as to each Term Lender, its obligation
to
make a Term
Advance to AYE pursuant to Section 2.01(b), in an aggregate
principal amount
at any one time outstanding not to exceed the amount set
forth opposite
such Term Lender's name on Schedule II under the caption
"Term
Commitment" or in the Assignment and Assumption pursuant to
which
such Term Lender
becomes a party hereto, as applicable, as such amount may
be adjusted from
time to time in accordance with this Agreement.
"Term Commitment Termination Date" has the meaning specified in
Section
2.05(b)(ii).
"Term Facility" means, at any time, the aggregate of the Term
Commitments at
such time.
"Term Lender" means any Lender that has a Term Commitment.
"Term Note"
means a promissory note of AYE payable to the order of a
Term Lender in
substantially the form of Exhibit A-2, evidencing the
aggregate
indebtedness of AYE to such Term Lender resulting from Term
Advances made by
such Term Lender hereunder to AYE.
"Termination Event" means an event described in Section 4042(a)
of
ERISA.
"Total Revolving Outstandings" means the aggregate Outstanding
Amount
of all Revolving
Advances and all L/C Obligations.
"Trade Letter of
Credit" means any Letter of Credit that is issued
under this
Agreement for the benefit of a supplier of goods or services to
any Borrower or
any of its Subsidiaries to effect payment for such goods
or services, the
conditions to drawing under which include the
presentation to
an Issuing Bank.
"Transactions" means (a) the refinancing of Debt outstanding under
the
Existing Credit
Agreement with the proceeds of Revolving Advances, (b) the
continuance of
the Existing L/Cs as AYE Letters of Credit issued under
this Agreement
and (c) the refinancing of the principal amount of the
7.75% Notes with
the proceeds of the Term Advances.
"Type" refers (a) in the case of Advances, to the distinction
between
Advances bearing
interest at the Base Rate and Advances bearing interest
at the
Eurodollar Rate, (b) in the case of Letters of Credit, to the
distinction
between AYE Letters of Credit, AESC Direct Letters of Credit
and AESC
Indirect Letters of Credit, (c) in the case of L/C Obligations,
to the
distinction between AYE L/C Obligations, AESC Direct L/C
Obligations and
AESC Indirect L/C Obligations and (d) in the case of L/C
Credit
Extensions, to the distinction between AYE L/C Credit
Extensions,
AESC Direct
Credit Extensions and AESC Indirect Credit Extensions.
"UGI" means UGI Hunlock Development Company.
"Unreimbursed Amount" has the meaning specified in Section
2.03(b)(i).
"Unused Commitment" means, with respect to any Revolving Lender at
any
time, (a) such
Revolving Lender's Revolving Commitment at such time minus
(b) such
Revolving Lender's Pro Rata Share of the Total Revolving
Outstandings.
"Voting Interests" means shares of capital stock issued by a
corporation, or
equivalent Equity Interests in any other Person, the
holders of which
are ordinarily, in the absence of contingencies, entitled
to vote for the
election of directors (or persons performing similar
functions) of
such Person, even if the right so to vote has been suspended
by the happening
of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle
E of Title IV of
ERISA.
"WPPC" means West Penn Power Company, a Pennsylvania
corporation.
SECTION 1.02. Principles of Interpretation. (a) Except to the
extent
expressly
provided to the contrary in this Agreement or to the extent
that
the context
otherwise requires, in this Agreement and the other Loan
Documents:
(i) the table of contents and Article and Section headings
are for convenience only and shall not affect the
interpretation
of any Loan Document;
(ii) references to any document, instrument or agreement,
including any Loan Document, shall include (A) all exhibits,
annexes, schedules, appendices or other attachments thereto and
(B) all documents,
instruments or agreements issued or executed
in replacement thereof;
(iii) references to a document or agreement, including any
Loan Document, shall be deemed to include any amendment,
restatement, modification, supplement or replacement thereto
entered into in accordance with the terms thereof and the terms
of the Loan Documents;
(iv) the words "include", "includes" and "including" are
not limiting;
(v) references to any Person shall include such Person's
successors and permitted assigns (and in the case of any
Governmental Authority, any Person succeeding to such
Governmental Authority's functions and capacities);
(vi) the words "hereof", "herein" and "hereunder" and words
of similar import when used in any Loan Document shall refer to
such Loan Document as a whole and not to any particular
provision
of such Loan Document;
(vii) references to "days" shall mean calendar days;
(viii) the singular includes the plural and the plural
includes the singular;
(ix) references to Applicable Law, generally, shall mean
Applicable Law as in effect from time to time, and references
to
any specific Applicable Law shall mean such Applicable Law, as
amended, modified or supplemented from time to time, and any
Applicable Law successor thereto;
(x) in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but
excluding"; and
(xi) any reference in this Agreement or any other Loan
Document to an Article, Section, Schedule, Appendix or Exhibit
is
to the article or section of, or a schedule, appendix or
exhibit
to, this Agreement or such other Loan Document, as the case may
be, unless otherwise indicated.
(b) This Agreement, the Schedules and Exhibits hereto and the
other Loan Documents are the result of negotiations among the
parties
hereto and their respective counsel. Accordingly, this Agreement,
the
Schedules and Exhibits hereto and the other Loan Documents shall
be
deemed the product of all parties hereto or thereto, as the case
may
be, and no ambiguity in this Agreement, the Schedules and
Exhibits
hereto or any Loan Document shall be construed in favor of or
against
the Borrowers, the Administrative Agent, any Arranger Party or
any
Lender that is a party hereto.
(c) All accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all
financial
statements required to be delivered hereunder shall be prepared,
in
accordance with generally accepted accounting principles as in
effect
from time to time, applied on a basis consistent (except for
changes
concurred in by AYE's independent public accountants) with the
most
recent audited consolidated financial statements of AYE and its
Subsidiaries delivered to the Lenders ("GAAP"); provided that, if
AYE
notifies the Administrative Agent that AYE wishes to amend any
covenant in Section 5.04 to eliminate the effect of any change
in
generally accepted accounting principles on the operation of
such
covenant (or if the Administrative Agent notifies AYE that the
Required Lenders wish to amend Section 5.04 for such purpose),
then
AYE's compliance with such covenant shall be determined on the
basis
of generally accepted accounting principles in effect
immediately
before the relevant change in generally accepted accounting
principles
became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to AYE and the
Required
Lenders.
SECTION 1.03. Letter of Credit. Unless otherwise specified, all
references herein to the amount of a Letter
of Credit at any time shall be
deemed to mean the maximum face amount of
such Letter of Credit after giving
effect to all increases thereof
contemplated by such Letter of Credit or the
Issuer Documents related thereto, whether
or not such maximum face amount is in
effect at such time.
SECTION 1.04. Joint and Several Obligations of AYE.
Notwithstanding
anything to the contrary in any Loan
Document, AYE shall be jointly and
severally liable for all Obligations of
AESC under the Loan Documents. Such
Obligations of AYE shall be irrevocable,
absolute and unconditional
irrespective of, and AYE hereby irrevocably
waives any defenses it may now or
hereafter acquire in any way relating to,
any of the following:
(a) any lack of validity or enforceability of any Loan Document
or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in
any other term of, all or any Obligations of AESC under or in
respect
of the Loan Documents, or any other amendment or waiver of or
any
consent to departure from any Loan Document, including any increase
in
the Obligations of AESC under or in respect of the Loan
Documents
resulting from the extension of additional credit to AESC or any
of
its Subsidiaries or otherwise;
(c) any Insolvency Proceeding with respect to, or any change,
restructuring or termination of the corporate structure or
existence
of, AESC;
(d) any failure of any Lender Party to disclose to AYE any
information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of
AESC
now or hereafter known to such Lender Party (AYE waiving any duty
on
the part of the Lender Parties to disclose such information);
or
(e) any other circumstance (including any statute of
limitations)
or any existence of or reliance on any representation by any
Lender
Party that might otherwise constitute a defense available to, or
a
discharge of, AYE.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND LETTERS OF CREDIT
SECTION 2.01. The Advances. (a) Revolving Advance. Each
Revolving
Lender severally agrees, on the terms and
conditions hereinafter set forth, to
make advances (each a "Revolving Advance")
to any Borrower from time to time on
any Business Day during the period from the
Closing Date until the Final
Maturity Date in an amount for each such
Revolving Advance not to exceed such
Revolving Lender's Unused Commitment at
such time; provided that (i) the amount
of each Revolving Borrowing made to any
Borrower shall not exceed the Borrowing
Limit applicable to such Borrower at such
time, (ii) no Revolving Borrowing
shall be made to AESC unless the aggregate
Unused Commitments shall be equal to
or greater than $100,000,000 after giving
pro forma effect to such Revolving
Borrowing, and (iii) after giving effect to
any Revolving Borrowing, (A) the
Total Revolving Outstandings shall not
exceed the Revolving Facility, and (B)
the aggregate Outstanding Amount of the
Revolving Advances of any Revolving
Lender plus such Revolving Lender's Pro
Rata Share of the Outstanding Amount of
all L/C Obligations shall not exceed such
Revolving Lender's Revolving
Commitment. Each Revolving Borrowing shall
be in an aggregate amount of
$2,000,000 or an integral multiple of
$1,000,000 in excess thereof (other than
a Revolving Borrowing the proceeds of which
shall be used solely to repay or
prepay in full any L/C Borrowing) and shall
consist of Revolving Advances of
the same Type made simultaneously by the
Revolving Lenders ratably according to
their Revolving Commitments. Within the
limits of each Revolving Lender's
Unused Commitment in effect from time to
time and the Borrowing Limits
applicable to each Borrower, either
Borrower may borrow under this Section
2.01(a), prepay pursuant to Section 2.06
and reborrow under this Section
2.01(a).
(b) Term Advance. Each Term Lender severally agrees, on the
terms
and conditions hereinafter set forth, to
make a single advance (each a "Term
Advance") to AYE on any one Business Day
during the period commencing on the
Closing Date and ending on the Term
Commitment Termination Date in an amount
not to exceed such Term Lender's Term
Commitment. The Term Borrowing shall
consist of Term Advances of the same Type
made simultaneously by the Term
Lenders on such Business Day ratably
according to their Term Commitments.
Amounts borrowed under this Section 2.01(b)
and repaid or prepaid may not be
reborrowed.
(c) Continuance of the Existing L/Cs. AYE hereby requests that
the Initial Issuing Bank continue
hereunder, and the Initial Issuing Bank
hereby agrees that upon fulfillment of the
conditions set forth in Section 3.01
it will continue hereunder, on the Closing
Date, the Existing L/Cs for the
account of AYE on behalf of Allegheny
Energy Solutions, Inc., a Subsidiary of
AYE, and, upon such continuance, each of
the Existing L/Cs shall be deemed to
be an AYE Letter of Credit and shall be
governed by the terms hereof. The
continuance of each Existing L/C shall be
deemed to constitute, for all
purposes under this Agreement and the other
Loan Documents, the issuance of an
AYE Letter of Credit.
(d) AYE Letters of Credit. Subject to the terms and conditions
set forth herein, (A) each Issuing Bank
agrees, in reliance upon the agreements
of the other Revolving Lenders set forth in
Section 2.03, (1) from time to time
on any Business Day during the period from
the Closing Date until the Letter of
Credit Expiration Date, to make AYE L/C
Credit Extensions for the account of
AYE or its Subsidiaries (excluding the AESC
Companies), and to amend or extend
AYE Letters of Credit previously issued by
it, in accordance with Section
2.03(a)(i) and (ii), and (2) to honor
drawings under the AYE Letters of Credit;
and (B) the Revolving Lenders severally
agree to participate in AYE Letters of
Credit issued for the account of AYE or its
Subsidiaries (excluding the AESC
Companies) and any L/C Borrowings
thereunder; provided that after giving effect
to any AYE L/C Credit Extension with
respect to any AYE Letter of Credit, (x)
the Total Revolving Outstandings shall not
exceed the Revolving Facility and
(y) the aggregate Outstanding Amount of the
Revolving Advances of any Revolving
Lender, plus such Revolving Lender's Pro
Rata Share of the Outstanding Amount
of all L/C Obligations, shall not exceed
such Revolving Lender's Revolving
Commitment. Each request by AYE for the
issuance of, or an amendment to
increase the amount of, any AYE Letter of
Credit shall be deemed to be a
representation by AYE that the AYE L/C
Credit Extension so requested complies
with the conditions set forth in the
proviso to the preceding sentence. Within
the foregoing limits, and subject to the
terms and conditions hereof, AYE's
ability to obtain AYE Letters of Credit
shall be fully revolving, and
accordingly AYE may, during the foregoing
period, obtain AYE Letters of Credit
to replace Letters of Credit that have
expired or that have been drawn upon and
reimbursed.
(e) AESC Indirect Letters of Credit. Subject to the terms and
conditions set forth herein, (A) each
Issuing Bank agrees, in reliance upon the
agreements of the other Revolving Lenders
set forth in Section 2.03, (1) from
time to time on any Business Day during the
period from the Closing Date until
the Letter of Credit Expiration Date, to
make AESC Indirect L/C Credit
Extensions for the account of AYE on behalf
of AESC or its Subsidiaries, and to
amend or extend AESC Indirect Letters of
Credit previously issued by it, in
accordance with Section 2.03(a)(i) and
(ii), and (2) to honor drawings under
the AESC Indirect Letters of Credit; and
(B) the Revolving Lenders severally
agree to participate in AESC Indirect
Letters of Credit issued for the account
of AYE on behalf of AESC or its
Subsidiaries and any L/C Borrowings thereunder;
provided that after giving effect to any
AESC Indirect L/C Credit Extension
with respect to any AESC Indirect Letter of
Credit, (x) the Outstanding Amount
of all AESC Indirect L/C Obligations shall
not exceed the AESC Indirect L/C
Sublimit, (y) the Total Revolving
Outstandings shall not exceed the Revolving
Facility and (z) the aggregate Outstanding
Amount of the Revolving Advances of
any Revolving Lender, plus such Revolving
Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations,
shall not exceed such Revolving
Lender's Revolving Commitment. Each request
by AYE for the issuance of, or an
amendment to increase the amount of, an
AESC Indirect Letter of Credit shall be
deemed to be a representation by AYE that
the AESC Indirect L/C Credit
Extension so requested complies with the
conditions set forth in the proviso to
the preceding sentence. Within the
foregoing limits, and subject to the terms
and conditions hereof, AYE's ability to
obtain AESC Indirect Letters of Credit
shall be fully revolving, and accordingly
AYE may, during the foregoing period,
obtain AESC Indirect Letters of Credit to
replace Letters of Credit that have
expired or that have been drawn upon and
reimbursed.
(f) AESC Direct Letters of Credit. Subject to the terms and
conditions set forth herein, (A) each
Issuing Bank agrees, in reliance upon the
agreements of the other Revolving Lenders
set forth in Section 2.03, (1) from
time to time on any Business Day during the
period from the Closing Date until
the Letter of Credit Expiration Date, to
make AESC Direct L/C Credit Extensions
for the account of AESC or its
Subsidiaries, and to amend or extend AESC Direct
Letters of Credit previously issued by it,
in accordance with Section
2.03(a)(i) and (ii), and (2) to honor
drawings under the AESC Direct Letters of
Credit; and (B) the Revolving Lenders
severally agree to participate in AESC
Direct Letters of Credit issued for the
account of AESC or its Subsidiaries and
any L/C Borrowings thereunder; provided
that (i) no AESC Direct L/C Credit
Extension shall be made for the account of
AESC unless the aggregate Unused
Commitments shall be equal to or greater
than $100,000,000 after giving pro
forma effect to such AESC Direct L/C Credit
Extension; and (ii) after giving
effect to any AESC Direct L/C Credit
Extension with respect to any AESC Direct
Letter of Credit, (x) the Outstanding
Amount of all AESC Direct L/C
Obligations, plus the aggregate principal
amount of all Revolving Advances made
to AESC outstanding at such time shall not
exceed the AESC Direct Advance and
L/C Sublimit, (y) the Total Revolving
Outstandings shall not exceed the
Revolving Facility and (z) the aggregate
Outstanding Amount of the Revolving
Advances of any Revolving Lender, plus such
Revolving Lender's Pro Rata Share
of the Outstanding Amount of all L/C
Obligations, shall not exceed such
Revolving Lender's Revolving Commitment.
Each request by AESC for the issuance
of, or an amendment to increase the amount
of, any AESC Direct Letter of Credit
shall be deemed to be a representation by
AYE and AESC that the AESC Direct L/C
Credit Extension so requested complies with
the conditions set forth in the
proviso to the preceding sentence. Within
the foregoing limits, and subject to
the terms and conditions hereof, AESC's
ability to obtain AESC Direct Letters
of Credit shall be fully revolving, and
accordingly AESC may, during the
foregoing period, obtain AESC Direct
Letters of Credit to replace Letters of
Credit that have expired or that have been
drawn upon and reimbursed.
(g) Letters of Credit Generally. (i) No Issuing Bank shall
issue
any Letter of Credit if the expiry date of
such requested Letter of Credit
would occur after the Letter of Credit
Expiration Date, unless all the
Revolving Lenders have approved such expiry
date.
(ii) No Issuing Bank shall be under any Obligation to make
any L/C Credit Extension if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain such Issuing Bank from issuing such Letter of Credit, or
any
Applicable Law to such Issuing Bank or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over such Issuing Bank shall prohibit,
or
request that the Issuing Bank refrain from, the issuance of Letters
of
Credit generally or such Letter of Credit in particular or
shall
impose upon such Issuing Bank with respect to such Letter of
Credit
any restriction, reserve or capital requirement (for which such
Issuing Bank is not otherwise compensated hereunder) not in effect
on
the Closing Date, or shall impose upon such Issuing Bank any
unreimbursed loss, cost or expense which was not applicable on
the
Closing Date and which such Issuing Bank in good faith deems
material
to it;
(B) the making of such L/C Credit Extension would
violate any Applicable Laws;
(C) except as otherwise agreed by the Administrative
Agent and such Issuing Bank, such Letter of Credit is in an
initial face amount less than $100,000;
(D) such L/C Credit Extension is to be denominated in a
currency other than Dollars;
(E) such L/C Credit Extension contains any provisions
for automatic reinstatement of the stated amount after any L/C
Borrowing thereunder; or
(F) a default of any Revolving Lender's obligations to
fund under Section 2.03 exists, unless such Issuing Bank has
entered into satisfactory arrangements with the Borrowers or
such Revolving Lender to eliminate such Issuing Bank's risk
with
respect to such Revolving Lender.
(iii) No Issuing Bank shall amend any Letter of Credit if such
Issuing Bank would not be permitted at such time to make such
L/C
Credit Extension in its amended form under the terms hereof.
(iv) No Issuing Bank shall be under the obligation to amend any
Letter of Credit if (A) such Issuing Bank would have no obligation
at
such time to issue such Letter of Credit in its amended form under
the
terms hereof, or (B) the beneficiary of such Letter of Credit does
not
accept the proposed amendment to such Letter of Credit.
SECTION 2.02. Making the Advances. (a) Except as otherwise provided
in
Section 2.03, each Borrowing to any
Borrower shall be made on notice, given by
AYE on behalf of such Borrower (and each
Borrower other than AYE hereby
unconditionally and irrevocably instructs
AYE to issue such notice on its
behalf) not later than 10:00 a.m. (New York
City time) on the third Business
Day prior to the date of the proposed
Borrowing in the case of a Borrowing
consisting of Eurodollar Rate Advances, or
on the date of the proposed
Borrowing in the case of a Borrowing
consisting of Base Rate Advances, to the
Administrative Agent, which shall give to
each Lender prompt notice thereof by
telecopier or electronic mail. Each such
notice of a Borrowing (a "Notice of
Borrowing") shall be by telephone,
confirmed immediately in writing, or
telecopier or electronic mail, in
substantially the form of Exhibit B,
specifying therein (i) the identity of the
Borrower and (ii) the requested (A)
date of such Borrowing, (B) Type of
Advances comprising such Borrowing, (C)
aggregate amount of such Borrowing and (D)
in the case of a Borrowing
consisting of Eurodollar Rate Advances,
initial Interest Period for each such
Advance. Each Lender shall, before 12:00
noon (New York City time) on the date
of such Borrowing, make available for the
account of its Applicable Lending
Office to the Administrative Agent at the
Administrative Agent's Account, in
immediately available funds, such Lender's
ratable portion of such Borrowing in
accordance with the respective Commitment
of such Lender under the applicable
Facility and the other Appropriate Lenders.
After the Administrative Agent's
receipt of such funds and upon fulfillment
of the applicable conditions set
forth in Article III, the Administrative
Agent shall (i) with respect to the
Initial Borrowing, directly apply (x) the
Revolving Advances for the account of
AYE to the repayment of the Existing AYE
Debt and (y) the L/C Credit Extensions
for the account of AYE to the continuance
of the Existing L/Cs as AYE Letters
of Credit, (ii) with the respect to the
single Term Borrowing, directly apply
the Term Advances for the account of AYE to
the repayment of the principal
amount of the 7.75% Notes and (iii) with
respect to subsequent Revolving
Borrowings, make such funds available to
the relevant Borrower, by crediting
such Borrower's Borrowing Account.
(b) Anything in subsection (a) above to the contrary
notwithstanding,
(i) no Borrower may select Eurodollar Rate
Advances for any Borrowing if the
aggregate amount of such Borrowing is less
than $2,000,000 or if the obligation
of the Lenders to make Eurodollar Rate
Advances shall then be suspended
pursuant to Section 2.10 or 2.11 and (ii)
the Advances may not be outstanding
as part of more than ten separate Revolving
Borrowings and the Term Advances
may not be outstanding as part of more than
one Borrowing.
(c) Each Notice of Borrowing shall be irrevocable and binding on
the
Borrower issuing such Notice of Borrowing.
In the case of any Borrowing that
the relevant Borrower has specified in the
related Notice of Borrowing is to be
comprised of Eurodollar Rate Advances, such
Borrower shall indemnify each
Appropriate Lender against any loss, cost
or expense incurred by such Lender as
a result of any failure to fulfill on or
before the date specified in such
Notice of Borrowing for such Borrowing the
applicable conditions set forth in
Article III, including any loss (including
loss of anticipated profits), cost
or expense incurred by reason of the
liquidation or reemployment of deposits or
other funds acquired by such Lender to fund
the Advance to be made by such
Lender as part of such Borrowing when such
Advance, as a result of such
failure, is not made on such date.
(d) Subject to the Administrative Agent giving prompt notice of
the
relevant Notice of Borrowing received by
the Administrative Agent to the Term
Lenders or the Revolving Lenders, as the
case may be, unless the Administrative
Agent shall have received notice from an
Appropriate Lender prior to the date
of the Borrowing requested under such
Notice of Borrowing that such Lender will
not make available to the Administrative
Agent such Lender's ratable portion of
such Borrowing, the Administrative Agent
may assume that such Lender has made
such portion available to the
Administrative Agent on the date of such
Borrowing in accordance with subsection (a)
of this Section 2.02 and the
Administrative Agent may, in reliance upon
such assumption, make available to
the relevant Borrower a corresponding
amount. If and to the extent that such
Lender shall not have so made such ratable
portion available to the
Administrative Agent, such Lender and such
Borrower severally agree to repay or
pay to the Administrative Agent forthwith
on demand such corresponding amount
and to pay interest thereon, for each day
from the date such amount is made
available to such Borrower until the date
such amount is repaid or paid to the
Administrative Agent, at (i) in the case of
such Borrower, the interest rate
applicable at such time under Section 2.07
to Advances comprising such
Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such
Lender shall pay to the Administrative
Agent such corresponding amount, such
amount so paid shall constitute such
Lender's Advance as part of such Borrowing
for all purposes.
(e) The failure of any Lender to make the Advance to be made by it
as
part of any Borrowing shall not relieve any
other Lender of its obligation, if
any, hereunder to make its Advance on the
date of such Borrowing, but no Lender
shall be responsible for the failure of any
other Lender to make the Advance to
be made by such other Lender on the date of
any Borrowing.
SECTION 2.03. Issuance of Letters of Credit; Drawings and
Reimbursements; Auto-Extension Letters of
Credit; Funding of Participations.
(a) Procedures for Issuance and Amendment
of Letters of Credit; Auto-Extension
Letters of Credit. (i) Each Letter of
Credit shall be issued or amended, as the
case may be, upon the request of the
Related Borrower delivered to an Issuing
Bank (with a copy to the Administrative
Agent) in the form of a Letter of
Credit Application, appropriately completed
and signed by a Responsible Officer
of such Borrower. Such Letter of Credit
Application must be received by such
Issuing Bank and the Administrative Agent
not later than 10:00 a.m. (New York
City time) at least one (1) Business Day
(or such later date and time as the
Administrative Agent and the Issuing Bank
may agree in a particular instance in
their sole discretion) prior to the
proposed issuance date or date of
amendment, as the case may be. In the case
of a request for an initial issuance
of a Letter of Credit, such Letter of
Credit Application shall specify in form
and detail satisfactory to the respective
Issuing Bank: (A) the proposed
issuance date of the requested Letter of
Credit (which shall be a Business
Day); (B) the amount thereof; (C) the
expiry date thereof (which date shall be
not later than the earlier of (a) the date
which is twelve (12) months after
the proposed issuance date and (b) the
Letter of Credit Expiration Date); (D)
the name and address of the beneficiary
thereof; (E) the documents to be
presented by such beneficiary in case of
any drawing thereunder; (F) the full
text of any certificate to be presented by
such beneficiary in case of any
drawing thereunder; (G) whether such Letter
of Credit is to be or, in the case
of any amendment to any Letter of Credit,
is, an AYE Letter of Credit, AESC
Indirect Letter of Credit or AESC Direct
Letter of Credit; and (H) such other
matters as such Issuing Bank may require.
In the case of a request for an
amendment of any outstanding Letter of
Credit, such Letter of Credit
Application shall specify in form and
detail satisfactory to the Issuing Bank
(A) the Letter of Credit to be amended; (B)
the proposed date of amendment
thereof (which shall be a Business Day);
(C) the nature of the proposed
amendment; and (D) such other matters as
such Issuing Bank may require.
Additionally, the Related Borrower shall
furnish to each Issuing Bank and the
Administrative Agent such other documents
and information pertaining to such
requested Letter of Credit issuance or
amendment, including any Issuer
Documents, as each such Issuing Bank or the
Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit
Application, the Issuing Bank will confirm with the
Administrative
Agent (by telephone or in writing) that the Administrative
Agent
has received a copy of such Letter of Credit Application from
the
Related Borrower and, if not, such Issuing Bank will provide
the
Administrative Agent with a copy thereof. Unless such Issuing
Bank
has received written notice from any Revolving Lender, the
Administrative Agent or the Related Borrower, at least one (1)
Business Day prior to the requested date of issuance or
amendment
of the applicable Letter of Credit, that one or more applicable
conditions contained in Article III shall not then be
satisfied,
then, subject to the terms and conditions hereof, such Issuing
Bank
shall, on the requested date, make an L/C Credit Extension for
the
account of such Related Borrower (or the applicable Subsidiary)
or
enter into the applicable amendment, as the case may be, in
each
case in accordance with such Issuing Bank's usual and customary
business practices. Immediately upon the making of each L/C
Credit
Extension, each Revolving Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from such
Issuing Bank a risk participation in such L/C Credit Extension
in
an amount equal to the product of such Revolving Lender's Pro
Rata
Share times the amount of such L/C Credit Extension.
(iii) If the Related Borrower so requests in any applicable
Letter of Credit Application, the Issuing Bank may, in its sole
and
absolute discretion, agree to make an L/C Credit Extension that
has
automatic extension provisions (each, an "Auto-Extension Letter
of
Credit"); provided that any such Auto-Extension Letter of
Credit
must permit such Issuing Bank to prevent any such extension at
least once in each twelve-month period (commencing with the date
of
issuance of such Letter of Credit) or upon notice to such
Issuing
Bank by the Administrative Agent or the Related Borrower of an
Insolvency Proceeding with respect to such Related Borrower or
any
of its Subsidiaries, by giving prior notice to the beneficiary
thereof not later than a day (the "Non-Extension Notice Date")
in
each such
twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by such
Issuing Bank, the Related Borrower shall not be required to make
a
specific request to such Issuing Bank for any such extension.
Once
an Auto-Extension Letter of Credit has been issued, the
Revolving
Lenders shall be deemed to have authorized (but may not
require)
such Issuing Bank to permit the extension of such Letter of
Credit
at any time to an expiry date not later than the Letter of
Credit
Expiration Date; provided, however, that such Issuing Bank
shall
not permit any such extension if (A) such Issuing Bank has
determined that it would not be permitted, or would have no
obligation at such time to issue such Letter of Credit in its
revised form (as extended) under the terms hereof (by reason of
the
provisions of Sections 2.01(d), (e) or (f) or otherwise), or (B)
it
has received notice (which may be by telephone or in writing) on
or
before the day that is five Business Days before the
Non-Extension
Notice Date (1) from the Administrative Agent that the Required
Revolving Lenders have elected not to permit such extension or
(2)
from the Administrative Agent or any Revolving Lender that one
or
more of the applicable conditions specified in Section 3.02 is
not
then satisfied, and in each such case directing such Issuing
Bank
not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with
respect thereto or to the beneficiary thereof, such Issuing
Bank
will also deliver to the Related Borrower and the
Administrative
Agent a true and complete copy of such Letter of Credit or
amendment thereof.
(b) Drawings and Reimbursements; Funding of Participations. (i)
Upon
receipt from the beneficiary of any Letter
of Credit of any notice of a drawing
under such Letter of Credit, the Issuing
Bank shall notify the Administrative
Agent and the Related Borrower thereof. Not
later than 11:00 a.m. (New York
City time) on the date of any payment by
such Issuing Bank under a Letter of
Credit (each such date, an "Honor Date"),
the Related Borrower shall reimburse
such Issuing Bank through the
Administrative Agent in an amount equal to the
amount of such drawing. If the Related
Borrower fails to so reimburse such
Issuing Bank by such time, the
Administrative Agent shall promptly notify each
Revolving Lender of the Honor Date, the
amount of the unreimbursed drawing (the
"Unreimbursed Amount"), and the amount of
such Revolving Lender's Pro Rata
Share thereof. In such event, the Related
Borrower shall be deemed to have
requested a Revolving Borrowing of Base
Rate Advances to be disbursed on the
Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the
minimum and multiples specified in Section
2.01 for the principal amount of
Base Rate Advances, but subject to the
other conditions set forth in Section
2.01 and the conditions set forth in
Section 3.02 (other than the delivery of a
Notice of Borrowing). Any notice given by
such Issuing Bank or the
Administrative Agent pursuant to this
Section 2.03(b) may be given by telephone
if immediately confirmed in writing;
provided that the lack of such an
immediate confirmation shall not affect the
conclusiveness or binding effect of
such notice.
(ii) Each Revolving Lender (including the Revolving Lender
acting as Issuing Bank) shall upon any notice pursuant to
Section
2.03(b)(i) make funds available to the Administrative Agent for
the
account of such Issuing Bank at the Administrative Agent's
Account
in an amount equal to its Pro Rata Share of the Unreimbursed
Amount
not later than 1:00 p.m. (New York City time) on the Business
Day
specified in such notice by the Administrative Agent,
whereupon,
subject to the provisions of Section 2.03(b)(iii), each
Revolving
Lender that so makes funds available shall be deemed to have made
a
Base Rate Advance to the Related Borrower in such amount. The
Administrative Agent shall remit the funds so received to such
Issuing Bank.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Revolving Borrowing of Base Rate Advances
because the conditions set forth in Section 3.02 cannot be
satisfied or for any other reason, the Related Borrower shall
be
deemed to have incurred from the Issuing Bank an L/C Borrowing
in
the amount of the Unreimbursed Amount that is not so
refinanced,
which L/C Borrowing shall be due and payable on demand
(together
with
interest) and shall bear interest at a rate equal to the sum
of (A) the Base Rate in effect from time to time, plus (B) the
Applicable Margin in effect from time to time, plus (C) 2% per
annum. In such event, each Revolving Lender's payment to the
Administrative Agent for the account of such Issuing Bank
pursuant
to Section 2.03(b)(ii) shall be deemed payment in respect of
its
participation in such L/C Borrowing and shall constitute an L/C
Advance from such Revolving Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until each Revolving Lender funds its Revolving Advance
or L/C Advance pursuant to this Section 2.03(b) to reimburse
such
Issuing Bank for any amount drawn under any Letter of Credit,
interest in respect of such Revolving Lender's Pro Rata Share
of
such drawing shall be solely for the account of such Issuing
Bank.
(v) Each Revolving Lender's obligation to make Revolving
Advances or L/C Advances to reimburse any Issuing Bank for
amounts
drawn under Letters of Credit, as contemplated by this Section
2.03(b), shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such
Revolving Lender may have against the Issuing Bank, any Borrower
or
any other Person for any reason whatsoever; (B) the occurrence
or
continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing. No
such
making of an L/C Advance shall relieve or otherwise impair the
obligation of the Related Borrower to reimburse any Issuing
Bank
for the amount of any payment made by the Issuing Bank under
any
Letter of Credit, together with interest as provided herein.
(vi) If any Revolving Lender fails to make available to the
Administrative Agent for the account of any Issuing Bank any
amount
required to be paid by such Revolving Lender pursuant to the
foregoing provisions of this Section 2.03(b) by the time
specified
in Section 2.03(b)(ii), such Issuing Bank shall be entitled to
recover from such Revolving Lender (acting through the
Administrative Agent), on demand, such amount with interest
thereon
for the period from the date such payment is required to the
date
on which such payment is immediately available to such Issuing
Bank
at a rate per annum equal to the Federal Funds Rate from time
to
time in effect. A certificate of such Issuing Bank submitted to
any
Revolving Lender (through the Administrative Agent) with respect
to
any amounts owing under this Section 2.03(b)(vi) shall be
conclusive absent manifest error.
(c) Repayment of Participations. (i) At any time after an Issuing
Bank
has made a payment under any Letter of
Credit and has received from any
Revolving Lender such Revolving Lender's
L/C Advance in respect of such payment
in accordance with Section 2.03(b), if the
Administrative Agent receives for
the account of such Issuing Bank any
payment in respect of the related
Unreimbursed Amount or interest thereon
(whether directly from the Related
Borrower or otherwise, including proceeds
of Cash Collateral applied thereto by
the Administrative Agent), the
Administrative Agent will distribute to such
Revolving Lender its Pro Rata Share thereof
(appropriately adjusted, in the
case of interest payments, to reflect the
period of time during which such
Revolving Lender's L/C Advance was
outstanding) in the same funds as those
received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the account of an Issuing Bank pursuant to Section 2.03(b)(i)
is
required to be returned under any of the circumstances described
in
Section 2.11 (including pursuant to any settlement entered into
by
such Issuing Bank in its discretion), each Revolving Lender
shall
pay to the Administrative Agent for the account of such Issuing
Bank its Pro Rata Share thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to
the
date such amount is returned by such Revolving Lender, at a
rate
per annum equal to the Federal Funds Rate from time to time in
effect.
(d) Role of Issuing Bank. Each Revolving Lender and the
Borrowers
agree that, in paying any drawing under a
Letter of Credit, each Issuing Bank
shall not have any responsibility to obtain
any document (other than any sight
draft, certificates and documents expressly
required by any Letter of Credit)
or to ascertain or inquire as to the
validity or accuracy of any such document
or the authority of the Person executing or
delivering any such document. N
