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COMMON TERMS AGREEMENT
COMMON TERMS AGREEMENT dated as of February 21, 2003 made by and among:
ALLEGHENY ENERGY SUPPLY COMPANY, LLC, a Delaware limited liability company (the "Borrower");
Each of the Persons (as hereinafter defined) (other than the Borrower) listed on the signature pages hereto as a Grantor (the Borrower and the Persons so listed being, collectively, the "Grantors");
Each of the institutions listed on the signature pages hereto as a Refinancing Lender (as hereinafter defined) and any additional Refinancing Lender that becomes a party to the Refinancing Credit Agreement (as hereinafter defined) in accordance with the terms of the Refinancing Credit Agreement and this Agreement (as hereinafter defined), in either case for so long as such institution continues to be a party to the Refinancing Credit Agreement;
Each of the institutions listed on the signature pages hereto as a New Money Lender (as hereinafter defined) and any additional New Money Lender that becomes a party to the New Money Credit Agreement (as hereinafter defined) in accordance with the terms of the New Money Credit Agreement and this Agreement, in either case for so long as such institution continues to be a party to the New Money Credit Agreement;
Each of the institutions listed on the signature pages hereto as a Springdale Lender (as hereinafter defined) and any additional Springdale Lender that becomes a party to the Springdale Credit Agreement (as hereinafter defined) in accordance with the terms of the Springdale Credit Agreement and this Agreement, in either case for so long as such institution continues to be a party to the Springdale Credit Agreement;
BANK ONE, NA ("Bank One"), as the issuing bank for letters of credit pursuant to the Refinancing Credit Agreement (in such capacity, the "Refinancing Issuing Bank");
CITIBANK, N.A. ("Citibank"), not in its individual capacity except as expressly set forth herein but solely as (a) administrative agent for the Refinancing Lenders and the Refinancing Issuing Bank (in such capacity, the "Refinancing Lender Agent ") and (b) administrative agent for the New Money Lenders (in such capacity, "New Money Lender Agent");
THE BANK OF NOVA SCOTIA ("Scotia"), not in its individual capacity except as expressly set forth herein but solely as (a) administrative agent for the Springdale Lenders (in such capacity, the "Springdale Lender Agent") and (b) documentation agent for the Lenders (as hereinafter defined) (in such capacity, the "Documentation Agent"); and
JPMORGAN CHASE BANK ("JPMC"), not in its individual capacity except as expressly set forth herein but solely as syndication agent on behalf and for the benefit of the Lenders (in such capacity, the "Syndication Agent").
PRELIMINARY STATEMENTS
(1) As of the date hereof, the Borrower is indebted to certain banks and institutions (the "Existing Lenders") pursuant to one or more of the agreements listed in Part A of Schedule I (collectively, the "Existing Lender Debt Documents"), and the aggregate principal amount owed as of the date hereof to each Existing Lender under the Existing Lender Debt Documents is set forth in Part B of Schedule I opposite the name of such Existing Lender (all such amounts, collectively, the "Existing Lender Debt").
(2) As of the date hereof, one or more letters of credit, as listed in Part C of Schedule I (collectively, the "Existing Letters of Credit") have been issued for the account of the Borrower, and the amount as of the date hereof available for drawing(s) under each Existing Letter of Credit is set forth in Part D of Schedule I opposite such Existing Letter of Credit.
(3) As of the date hereof, (a) Power Trust 2000-A is indebted to certain banks and institutions (the "Existing Springdale Lenders") pursuant to one or more of the agreements listed in Part E-1 of Schedule I (collectively, the "Existing Springdale Debt Documents"), and the aggregate principal amount owed as of the date hereof to each Existing Springdale Lender under the Existing Springdale Debt Documents is set forth in Part F-1 of Schedule I opposite the name of such Existing Springdale Lender (all such amounts, collectively, the "Existing Springdale Debt") and (b) certain banks and institutions are the owners of equity in Power Trust 2000-A (the "Springdale Equity Participants") pursuant to one or more of the agreements listed in Part E-2 of Schedule I (collectively, the "Existing Springdale Equity Documents", and together with the Existing Springdale Debt Documents, the "Existing Springdale Documents"), and the aggregate principal amount owed as of the date hereof to each Springdale Equity Participant under the Existing Springdale Equity Documents is set forth in Part F-2 of Schedule I opposite the name of such Springdale Equity Participant (all such amounts, collectively, the "Existing Springdale Equity Participations", and together with the Existing Springdale Debt, the "Existing Springdale Lease Participations").
(4) The Borrower has given notice to Power Trust 2000-A of the exercise by the Borrower of its Purchase Option (as defined in the Springdale Participation Agreement (as hereinafter defined)) for the purpose of recognizing the Springdale Plant (as hereinafter defined) as its owned capital assets for all purposes, and in accordance therewith, record title for the Springdale Plant will be in the name of the Borrower, and the original intent of the Springdale Lease Documents (as hereinafter defined) will continue as follows: the Borrower will be recognized as the owner of the Springdale Plant for federal and state income tax purposes and bankruptcy purposes, and this Agreement and the other Financing Documents (as hereinafter defined) will continue the lien on the Borrower's interest in the Springdale Plant for the benefit of the Springdale Lenders.
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