Exhibit 10.59
EXECUTION COUNTERPART
REVOLVING CREDIT AGREEMENT,
DATED AS OF MARCH 29, 2007,
INTERNATIONAL TRANSMISSION COMPANY
MICHIGAN ELECTRIC TRANSMISSION COMPANY, LLC
AS THE BORROWERS,
VARIOUS FINANCIAL INSTITUTIONS AND OTHER
PERSONS FROM TIME TO TIME PARTIES HERETO,
AS THE LENDERS,
JPMORGAN CHASE BANK, N.A.,
AS THE ADMINISTRATIVE AGENT
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
AS SOLE LEAD ARRANGER AND SOLE BOOKRUNNER
COMERICA BANK
CREDIT SUISSE, CAYMAN ISLANDS BRANCH
▇▇▇▇▇▇ BROTHERS BANK, FSB
AS CO-SYNDICATION AGENTS
ARTICLE 1 DEFINITIONS .................................................... 1
1.1 Defined Terms ................................................... 1
1.2 Accounting terms; GAAP .......................................... 14
ARTICLE 2 AMOUNT AND TERMS OF CREDIT ..................................... 15
2.1 Commitments ..................................................... 15
2.2 Minimum Amount of Each Borrowing; Maximum Number of Borrowings .. 15
2.3 Notice of Borrowing ............................................. 15
2.4 Disbursement of Funds ........................................... 16
2.5 Repayment of Loans; Evidence of Debt ............................ 17
2.6 Changes in Type of Revolving Credit Loan ........................ 18
2.7 Pro Rata Borrowings ............................................. 19
2.8 Interest and Fees ............................................... 19
2.9 Interest Periods ................................................ 20
2.10 Increased Costs, Illegality, etc. ............................... 21
2.11 Compensation .................................................... 23
2.12 Change of Lending Office ........................................ 23
2.13 Notice of Certain Costs ......................................... 24
2.14 Extension of Commitment Termination Date ........................ 24
ARTICLE 3 LETTERS OF CREDIT .............................................. 25
3.1 Generally ....................................................... 25
3.2 Letter of Credit Requests and Information to Administrative
Agent ........................................................ 26
3.3 Letter of Credit Participations ................................. 26
3.4 Agreement to Repay Letter of Credit Drawings .................... 28
3.5 Increased Costs ................................................. 29
3.6 Successor Letter of Credit Issuer ............................... 30
ARTICLE 4 FEES; COMMITMENTS .............................................. 31
4.1 Fees ............................................................ 31
4.2 Voluntary Reduction of Revolving Credit Commitments ............. 32
4.3 Commitment Increases ............................................ 32
4.4 Mandatory Termination of Commitments ............................ 34
ARTICLE 5 PAYMENTS ....................................................... 34
5.1 Prepayments ..................................................... 34
5.2 Method and Place of Payment ..................................... 35
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5.3 Net Payments .................................................... 36
5.4 Computations of Interest and Fees ............................... 38
ARTICLE 6 CONDITIONS PRECEDENT ........................................... 39
6.1 Conditions Precedent to Initial Credit Event .................... 39
6.2 Conditions Precedent to All Credit Events ....................... 40
6.3 Conditions Precedent to the Reserved METC Amount ................ 41
ARTICLE 7 REPRESENTATIONS AND WARRANTIES ................................. 41
7.1 Organizational Status ........................................... 41
7.2 Capacity, Power and Authority ................................... 41
7.3 No Violation .................................................... 41
7.4 Litigation ...................................................... 42
7.5 Governmental Approvals .......................................... 42
7.6 True and Complete Disclosure .................................... 42
7.7 Financial Condition; Financial Statements ....................... 42
7.8 Tax Returns and Payments ........................................ 43
7.9 Environmental Matters ........................................... 43
7.10 Properties ...................................................... 43
7.11 Pension and Welfare Plans ....................................... 44
7.12 Regulations U and X ............................................. 44
7.13 Investment Company Act .......................................... 44
7.14 No Material Adverse Change ...................................... 44
7.15 Deemed Repetition of Representations and Warranties ............. 44
ARTICLE 8 AFFIRMATIVE COVENANTS .......................................... 45
8.1 Information Covenants ........................................... 45
8.2 Books, Record and Inspections ................................... 47
8.3 Maintenance of Insurance ........................................ 47
8.4 Payment of Taxes ................................................ 48
8.5 Organizational Existence ........................................ 48
8.6 Compliance with Statutes, Obligations, etc. ..................... 48
8.7 Good Repair ..................................................... 48
8.8 Transactions with Affiliates .................................... 48
8.9 End of Fiscal Years; Fiscal Quarters ............................ 49
8.10 Use of Proceeds ................................................. 49
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8.11 Changes in Business ............................................. 49
ARTICLE 9 NEGATIVE COVENANTS ............................................. 49
9.1 Limitation on Liens ............................................. 49
9.2 Limitation on Fundamental Changes ............................... 50
9.3 Limitation on Dividends ......................................... 51
9.4 Debt to Capitalization Ratio .................................... 51
9.5 Limitation on Sale-Lease Back Transactions ...................... 52
ARTICLE 10 EVENTS OF DEFAULT ............................................. 52
10.1 Payments ........................................................ 52
10.2 Representations, etc. ........................................... 52
10.3 Covenants ....................................................... 52
10.4 Default Under Other Agreements .................................. 53
10.5 Bankruptcy, etc. ................................................ 53
10.6 Judgments ....................................................... 54
10.7 Change of Ownership ............................................. 54
10.8 Pension Plans ................................................... 54
10.9 Remedies ........................................................ 54
10.10 Remedies Cumulative ............................................. 55
ARTICLE 11 THE ADMINISTRATIVE AGENT ...................................... 55
ARTICLE 12 MISCELLANEOUS ................................................. 57
12.1 Amendments and Waivers .......................................... 57
12.2 Notices ......................................................... 58
12.3 No Waiver; Cumulative Remedies .................................. 60
12.4 Survival of Representations and Warranties ...................... 60
12.5 Payment of Expenses and Taxes ................................... 60
12.6 Successors and Assigns; Participations and Assignments .......... 62
12.7 Replacements of Lenders under Certain Circumstances ............. 64
12.8 Adjustments; Set-off ............................................ 65
12.9 Marshalling; Payments Set Aside ................................. 67
12.10 Counterparts .................................................... 67
12.11 Severability .................................................... 67
12.12 Integration ..................................................... 67
12.13 Governing Law ................................................... 67
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12.14 Submission to Jurisdiction; Waivers ............................. 68
12.15 Acknowledgements ................................................ 68
12.16 Waivers of Jury Trial ........................................... 68
12.17 Confidentiality ................................................. 69
12.18 Treatment of Revolving Credit Loans ............................. 69
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SCHEDULES:
Schedule I Commitments
Schedule II Environmental Matters
Schedule III Pension and Welfare Matters
Schedule IV Outstanding Liens on Closing Date
EXHIBITS:
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Continuation
Exhibit C Form of Closing Certificate
Exhibit D Form of New Lender Supplement
Exhibit E Form of Commitment Increase Supplement
Exhibit F Form of Compliance Certificate
Exhibit G Form of Letter of Credit Request
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REVOLVING CREDIT AGREEMENT, dated as of March 29, 2007, among INTERNATIONAL
TRANSMISSION COMPANY, a Michigan corporation ("ITC"), MICHIGAN ELECTRIC
TRANSMISSION COMPANY, LLC, a Michigan limited liability company ("METC"),
various financial institutions and other Persons from time to time parties
hereto as lenders (each a "LENDER" and, collectively, the "LENDERS") and
JPMORGAN CHASE BANK, N.A. ("JPMCB"), as administrative agent (in such capacity,
the "ADMINISTRATIVE AGENT").
ITC and METC have requested that the Lenders make senior loans to them in
an aggregate principal amount not exceeding $140,000,000 (subject to increase to
$190,000,000 as provided herein) at any one time outstanding. The Lenders are
prepared to make such loans upon the terms and conditions hereof, and,
accordingly, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
As used herein, the following terms shall have the meanings specified in
this Article 1 unless the context otherwise requires (it being understood that
defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular):
1.1 DEFINED TERMS.
"ABR" shall mean, for any day, a rate per annum equal to the greater of (a)
the rate of interest (however designated) established by the Administrative
Agent as its prime rate in effect at its principal office in New York, New York
and (b) the Federal Funds Effective Rate in effect on such day plus 0.5%. Any
change in the ABR due to a change in any of the foregoing rates shall be
effective as of the opening of business on the effective date of such change in
such rate.
"ABR LOAN" shall mean each Loan bearing interest at the rate provided in
Section 2.8(a).
"ADMINISTRATIVE AGENT" shall have the meaning provided in the preamble to
this Agreement and shall include such other financial institution as may be
appointed as the successor administrative agent in the manner and to the extent
described in Section 11.9.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" shall mean, with respect to any Person, (a) any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such Person, and (b) any other Person in which such Person
directly or indirectly through Subsidiaries has a 10% or greater equity
interest. A Person shall be deemed to control a Person if such Person possesses,
directly or indirectly, the power (i) to vote 10% or more of the Voting Stock
having ordinary voting power for the election of directors (or the equivalent)
of such other Person or (ii) to direct or cause the direction of the management
and policies of such other Person, whether through the ownership of Capital
Stock, by contract or otherwise.
"AGREEMENT" shall mean this Revolving Credit Agreement, as the same may be
amended, modified, supplemented, restated or replaced from time to time.
"APPLICABLE ADDITIONAL INTEREST RATE" for the purpose of Sections 2.8(d)
and 4.1(b) shall have the meaning given to that term in the definition of
"Applicable Margin".
"APPLICABLE MARGIN", "APPLICABLE ADDITIONAL INTEREST RATE", "COMMITMENT FEE
RATE" and "TICKING FEE RATE" shall mean, with respect to either Borrower, for
any day, the applicable rate per annum set forth below under the caption
"Applicable Margin", "Applicable Additional Interest Rate", "Commitment Fee
Rate/Ticking Fee Rate", respectively, based upon the ratings by ▇▇▇▇▇'▇ and S&P,
respectively, applicable on such date to such Borrower's non-credit-enhanced
long term senior unsecured debt:
Applicable
Additional
Applicable Interest
Margin Rate Commitment
--------------------------- Fee
Borrower's Debt LIBOR ABR LIBOR ABR Rate/Ticking
Rating: Loan Loan Loan Loan Fee Rate
--------------- ----- ---- ----- ---- ------------
Category 1 0.20% 0% 0.05% 0% 0.05%
A+/A1 or higher
Category 2 0.25% 0% 0.05% 0% 0.06%
A/A2
Category 3 0.30% 0% 0.05% 0% 0.07%
A-/A3
Category 4 0.35% 0% 0.05% 0% 0.08%
BBB+/Baa1
Category 5 0.45% 0% 0.05% 0% 0.10%
BBB/Baa2
Category 6 0.625% 0% 0.10% 0% 0.125%
BBB-/Baa3
Category 7 0.75% 0% 0.10% 0% 0.175%
BB+/Ba1
Category 8 1.00% 0% 0.10% 0.10% 0.20%
BB/Ba2 or lower
For purposes of this definition, (i) if no non-credit-enhanced long term
senior unsecured debt rating is available, the Applicable Margin, the Applicable
Additional Interest Rate, the Commitment Fee Rate and the Ticking Fee Rate shall
be determined by reference to the Category next below the relevant Borrower's
long term senior secured debt rating, (ii) if the ratings established by ▇▇▇▇▇'▇
and S&P shall fall within different Categories, the Applicable Margin, the
Applicable Additional Interest Rate, the Commitment Fee Rate and the Ticking Fee
Rate shall be based on the higher of the two ratings unless one of the two
ratings is two or more Categories lower than the other, in which case the
Applicable Margin, the Applicable Additional Interest Rate, the Commitment Fee
Rate and the Ticking Fee Rate shall be determined by reference to the Category
next below the higher of the two Categories, (iii) if only one rating is
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available from either ▇▇▇▇▇'▇ or S&P, then such rating shall be used to
determine the applicable Category, (iv) if neither ▇▇▇▇▇'▇ nor S&P shall have in
effect a rating for the relevant Borrower's non-credit-enhanced long term senior
unsecured debt and no rating for such Borrower's long term senior secured debt,
then Category 8 above shall apply to the relevant Borrower, and (v) if the
ratings established or deemed to have been established by ▇▇▇▇▇'▇ and S&P shall
be changed (other than as a result of a change in the rating system of ▇▇▇▇▇'▇
or S&P), such change shall be effective as of the date on which it is first
announced by the applicable rating agency. Each change in the Applicable Margin,
Applicable Additional Interest Rate, the Commitment Fee Rate and the Ticking Fee
Rate shall apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of the
next such change. If the rating system of ▇▇▇▇▇'▇ or S&P shall change, or if
either such rating agency shall cease to be in the business of rating corporate
debt obligations, each Borrower and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Applicable Margin, the Applicable Additional Interest
Rate, the Commitment Fee Rate and the Ticking Fee Rate shall be determined by
reference to the rating most recently in effect prior to such change or
cessation.
"APPROVED FUND" shall mean 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 and that is administered or managed by a Lender, an Affiliate of a
Lender or an entity or an Affiliate of an entity that administers or manages a
Lender.
"ARRANGER" shall mean ▇.▇. ▇▇▇▇▇▇ Securities Inc.
"ASSIGNEE" shall have the meaning provided in Section 12.6(a)(ii).
"ASSIGNMENT AND ACCEPTANCE" shall mean the assignment and acceptance
agreement delivered by each Assignee pursuant to Section 12.6(a)(ii).
"ASSIGNMENT EFFECTIVE DATE" shall have the meaning provided in 12.6(a)(ii).
"ATTRIBUTABLE VALUE" means, with respect to any Sale and Leaseback
Transaction, as of the time of determination, the lesser of (i) the sale price
of the property or assets so leased multiplied by a fraction the numerator of
which is the remaining portion of the base term of the lease included in such
Sale and Leaseback Transaction and the denominator of which is the base term of
such lease, and (ii) the total obligation (discounted to present value at the
rate of interest specified by the terms of such lease) of the lessee for rental
payments (other than amounts required to be paid on account of property taxes as
well as maintenance, repairs, insurance, water rates and other items which do
not constitute payments for property rights) during the remaining portion of the
base term of the lease included in such Sale and Leaseback Transaction.
"AUTHORIZED OFFICER" shall mean, with respect to either Borrower, the Chief
Executive Officer, the President, any Executive Vice-President, any Senior
Executive Vice President, any Senior Vice-President, the Chief Financial
Officer, the Treasurer or General Counsel of such
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Borrower or any other senior officer of such Borrower designated as such in
writing to the Administrative Agent by such Borrower.
"AVAILABLE REVOLVING CREDIT COMMITMENT" shall mean, with respect to any
Lender, an amount equal to the excess, if any, of (a) the amount of such
Lender's Revolving Credit Commitment under either Availability Limit over (b)
the sum of (i) the aggregate principal amount of all Revolving Credit Loans of
such Lender then outstanding under such Availability Limit and (ii) that portion
of such Lender's Letter of Credit Exposure under such Availability Limit.
"AVAILABILITY LIMIT" shall mean the ITC Availability Limit or the METC
Availability Limit, as applicable.
"BANKRUPTCY CODE" shall have the meaning provided in Section 10.5.
"BORROWERS" shall mean ITC and METC.
"BORROWING" shall mean the incurrence of one Type of Revolving Credit Loan
on a given date (or resulting from conversions or continuations on a given
date), by a particular Borrower and having, in the case of LIBOR Loans, the same
LIBOR Period (provided that ABR Loans incurred pursuant to Section 2.10(b) shall
be considered part of any related Borrowing of LIBOR Loans).
"BUSINESS" shall have the meaning provided in Section 8.11.
"BUSINESS DAY" shall mean (a) for all purposes other than as covered by
clause (b) below, any day excluding Saturday, Sunday and any day that shall be
in the City of New York a legal holiday or a day on which banking institutions
are authorized or required by law or other governmental actions to close, and
(b) with respect to all notices and determinations in connection with, and
payments of principal and interest on, LIBOR Loans, any day that is a Business
Day described in clause (a) excluding any day that shall be in the City of
London a legal holiday or a day on which banking institutions are authorized or
required by law or other governmental actions to close.
"CAPITAL LEASE", as applied to any Person, shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is, or is required to be, accounted for as a finance lease
obligation on the balance sheet of that Person.
"CAPITAL STOCK" shall mean common shares, preferred shares or other
equivalent equity interests (howsoever designated) of capital stock of a
corporation, equity preferred or common interests or membership interests in a
limited liability company, limited or general partnership interests in a
partnership or any other equivalent of such ownership interest.
"CAPITALIZED LEASE OBLIGATIONS" shall mean, as applied to any Person, all
obligations under Capital Leases of such Person and its Subsidiaries, in each
case taken at the amount thereof accounted for as liabilities in accordance with
GAAP.
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"CHANGE OF OWNERSHIP" shall mean and be deemed to have occurred if (i) any
person or group (within the meaning of the Securities and Exchange Act of 1934,
as amended, and the rules of the Securities and Exchange Commission thereunder)
shall become, directly or indirectly, the beneficial owner of capital stock
representing more than 35% of the ordinary voting power represented by the
issued and outstanding Voting Stock of Holdco; and/or (ii) (A) with respect to
ITC, Holdco ceases to own, directly or indirectly, 100% of the Voting Stock of
ITC, and (B) with respect to METC, Holdco ceases to own, directly or indirectly,
100% of the Voting Stock of METC; and/or (iii) a majority of the incumbent
directors of Holdco cease to be persons who were either (x) directors of Holdco
on the Closing Date or (y) new directors (such persons being called herein "New
Members") appointed or nominated for election by one or more persons who were
members of the board of directors of Holdco on the Closing Date or who were
appointed or nominated by one or more such New Members whether or not they were
members on the Closing Date.
"CLOSING DATE" shall mean March 29, 2007.
"CODE" shall mean the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time to
time.
"COMMITMENT FEE RATE" shall have the meaning given to that term in the
definition of "Applicable Margin".
"COMMITMENT INCREASE SUPPLEMENT" shall have the meaning provided for in
Section 3.3(d).
"COMPLIANCE CERTIFICATE" shall have the meaning provided in Section 8.1(c).
"CONFIDENTIAL INFORMATION" shall have the meaning provided in Section
12.17.
"CONTROL", "CONTROLS" and "CONTROLLED", when used with respect to any
Person, shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through ownership of Voting Stock, by
contract or otherwise.
"CONTROLLED GROUP" shall mean all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with either
Borrower, are treated as a single employer under Section 414(b) or 414(c) of the
Code or Section 4001 of ERISA.
"CREDIT EVENT" shall mean and include the making (but not the conversion or
continuation) of a Revolving Credit Loan and the issuance, extension or increase
of a Letter of Credit.
"DEBT TO CAPITALIZATION RATIO" shall mean, with respect to either Borrower,
as of any date of determination, the ratio of (a) Total Debt for such Borrower
for the relevant Test Period to (b) Total Capitalization for such Borrower for
such Test Period.
"DEFAULT" shall mean any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
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"DEFAULTING LENDER" shall mean any Lender with respect to which a Lender
Default is in effect.
"DOLLARS" and "$" shall mean lawful currency of the United States.
"ENVIRONMENTAL CLAIMS" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
non-compliance, investigations (other than internal reports prepared by either
Borrower or any Subsidiary of either Borrower (a) in the ordinary course of such
Person's business or (b) as required in connection with a financing transaction
or an acquisition or disposition of real estate) or proceedings relating in any
way to any Environmental Law or any permit issued, or any approval given, under
any such Environmental Law (hereinafter, "CLAIMS"), including (i) any and all
Claims by governmental or regulatory authorities for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law and (ii) any and all Claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety (with respect to Hazardous
Materials or conditions in the environment) or the environment.
"ENVIRONMENTAL LAW" shall mean any applicable federal, provincial, state,
foreign or local statute, law, rule, regulation, ordinance, code and rule of
common law now or hereafter in effect and in each case as amended, and any
binding judicial or administrative interpretation thereof, including any binding
judicial or administrative order, consent decree or judgment, relating to the
environment, human health or safety (with respect to Hazardous Materials or
conditions in the environment) or Hazardous Materials.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to Sections of ERISA also refer to any successor Sections thereto.
"EVENT OF DEFAULT" shall have the meaning provided in Article 10.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average of the per annum rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding 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 the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it.
"FEES" shall mean all amounts payable pursuant to, or referred to in,
Section 4.1.
"FERC" means the United States Federal Energy Regulatory Commission.
"FINAL RATE CASE DETERMINATION DATE" means in regard to the proceeding in
FERC Docket No. ER06-56 to establish METC's revenue requirement and transmission
service rates for the METC Pricing Zone under the Midwest Independent System
Operator, Inc., ("Midwest ISO") Transmission and Energy Markets Tariff, the
earlier of (a) FERC's acceptance or approval
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of the rates sought by METC pursuant to an order that does not suspend or make
subject to refund such rates sought by METC; (b) FERC's acceptance or approval
without modification or condition of a settlement agreement that resolves all
issues in the proceeding in Docket No. ER06-56; or (c) the issuance of a final
order by FERC with respect to such requested rates for which the period for
rehearing has expired or the disposition of any appeals of such order has been
completed.
"FINANCE PARTIES" shall mean the Administrative Agent and the Lenders.
"F.R.S. BOARD" shall mean the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" shall mean generally accepted accounting principles in the United
States as in effect from time to time.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GUARANTEE OBLIGATIONS" shall mean, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness of any other
Person (the "PRIMARY OBLIGOR") in any manner, whether directly or indirectly,
including any obligation of such Person, whether or not contingent, (a) to
purchase any such Indebtedness or any property constituting direct or indirect
security therefor, (b) to advance or supply funds (i) for the purchase or
payment of any such Indebtedness or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
Indebtedness of the ability of the primary obligor to make payment of such
Indebtedness or (d) otherwise to assure or hold harmless the owner of such
Indebtedness against loss in respect thereof; provided that, the term "Guarantee
Obligations" shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guarantee
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the Indebtedness in respect of which such Guarantee Obligation is made
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 or, if the Guarantee Obligation is
expressly limited to a specified amount, such specified amount.
"HAZARDOUS MATERIAL" shall mean (a) any petroleum or petroleum products,
radioactive materials, friable asbestos, urea formaldehyde foam insulation,
transformers or other equipment that contain dielectric fluid containing
regulated levels of polychlorinated biphenyls, and radon gas; (b) any chemicals,
materials or substances defined as or included in the definition of "hazardous
substances", "hazardous waste", "hazardous materials", "extremely hazardous
waste", "restricted hazardous waste", "toxic substances", "toxic pollutants",
"contaminants", or "pollutants", or words of similar import, under any
applicable Environmental Law; and (c) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any Governmental
Authority.
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"HOSTILE TAKE-OVER BID" shall mean an offer to purchase a controlling
interest in any Person by a Borrower or any of its Subsidiaries or in which a
Borrower or any of its Subsidiaries is involved, in respect of which the board
of directors (or equivalent governing body for such entity) of the target entity
has recommended against acceptance of such offer to the target entity's
shareholders or equity holders or which is similarly opposed or contested.
"HOLDCO" means ITC Holdings Corp., a Michigan corporation.
"INCLUDING" and "INCLUDE" shall mean including without limiting the
generality of any description preceding such term, and, for purposes of this
Agreement, the parties hereto agree that the rule of ejusdem generis shall not
be applicable to limit a general statement, which is followed by or referable to
an enumeration of specific matters, to matters similar to the matters
specifically mentioned.
"INDEBTEDNESS" of any Person shall mean (a) all indebtedness of such Person
for borrowed money, (b) the deferred purchase price of assets or services that
in accordance with GAAP would be classified as a liability on the balance sheet
of such Person, (c) the face amount of all letters of credit issued for the
account of such Person and, without duplication, all drafts drawn thereunder,
(d) all Indebtedness of a second Person secured by any Lien on any property
owned by such first Person, whether or not such Indebtedness has been assumed,
(e) all Capitalized Lease Obligations of such Person, (f) all existing payment
obligations of such Person under interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements, (g) all existing
payment obligations of such Person under commodity future contracts and other
similar agreements and (h) without duplication, all Guarantee Obligations of
such Person; provided that, Indebtedness shall not include current payables and
accrued expenses, in each case arising in the ordinary course of business.
"ITC" shall have the meaning provided in the recitals to this Agreement.
"ITC AVAILABILITY LIMIT" means, subject to Section 4.3, the portion of the
Revolving Credit Commitments available to ITC and equal to $80,000,000.
"ITC FIRST MORTGAGE INDENTURE" shall mean the First Mortgage and Deed of
Trust, dated as of July 15, 2003, between ITC and BNY Midwest Trust Company, as
trustee thereunder, as the same may be amended, supplemented or otherwise
modified and in effect from time to time.
"ITC REVOLVING CREDIT AGREEMENT" shall mean the Revolving Credit Agreement,
dated as of July 16, 2003 (as amended, supplemented or otherwise modified from
time to time), among ITC, various financial institutions and other Persons from
time to time parties thereto as lenders and Canadian Imperial Bank of Commerce,
as administrative agent.
"L/C MATURITY DATE" shall mean the date that is five Business Days prior to
the Revolving Credit Maturity Date.
"L/C PARTICIPANT" shall have the meaning provided in Section 3.3(a).
8
"L/C PARTICIPATION" shall have the meaning provided in Section 3.3(a).
"LENDER" and "LENDERS" shall have the respective meanings provided in the
preamble to this Agreement.
"LENDER DEFAULT" shall mean a Lender having notified the Administrative
Agent and/or the Borrowers that it does not intend to comply with the
obligations under Section 2.1(a) as a result of the control of such Lender being
assumed by any regulatory authority or the appointment of a receiver or
conservator with respect to such Lender at the direction or request of any
regulatory agency or authority.
"LETTER OF CREDIT" shall mean each standby letter of credit issued pursuant
to Section 3.1.
"LETTER OF CREDIT EXPOSURE" shall mean, with respect to any Lender, the sum
of (a) the amount of any Unpaid Drawings on Letters of Credit in respect of
which such Lender has made (or is required to have made) payments to the Letter
of Credit Issuer pursuant to Section 3.4(a) and (b) such Lender's Revolving
Credit Commitment Percentage of the Letter of Credit Outstanding (excluding the
portion thereof consisting of Unpaid Drawings in respect of which the Lenders
have made (or are required to have made) payments to the Letter of Credit Issuer
pursuant to Section 3.4(a)).
"LETTER OF CREDIT FEE" shall have the meaning provided in Section 4.1(b).
"LETTER OF CREDIT ISSUER" shall mean JPMCB, any of its Affiliates or any
successor thereto pursuant to Section 3.6.
"LETTER OF CREDIT OUTSTANDING" shall mean, at any time, the sum, without
duplication, of (a) the aggregate Stated Amount of all outstanding Letters of
Credit and (b) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
"LETTER OF CREDIT REQUEST" shall have the meaning provided in Section 3.2.
"LIBOR" shall mean, with respect to each LIBOR Period for each LIBOR Loan,
a rate per annum, expressed on the basis of a 360 day year, equal to the annual
interest rate for deposits of Dollars for a maturity most nearly comparable to
such LIBOR Period which appears on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) as of 11:00 a.m.
(London time) on the second Business Day prior to the commencement of such LIBOR
Period; provided that if such Service is not available on such day, then the
interest rate at which the Administrative Agent is offered deposits of Dollars
by leading banks in the London interbank market as of 11:00 a.m. (London time)
on the second Business Day prior to the commencement of such LIBOR Period, for
delivery on the first day of such LIBOR Period for the number of days comprised
in such LIBOR Period and in an amount comparable to the amount of such LIBOR
Loan.
9
"LIBOR LOAN" shall mean each Loan bearing interest at the rate provided in
Section 2.8(b).
"LIBOR PERIOD" shall mean, with respect to a LIBOR Loan, the interest
period selected by the relevant Borrower for such LIBOR Loan in accordance with
Section 2.9.
"LIEN" shall mean any mortgage, pledge, security interest, hypothecation,
assignment by way of security, lien (statutory or other) or similar encumbrance
(including any agreement to give any of the foregoing, any conditional sale or
other title retention agreement or any lease in the nature thereof).
"MATERIAL ADVERSE EFFECT" shall mean, with respect to a Borrower, a
circumstance or condition affecting the business, assets, operations, properties
or financial condition of such Borrower and its Subsidiaries taken as a whole
that would materially adversely affect the ability of such Borrower to perform
its obligations under this Agreement.
"METC" shall have the meaning provided in the recitals to this Agreement.
"METC ADDITIONAL CONDITIONS DATE" shall have the meaning provided in
Section 4.1(a).
"METC AVAILABILITY LIMIT" means, subject to Section 3.3, the portion of the
Revolving Credit Commitments available to METC and equal to $60,000,000;
provided that the aggregate amount of the Revolving Credit Exposure of all of
the Lenders to METC may not exceed $35,000,000 until such time as the conditions
precedent to the availability of the Reserved METC Amount set forth in Section
6.3 have been satisfied.
"METC CREDIT AGREEMENT" shall mean the $35,000,000 Credit Agreement, dated
as of December 10, 2003 (as amended, supplemented or otherwise modified from
time to time), among METC, the several lenders from time to time parties
thereto, Comerica Bank, as syndication agent and JPMCB, as administrative agent.
"METC FIRST MORTGAGE INDENTURE" means the First Mortgage Indenture, dated
as of December 10, 2003, between METC and JPMorgan Chase Bank, N.A., as Trustee,
as the same may be amended, supplemented or otherwise modified from time to
time.
"MINIMUM BORROWING AMOUNT" shall mean $500,000.
"MOODY'S" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or any successor by
merger or consolidation to its business.
"NEW LENDER" shall have the meaning provided in Section 4.3.
"NEW LENDER SUPPLEMENT" shall have the meaning provided in Section 4.3.
"NON-U.S. LENDER" shall mean any Lender that is not a "United States
person", as defined under Section 7701(a)(30) of the Code.
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"NOTICE OF BORROWING" shall mean a Notice of Borrowing provided pursuant to
Section 2.3(a), substantially in the form of Exhibit A.
"NOTICE OF CONTINUATION" shall have the meaning provided in Section 2.6(a).
"ORGANIC DOCUMENT" shall mean, relative to any Person, its certificate of
incorporation, by-laws, certificate of partnership, partnership agreement,
certificate of formation, limited liability agreement, operating agreement and
all shareholder agreements, voting trusts and similar arrangements applicable to
any of such Person's Capital Stock.
"PARTICIPANT" shall have the meaning provided in Section 12.6(a)(i).
"PENSION PLAN" shall mean a "pension plan", as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which
either Borrower or any corporation, trade or business that is, along with such
Borrower, a member of a Controlled Group, is a contributing employer or a
sponsor.
"PERMITTED LIENS" shall mean (a) Liens for taxes, assessments, customs
duties or governmental charges or claims not yet due or which are being
contested in good faith and by appropriate proceedings for which appropriate
provisions have been established in accordance with GAAP; (b) Liens in respect
of property or assets of a Borrower or any of its Subsidiaries imposed by law,
such as carriers', warehousemen's and or mechanics' Liens, and other similar
Liens arising in the ordinary course of business and Liens arising under zoning
laws and ordinances and municipal bylaws and regulations, in each case so long
as such Liens arise in the ordinary course of business and do not individually
or in the aggregate have a Material Adverse Effect; (c) Liens arising from
judgments or decrees in circumstances not constituting an Event of Default under
Section 10.6; (d) Liens (other than those arising by Requirement of Law that are
not permitted by clause (a) of this definition) incurred or deposits made in
connection with workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in the ordinary
course of business; (e) ground leases in respect of real property on which
facilities owned or leased by a Borrower or any of its Subsidiaries are located;
(f) easements, rights-of-way, restrictive covenants or agreements, minor defects
or irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business of either Borrower and its
Subsidiaries taken as a whole; (g) any interest or title of a lessor or secured
by a lessor's interest under any lease permitted by this Agreement; (h) Liens
incurred by the licensing of trademarks by either Borrower or any of its
Subsidiaries to others in the ordinary course of business; and (i) leases or
subleases granted to others, not interfering in any material respect with the
business of either Borrower and its Subsidiaries taken as a whole.
"PERSON" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any Governmental Authority.
"REAL ESTATE" shall have the meaning provided in Section 8.1(e).
"REGISTER" shall have the meaning provided in Section 12.6(c).
11
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" shall mean, at any date, Lenders having or holding more
than 50% of the Total Revolving Credit Commitment at such date (provided that in
the case of a Defaulting Lender, for this purpose only, its Revolving Credit
Commitment shall be deemed to be equal to the outstanding principal amount of
all Revolving Credit Loans of such Defaulting Lender at such date) or, if the
Revolving Credit Commitments have terminated, more than 50% of the outstanding
principal amount of all Revolving Credit Loans and Letter of Credit Exposure on
such date.
"REQUIREMENT OF LAW" shall mean, as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule, regulation, guideline, policy or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or
assets or to which such Person or any of its property or assets is subject and
whether or not having the force of law.
"RESERVED METC AMOUNT" means $25,000,000.
"REVOLVING CREDIT COMMITMENT" shall mean, (a) with respect to each Lender
that is a Lender on the date hereof, the amount set forth on Schedule I as such
Lender's "Revolving Credit Commitment", (b) in the case of any Lender that
becomes a Lender after the date hereof by assignment, the amount specified as
such Lender's "Revolving Credit Commitment" in the Assignment and Acceptance
contemplated in Section 12.6 pursuant to which such Lender assumed a portion of
the Total Revolving Credit Commitment, and (c) in the case of any Lender that
becomes a Lender after the date hereof pursuant to Section 4.3, the amount
specified as such Lender's "Revolving Credit Commitment" in the New Lender
Supplement in Section 4.3 pursuant to which such Lender assumed a Revolving
Credit Commitment, in each case as the same may be changed from time to time
pursuant to the terms hereof (including pursuant to Sections 2.14, 4.2 and
12.6).
"REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean, at any time, for each
Lender, the percentage obtained by dividing (a) such Lender's Revolving Credit
Commitment by (b) the Total Revolving Credit Commitment; provided that at any
time when the Total Revolving Credit Commitment shall have been terminated, each
Lender's Revolving Credit Commitment Percentage shall be the percentage obtained
by dividing (c) such Lender's Revolving Credit Exposure by (d) the aggregate
amount of the Revolving Credit Exposures of all the Lenders.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any Lender at any
time, the sum of (a) the aggregate principal amount of the Revolving Credit
Loans of such Lender then outstanding and (b) such Lender's Letter of Credit
Exposure at such time.
"REVOLVING CREDIT LOAN" shall have the meaning provided in Section 2.1(a).
"REVOLVING CREDIT MATURITY DATE" shall mean March 29, 2012 (subject to
extension (in the case of each Lender consenting thereto) as provided in Section
2.14), or, if earlier, the date
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on which the Revolving Credit Commitments shall have terminated or shall have
been reduced to zero.
"SALE AND LEASEBACK TRANSACTION" shall have the meaning provided in Section
9.5.
"S&P" shall mean Standard & Poor's Ratings Services or any successor by
merger or consolidation to its business.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"STATED AMOUNT" of any Letter of Credit shall mean the maximum amount from
time to time available to be drawn thereunder, determined without regard to
whether any conditions to drawing could then be met.
"SUBSIDIARY" of any Person shall mean and include (a) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock or issued share capital of any
class or classes of such corporation shall have or might have voting power by
reason of the happening of any, contingency) is at the time owned by such Person
directly or indirectly through Subsidiaries and (b) any partnership,
association, joint venture or other entity in which such Person directly or
indirectly through Subsidiaries has more than a 50% equity interest and more
than a 50% voting interest at the time and (c) any other corporation,
partnership, joint venture or other entity (i) the accounts of which would be
consolidated with those of such Person in such Person's consolidated financial
statements if such statements were prepared in accordance with GAAP and (ii)
that is controlled (as defined in clause (b) of the definition of such term in
the definition of the term "Affiliate") by such Person.
"SUCCESSOR BORROWER" shall have the meaning provided in Section 9.2(a).
"TAXES" shall have the meaning provided in Section 5.3(a)(i).
"TEST PERIOD" shall mean, for any determination under this Agreement, the
four consecutive fiscal quarters of the relevant Borrower then last ended.
"TICKING FEE RATE" shall have the meaning given to that term in the
definition of "Applicable Margin".
"TOTAL CAPITALIZATION" shall mean, as of any date of determination, for
either Borrower, the sum, without duplication, of (a) Total Debt of such
Borrower and (b) the total stockholder's equity of such Borrower as determined
in accordance with GAAP; provided that the term "Total Capitalization" shall
exclude the non-cash effects of the March 31, 2006 FAS Statement titled
"Employers' Accounting for Defined Pension and Postretirement Plans".
"TOTAL DEBT" shall mean, as of any date of determination, for either
Borrower, (a) the sum, without duplication, of (i) all Indebtedness of such
Borrower and its Subsidiaries for borrowed money outstanding on such date, (ii)
all Capitalized Lease Obligations of such Borrower and its Subsidiaries
outstanding on such date and (iii) all Indebtedness of such Borrower and its
Subsidiaries of the types described in clauses (b) and (d) of the definition of
13
Indebtedness (but in the case of clause (d), only to the extent such
Indebtedness is assumed by such Borrower or any of its Subsidiaries), all
calculated on a consolidated basis in accordance with GAAP and to the extent
reflected as Indebtedness on the consolidated balance sheet of such Borrower in
accordance with GAAP minus (b) the aggregate amount of cash held by such
Borrower and its Subsidiaries as at such date and included in the cash accounts
listed on the consolidated balance sheet of such Borrower and its Subsidiaries
and deposited with the Administrative Agent to the extent the use thereof for
application to payment of Indebtedness of such Borrower and its Subsidiaries is
not prohibited by law or any contract to which such Borrower or any of its
Subsidiaries is a party (but in each case excluding equity securities that are
mandatorily redeemable 91 or more days after the Revolving Credit Maturity Date
and that are classified as hybrid securities by Moody's and/or S&P).
"TOTAL REVOLVING CREDIT COMMITMENT" shall mean the sum of the Revolving
Credit Commitments of all the Lenders, which as of the Closing Date was
$140,000,000.
"TRANSACTIONS" shall mean the execution, delivery and performance by each
Borrower of this Agreement, the borrowing of the Revolving Credit Loans and the
use of the proceeds thereof and requesting the issuance of Letters of Credit
hereunder.
"TRANSFEREE" shall have the meaning provided in Section 12.6(e).
"TYPE" shall mean as to any Revolving Credit Loan, its nature as an ABR
Loan or a LIBOR Loan.
"UNITED STATES" and "US" shall mean the United States of America.
"UNPAID DRAWING" shall have the meaning provided in Section 3.4(a).
"VOTING STOCK" shall mean Capital Stock of a Person which carries voting
rights or the right to Control such Person under any circumstances; provided
that Capital Stock which carries the right to vote or Control conditionally upon
the happening of an event shall not be considered Voting Stock until the
occurrence of such event and then only during the continuance of such event.
"WELFARE PLAN" shall mean a "welfare plan", as such term is defined in
Section 3(1) of ERISA.
1.2 ACCOUNTING TERMS; GAAP.
Except as otherwise expressly provided herein, all terms of an accounting
or financial nature shall be construed in accordance with GAAP, as in effect
from time to time; provided that, if the Borrower notifies the Administrative
Agent that the Borrower requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in GAAP or in
the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become
14
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.
ARTICLE 2
AMOUNT AND TERMS OF CREDIT
2.1 COMMITMENTS.
(a) Subject to and upon the terms and conditions herein set forth, each
Lender severally agrees to make a loan or loans (each a "REVOLVING CREDIT LOAN"
and, collectively, the "REVOLVING CREDIT LOANS") to each Borrower, which
Revolving Credit Loans (i) shall be made at any time and from time to time on
and after the Closing Date and prior to the Revolving Credit Maturity Date, (ii)
may, at the option of such Borrower, be incurred and maintained as, and/or
converted into, ABR Loans or LIBOR Loans (provided that all Revolving Credit
Loans made by each of the Lenders pursuant to the same Borrowing shall, unless
otherwise specifically provided herein, consist entirely of Revolving Credit
Loans of the same Type), (iii) may be repaid and reborrowed in accordance with
the provisions hereof and shall be repaid in full on the Revolving Credit
Maturity Date, (iv) for any such Lender at any time, shall not result in such
Lender's Revolving Credit Exposure at such time exceeding such Lender's
Revolving Credit Commitment at such time, (v) after giving effect thereto and to
the application of the proceeds thereof, shall not result at any time in the
aggregate amount of the Lenders' Revolving Credit Exposures at such time
exceeding (A) in the case of ITC, the ITC Availability Limit, (B) in the case of
METC, the METC Availability Limit and (C) the Total Revolving Credit Commitment
then in effect. As of the Closing Date, the Total Revolving Credit Commitment
will be $140,000,000.
(b) Each Borrower shall use the proceeds from the Revolving Credit Loans
for general corporate purposes; provided that, notwithstanding any of the
foregoing, none of the proceeds from Revolving Credit Loans may be used to
finance any Hostile Take-Over Bid.
(c) The obligations of each Borrower with respect to the Revolving Credit
Loans and Letters of Credit under this Agreement shall be several but not joint
and neither Borrower shall be liable with respect to Revolving Credit Loans made
to, or Letters of Credit issued at the request of, the other Borrower under this
Agreement.
2.2 MINIMUM AMOUNT OF EACH BORROWING; MAXIMUM NUMBER OF BORROWINGS.
The aggregate principal amount of each Borrowing of Revolving Credit Loans
shall be in a multiple of $100,000 and shall not be less than the Minimum
Borrowing Amount. More than one Borrowing may be incurred on any date; provided
that at no time shall there be outstanding more than 15 Borrowings of LIBOR
Loans under this Agreement.
2.3 NOTICE OF BORROWING.
(a) Whenever a Borrower desires to incur Revolving Credit Loans hereunder
(other than Borrowings to repay Unpaid Drawings), it shall give the
Administrative Agent at an office of the Administrative Agent from time to time
notified by the Administrative Agent to such Borrower (but initially the office
set forth for the Administrative Agent in Section 12.2(a)(ii)), (i) a written
Notice of Borrowing (or telephonic notice promptly confirmed in writing) prior
to
15
12:00 noon (New York time) at least three Business Days prior to the proposed
day of each Borrowing of LIBOR Loans and (ii) a written Notice of Borrowing (or
telephonic notice promptly confirmed in writing) prior to 10:00 a.m. (New York
time) on the proposed day of each Borrowing of ABR Loans. Each such Notice of
Borrowing, except as otherwise expressly provided in Section 2.10, shall be
irrevocable and shall specify (i) the aggregate principal amount of the
Revolving Credit Loans to be made pursuant to such Borrowing, (ii) the date of
Borrowing (which shall be a Business Day), (iii) whether the Borrowing shall
consist of ABR Loans or LIBOR Loans, (iv) if such Borrowing shall consist of
LIBOR Loans, the LIBOR Period to be initially applicable thereto and (v) the
number and location of the account to which funds are to be disbursed. The
Administrative Agent shall promptly give each Lender written notice (or
telephonic notice promptly confirmed in writing) of each proposed Borrowing of
Revolving Credit Loans, of such Lender's proportionate share thereof and of the
other matters covered by the related Notice of Borrowing.
(b) Without in any way limiting the obligation of each Borrower to confirm
in writing any notice it may give hereunder by telephone, the Administrative
Agent may act prior to receipt of written confirmation without liability upon
the basis of such telephonic notice believed by the Administrative Agent in good
faith to be from an Authorized Officer of such Borrower. In each such case the
applicable Borrower hereby waives the right to dispute the Administrative
Agent's record of the terms of any such telephonic notice.
(c) Borrowings to reimburse Unpaid Drawings shall be made upon the notice
specified in Section 3.4(c).
2.4 DISBURSEMENT OF FUNDS.
(a) No later than 12:00 Noon (New York time) on the date specified in each
Notice of Borrowing, each Lender will make available its pro rata portion, if
any, of each Borrowing requested to be made on such date in the manner provided
below.
(b) Each Lender shall make available all amounts it is to fund under any
Borrowing in immediately available funds to the Administrative Agent at an
office of the Administrative Agent from time to time notified by the
Administrative Agent to the Lenders (but initially the office set forth for the
Administrative Agent in Section 12.2(a)(ii)), and the Administrative Agent will
(except in the case of Borrowings to repay Unpaid Drawings) make available to
the relevant Borrower by depositing such funds as specified in the applicable
Notice of Borrowing, the aggregate of the amounts so made available. Unless the
Administrative Agent shall have been notified by any Lender prior to the date of
any such Borrowing that such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings to be made on
such date, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on such date of Borrowing, and the
Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the applicable
Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender and the Administrative
Agent has made available same to such Borrower, the Administrative Agent shall
be entitled to recover such corresponding amount from such Lender. If such
Lender does not pay such corresponding amount forthwith upon the Administrative
Agent's demand
16
therefor, the Administrative Agent shall promptly notify such Borrower, and such
Borrower shall immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover from such
Lender or Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to such Borrower to the date such corresponding
amount is recovered by the Administrative Agent, at a rate per annum equal to
(i) if paid by such Lender, at the Federal Funds Effective Rate or (ii) if paid
by a Borrower, the then-applicable rate of interest, calculated in accordance
with Section 2.8, for the respective Revolving Credit Loans.
(c) Nothing in this Section 2.4 shall be deemed to relieve any Lender from
its obligation to fulfill its commitments hereunder or to prejudice any rights
that a Borrower may have against any Lender as a result of any default by such
Lender hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to fulfill its commitments
hereunder).
2.5 REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) Each Borrower shall, for the benefit of the Lenders, on the Revolving
Credit Maturity Date, (i) repay to the Administrative Agent the then-unpaid
Revolving Credit Loans made to such Borrower and (ii) retire all other
then-outstanding Revolving Credit Exposure of such Borrower, other than Letters
of Credit that expire following the Revolving Credit Maturity Date for which
such Borrower provides or has provided cash collateral in an amount equal to the
Stated Amount of such Letter of Credit.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the Indebtedness of each Borrower to the
appropriate lending office of such Lender resulting from each Revolving Credit
Loan made by such lending office of such Lender from time to time, including the
amounts and currency of principal and interest payable and paid to such lending
office of such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
Section 12.6, and a sub-account for each Lender, in which Register and
sub-accounts (taken together) shall be recorded (i) the amount of each Revolving
Credit Loan made hereunder, the Type of each Revolving Credit Loan made and the
LIBOR Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the relevant Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from the relevant Borrower and each Lender's share thereof.
(d) The entries made in the Register and accounts and subaccounts
maintained pursuant to paragraphs (c) and (d) of this Section shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of each Borrower therein recorded; provided that the
failure of any Lender or the Administrative Agent to maintain such account, such
Register or such subaccount, as applicable, or any error therein, shall not in
any manner affect the obligation of such Borrower to repay (with applicable
interest) the Revolving Credit Loans made to it by such Lender in accordance
with the terms of this Agreement. In the event that there is an inconsistency
between the accounts maintained by a Lender pursuant to
17
Section 2.5(b) and the Register maintained by the Administrative Agent pursuant
to Section 12.6, the said Register shall prevail.
(e) All payments to be made by the Administrative Agent to any Lender
hereunder shall be made in accordance with the payment instructions of such
Lender set forth on the signature page of such Lender hereunder or, if such
Lender is an Assignee, set forth in the Assignment and Acceptance of such
Lender.
2.6 CHANGES IN TYPE OF REVOLVING CREDIT LOAN.
(a) Each Borrower shall have the option on any Business Day to convert all
or a portion equal to at least the Minimum Borrowing Amount of the outstanding
principal amount of Revolving Credit Loans made to it of one Type into a
Borrowing or Borrowings of another permitted Type or to continue the outstanding
principal amount of any LIBOR Loans as LIBOR Loans for an additional LIBOR
Period; provided that (i) no partial continuation of LIBOR Loans shall reduce
the outstanding principal amount of LIBOR Loans made pursuant to a single
Borrowing to less than the Minimum Borrowing Amount, (ii) ABR Loans of a
Borrower may not be converted into LIBOR Loans, if a Default or Event of Default
with respect to such Borrower is in existence on the date of the proposed
conversion and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such conversion, (iii)
LIBOR Loans of a Borrower may not be continued as LIBOR Loans for an additional
LIBOR Period if a Default or Event of Default with respect to such Borrower is
in existence on the date of the proposed continuation and the Administrative
Agent has or the Required Lenders have determined in its or their sole
discretion not to permit such continuation, (iv) no LIBOR Period in excess of
one month may be selected for any LIBOR Loan of a Borrower if a Default or Event
of Default with respect to such Borrower is in existence on the date of the
proposed continuation and the Administrative Agent has or the Required Lenders
have determined in its or their sole discretion not to permit such longer LIBOR
Period, (v) Borrowings resulting from continuations or conversions pursuant to
this Section 2.6 shall be limited in number as provided in Section 2.2 and (vi)
the outstanding principal amount of a Revolving Credit Loan of one Type may not
be converted into a Borrowing of another permitted Type until the end of the
current LIBOR Period for such Revolving Credit Loan. Each such continuation or
conversion shall be effected by the relevant Borrower by giving the
Administrative Agent at the location set forth in Section 12.2 prior to 12:00
Noon (New York time) at least three Business Days' prior written notice
substantially in the form of Exhibit B (or telephonic notice promptly confirmed
in writing) (each a "NOTICE OF CONTINUATION") specifying the Revolving Credit
Loans to be so continued or converted, the Type of Revolving Credit Loans to be
continued or converted into and, if such Revolving Credit Loans are to be
converted or continued as LIBOR Loans, the LIBOR Period to be initially
applicable thereto. The Administrative Agent shall give each Lender notice as
promptly as practicable of any such proposed continuation or conversion
affecting any of its Revolving Credit Loans. This Section shall not be construed
to permit either Borrower to change the currency of any Borrowing.
(b) If any Default or Event of Default with respect to a Borrower is in
existence at the time of any proposed continuation of any LIBOR Loans of such
Borrower and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion
18
not to permit such continuation, such LIBOR Loans shall be automatically
converted on the last day of the current LIBOR Period into ABR Loans.
(c) If upon the expiration of any LIBOR Period, the relevant Borrower has
failed to elect a new LIBOR Period to be applicable thereto as provided in
paragraph (a) above, such Borrower shall be deemed to have elected to convert
such Borrowing of LIBOR Loans, as the case may be, into a Borrowing of ABR
Loans, as the case may be, effective as of the expiration date of such current
LIBOR Period.
2.7 PRO RATA BORROWINGS.
Each Borrowing of Revolving Credit Loans under this Agreement shall be made
by the Lenders pro rata on the basis of their then-applicable Revolving Credit
Commitment Percentage; provided that the Administrative Agent may adjust the
proportions of the Lenders with respect to any Borrowing to be made by such
Lenders to ensure that no Lender's Revolving Credit Exposure (after granting its
portion of such Borrowing) exceeds its Revolving Credit Commitment. It is
understood that no Lender shall be responsible for any default by any other
Lender in its obligation to make Revolving Credit Loans hereunder and that each
Lender shall be obligated to make the Revolving Credit Loans provided to be made
by it hereunder, regardless of the failure of any other Lender to fulfill its
commitments hereunder.
2.8 INTEREST AND FEES.
(a) The unpaid principal amount of each ABR Loan made to each Borrower
shall bear interest from the date of the Borrowing thereof until maturity
(whether by acceleration or otherwise and both before and after default and
judgment) at a rate per annum that shall at all times be equal to the Applicable
Margin then in effect for such Borrower for ABR Loans plus the ABR in effect
from time to time.
(b) The unpaid principal amount of each LIBOR Loan made to each Borrower
shall bear interest from the date of the Borrowing thereof until maturity
(whether by acceleration or otherwise and both before and after default and
judgment) at a rate per annum that shall at all times be equal to the Applicable
Margin then in effect for such Borrower for LIBOR Loans plus the relevant LIBOR.
(c) For each day (a) on or prior to the Revolving Credit Maturity Date on
which the Revolving Credit Exposure with respect to either Borrower exceeds 50%
of such Borrower's Availability Limit or (b) after the Revolving Credit Maturity
Date on which the Revolving Credit Exposure with respect to either Borrower
exceeds 50% of such Borrower's Availability Limit as in effect immediately prior
to the termination or reduction to zero of such Availability Limit, such
Borrower shall pay to the Administrative Agent for the account of each Lender
additional interest on the Revolving Credit Loans made by such Lender to such
Borrower that are outstanding on such day at a rate per annum equal to the
Applicable Additional Interest Rate for such Borrower. Accrued additional
interest will be payable in respect of each outstanding Revolving Credit Loan on
each date on which interest is payable on such outstanding Revolving Credit
Loan, at the times specified in Section 2.8(e) hereof.
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(d) If all or a portion of (i) the principal amount of any Revolving Credit
Loan made to either Borrower or (ii) any interest thereon or fees payable
hereunder by either Borrower shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum that is (x) in the case of overdue principal, equal to the
rate that would otherwise be applicable thereto plus, to the extent permitted by
applicable law, 2.00% (after as well as before maturity and judgment), (y) in
the case of any overdue interest with respect to any Revolving Credit Loan,
equal to the rate of interest applicable to such Revolving Credit Loan plus, to
the extent permitted by applicable law, 2.00%, or (z) in the case of any overdue
fees or other amounts owing hereunder, equal to the rate of interest then
applicable to Revolving Credit Loans made to such Borrower maintained as ABR
Loans plus 2.00%, in each case from and including the date of such non-payment
to but excluding the date on which such amount is paid in full (after as well as
before maturity and judgment). All interest payable pursuant to this Section
2.8(c) shall be payable upon demand.
(e) Interest on each Revolving Credit Loan of each Borrower shall accrue
from and including the date of any Borrowing to but excluding the date of any
repayment thereof and shall, except as otherwise provided pursuant to Section
2.8(c), be payable by such Borrower (i) in respect of each ABR Loan, quarterly
in arrears on the last Business Day of each of March, June, September and
December, (ii) in respect of each LIBOR Loan, on the last day of each LIBOR
Period applicable thereto and, in the case of a LIBOR Period in excess of three
months, on each date occurring at three-month intervals after the first day of
such LIBOR Period, (iii) in respect of each Revolving Credit Loan on any
prepayment (on the amount prepaid), at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.
(f) All computations of interest hereunder shall be made in accordance with
Section 4.4.
(g) The Administrative Agent, upon determining the interest rate for any
Borrowing of LIBOR Loans, shall promptly notify the relevant Borrower and the
Lenders thereof. Each such determination shall, absent clearly demonstrable
error, be final and conclusive and binding on all parties hereto.
2.9 INTEREST PERIODS.
At the time a Borrower gives a Notice of Borrowing or Notice of
Continuation in respect of the making of, or conversion into or continuation as,
a Borrowing of LIBOR Loans prior to 10:00 a.m. (New York time) on the third
Business Day prior to the applicable date of making or conversion or
continuation of such LIBOR Loans, such Borrower shall have the right to elect by
giving the Administrative Agent written notice of (or telephonic notice promptly
confirmed in writing) the LIBOR Period applicable to such Borrowing, which LIBOR
Period shall, at the option of such Borrower, be one, two, three or six months.
Notwithstanding anything to the contrary contained above:
(a) the initial LIBOR Period for any Borrowing of LIBOR Loans shall
commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of ABR Loans) and each LIBOR Period occurring
thereafter in respect of
20
such Borrowing shall commence on the day on which the next preceding LIBOR
Period expires;
(b) if any LIBOR Period relating to a Borrowing of LIBOR Loans begins
on the last Business Day of a calendar month or begins on a day for which
there is no numerically corresponding day in the calendar month at the end
of such LIBOR Period, such LIBOR Period shall end on the last Business Day
of the calendar month at the end of such LIBOR Period;
(c) if any LIBOR Period would otherwise expire on a day that is not a
Business Day, such LIBOR Period shall expire on the next succeeding
Business Day; provided that if any LIBOR Period in respect of a LIBOR Loan
would otherwise expire on a day that is not a Business Day but is a day of
the month after which no further Business Day occurs in such month, such
LIBOR Period shall expire on the next preceding Business Day; and
(d) a Borrower shall not be entitled to elect any LIBOR Period in
respect of any LIBOR Loan if such LIBOR Period would extend beyond the
Revolving Credit Maturity Date.
2.10 INCREASED COSTS, ILLEGALITY, ETC.
(a) In the event that any Lender shall have reasonably determined (which
determination shall, absent clearly demonstrable error, be final and conclusive
and binding upon all parties hereto):
(i) on any date for determining LIBOR for a Borrowing of LIBOR Loans
for any LIBOR Period that by reason of any changes arising on or after the
date hereof affecting the London interbank market (x) deposits in Dollars
in the principal amounts of the Revolving Credit Loans comprising such
Borrowing are not readily available to such Lender in the London interbank
market or (y) adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
LIBOR; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any LIBOR Loans (other than any such increase or reduction attributable to
taxes) because of (x) any change since the date hereof in any applicable
law, governmental rule, regulation, guideline or order (or in the
interpretation or administration thereof and including the introduction of
any new law or governmental rule, regulation, guideline or order), such as,
for example, but not limited to, a change in official reserve requirements
(including any reserve requirements specified under regulations issued from
time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities" as
therein defined), and/or (y) other circumstances affecting the London
interbank market; or
(iii) at any time, that the making or continuance of any LIBOR Loan
has become unlawful by compliance by such Lender in good faith with any
law,
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governmental rule, regulation, guideline or order (or would conflict with
any such governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be
unlawful), or has become impracticable as a result of a contingency
occurring after the date hereof that materially and adversely affects the
London interbank market;
then, and in any such event, such Lender shall within a reasonable time
thereafter give notice (if by telephone confirmed in writing) to each Borrower
and to the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other Lenders).
Thereafter (x) in the case of clause (i) above, LIBOR Loans shall no longer be
available from such Lender (and such Lender's obligation to make such Revolving
Credit Loans shall be suspended) until such time as such Lender notifies the
Administrative Agent, each Borrower and the Lenders that the circumstances
giving rise to such notice by the Administrative Agent no longer exist (which
notice such Lender agrees to give at such time when such circumstances no longer
exist), and any Notice of Borrowing or Notice of Continuation given by a
Borrower with respect to LIBOR Loans that have not yet been incurred shall be
deemed, with respect to such Lender only, to be a Notice of Borrowing or Notice
of Continuation for ABR Loans, (y) in the case of clause (ii) above, the
relevant Borrower shall pay to such Lender, promptly after receipt of written
demand therefor, such additional amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such Lender in
its reasonable discretion shall determine) as shall be required to compensate
such Lender for such increased costs or reductions in amounts receivable
hereunder (it being agreed that a written notice as to the additional amounts
owed to such Lender, showing in reasonable detail the basis for the calculation
thereof, submitted to such Borrower by such Lender shall, absent clearly
demonstrable error, be final and conclusive and binding upon all parties hereto)
other than any such increase or reduction attributable to taxes and (z) in the
case of clause (iii) above, each Borrower shall take one of the actions
specified in Section 2.10(b) as promptly as possible and, in any event, within
the time period required by law.
(b) At any time that any LIBOR Loan is affected by the circumstances
described in Section 2.10(a)(ii) or 2.10(a)(iii), the relevant Borrower may (and
in the case of a LIBOR Loan affected pursuant to Section 2.10(a)(iii) shall)
either (i) if the affected LIBOR Loan is then being made pursuant to a Credit
Event or Borrowing by way of conversion into a LIBOR Loan, cancel said Credit
Event or Borrowing by giving the Administrative Agent telephonic notice
(confirmed promptly in writing) thereof on the same date that such Borrower was
notified by a Lender pursuant to Section 2.10(a)(ii) or 2.10(a)(iii), or (ii) if
the affected LIBOR Loan is then outstanding, upon at least three Business Days
notice to the Administrative Agent, require the affected Lender to convert each
such LIBOR Loan into an ABR Loan; provided that if more than one Lender is
affected at any time, then all affected Lenders must be treated in the same
manner pursuant to this Section 2.10(b).
(c) If, after the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any Governmental Authority, or
compliance by a Lender or its parent with any request or directive made or
adopted after the date hereof regarding capital adequacy (whether or not having
the force of law) of any such Governmental Authority, has or would have the
effect of reducing the rate of return on such Lender's or its parent's capital
or assets as a
22
consequence of such Lender's commitments or obligations hereunder to a level
below that which such Lender or its parent could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration such
Lender's or its parent's policies with respect to capital adequacy), then from
time to time, promptly after demand by such Lender (with a copy to the
Administrative Agent), each Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or its parent for such
reduction, it being understood and agreed, however, that a Lender shall not be
entitled to such compensation as a result of such Lender's compliance with, or
pursuant to any request or directive to comply with, any such law, rule or
regulation as in effect on the date hereof. Each Lender, upon determining in
good faith that any additional amounts will be payable pursuant to this Section
2.10(c), will give prompt written notice thereof to the Borrowers, which notice
shall set forth in reasonable detail the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not,
subject to Section 2.13, release or diminish either Borrower's obligations to
pay additional amounts pursuant to this Section 2.10(c) upon receipt of such
notice.
2.11 COMPENSATION.
If (a) any payment of principal of any LIBOR Loan, or any continuation of
any LIBOR Loan, is made by a Borrower (or a replacement Lender in the case of
Section 12.7) to or for the account of a Lender other than on the last day of
the LIBOR Period pursuant to Section 2.5, 2.6, 2.10, 5.1 or 12.7, as a result of
acceleration of the maturity of the Revolving Credit Loans pursuant to Article
10 or for any other reason, (b) any Borrowing by a Borrower of LIBOR Loans is
not made as a result of a withdrawn Notice of Borrowing, (c) any ABR Loan of a
Borrower is not converted into a LIBOR Loan as a result of a withdrawn Notice of
Continuation, (d) any LIBOR Loan of a Borrower is not continued as a LIBOR Loan
as a result of a withdrawn Notice of Continuation or (e) any prepayment of
principal of any LIBOR Loan of a Borrower is not made as a result of a withdrawn
notice of prepayment pursuant to Section 5.1, such Borrower shall, after receipt
of a written request by such Lender (which request shall set forth in reasonable
detail the basis for requesting such amount), pay to the Administrative Agent
for the account of such Lender any amounts required to compensate such Lender
for any additional losses, costs or expenses that such Lender may reasonably
incur as a result of such payment, failure to convert, failure to continue or
failure to prepay, including any loss, cost or expense (excluding loss of
anticipated profits) actually incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such LIBOR Loan.
2.12 CHANGE OF LENDING OFFICE.
Each Lender agrees that, upon the occurrence of any event giving rise to
the operation of Section 2.10(a)(ii), 2.10(a)(iii), 2.10(b) or 5.3 with respect
to such Lender, it will, if requested by the Borrowers, use reasonable efforts
(subject to overall policy considerations of such Lender) to designate another
lending office for any Revolving Credit Loans affected by such event; provided
that such designation is made on such terms that such Lender and its lending
office suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of any such
Section. Nothing in this Section 2.12 shall affect or postpone any of the
obligations of the Borrowers or the right of any Lender provided in Section 2.10
or 5.3.
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2.13 NOTICE OF CERTAIN COSTS.
Notwithstanding anything in this Agreement to the contrary, to the extent
any notice required by Section 2.10, 2.11, 3.5 or 5.3 is given by any Lender
more than 180 days after such Lender has knowledge (or should have had
knowledge) of the occurrence of the event giving rise to the additional cost,
reduction in amounts, loss, tax or other additional amounts described in such
Sections, such Lender shall not be entitled to compensation under Section 2.10,
2.11, 3.5 or 5.3, as the case may be, for any such amounts incurred or accruing
prior to the giving of such notice.
2.14 EXTENSION OF COMMITMENT TERMINATION DATE.
(a) REQUESTS FOR EXTENSION. The Borrowers may, by joint notice to the
Administrative Agent (who shall promptly notify the Lenders) not earlier than 60
days and not later than 35 days prior to any anniversary of the Closing Date,
commencing with the first anniversary thereof (any such anniversary date, as
applicable, the "EXTENSION DATE"), request that each Lender extend the Revolving
Credit Maturity Date then in effect hereunder (the "EXISTING REVOLVING CREDIT
MATURITY DATE") for an additional year from the Existing Revolving Credit
Maturity Date; provided that the Borrowers shall not make more than two such
requests hereunder.
(b) LENDER ELECTIONS TO EXTEND. Each Lender, acting in its sole and
individual discretion, shall, by notice to the Administrative Agent given not
earlier than 30 days prior to the Extension Date and not later than the date
(the "NOTICE DATE") that is 20 days prior to the Extension Date, advise the
Administrative Agent whether or not such Lender agrees to such extension (and
each Lender that determines not to so extend its Revolving Credit Maturity Date
(a "NON-EXTENDING LENDER") shall notify the Administrative Agent of such fact
promptly after such determination (but in any event no later than the Notice
Date)) and any Lender that does not so advise the Administrative Agent on or
before the Notice Date shall be deemed to be a Non-Extending Lender. The
election of any Lender to agree to such extension shall not obligate any other
Lender to so agree. The Revolving Credit Commitments of a Non-Extending Lender
shall terminate on the Existing Revolving Credit Maturity Date, and on such date
(i) the loans made by such Non-Extending Lender shall mature and be due and
payable by each Borrower, and (ii) all other amounts owing to such Non-Extending
Lender hereunder shall be due and payable.
(c) NOTIFICATION BY ADMINISTRATIVE AGENT. The Administrative Agent shall
notify each Borrower of each Lender's determination under this Section no later
than the date 15 days prior to the Extension Date (or, if such date is not a
Business Day, on the next preceding Business Day).
(d) ADDITIONAL COMMITMENT LENDERS. The Borrowers shall have the right on or
before the Existing Revolving Credit Maturity Date to replace each Non-Extending
Lender with, and add as "Lenders" under this Agreement in place thereof, one or
more Persons (each, an "ADDITIONAL COMMITMENT LENDER"; each Additional
Commitment Lender, together with any Lender that extends its Commitment, being
collectively called the "CONTINUING LENDERS") with the approval of the
Administrative Agent and the Letter of Credit Issuer (which approvals shall
24
not be unreasonably withheld), each of which Additional Commitment Lenders shall
have entered into an agreement in form and substance satisfactory to each
Borrower and the Administrative Agent pursuant to which such Additional
Commitment Lender shall undertake a Revolving Credit Commitment (and, if any
such Additional Commitment Lender is already a Lender, its Revolving Credit
Commitment shall be in addition to such Lender's Revolving Credit Commitment
hereunder on such date).
(e) MINIMUM EXTENSION REQUIREMENT. If (and only if) the total of the
Revolving Credit Commitments of the Lenders (including any Additional Commitment
Lenders) that have agreed so to extend the Revolving Credit Maturity Date shall
be more than 50% of the aggregate amount of the Revolving Credit Commitments in
effect on the Notice Date, then, effective as of the Extension Date, the
Revolving Credit Maturity Date of each Continuing Lender shall be extended to
the date falling one year after the Existing Revolving Credit Maturity Date
(except that, if such date is not a Business Day, such Revolving Credit Maturity
Date as so extended shall be the next preceding Business Day) and each
Additional Commitment Lender shall thereupon become (and each Non-Extending
Lender that has been replaced as provided above shall cease to be) a "Lender"
for all purposes of this Agreement.
(f) CONDITIONS TO EFFECTIVENESS OF EXTENSIONS. Notwithstanding the
foregoing, the extension of the Revolving Credit Maturity Date pursuant to this
Section shall not be effective with respect to any Lender unless the
Administrative Agent shall have received a certificate of an Authorized Officer
of the Borrower certifying that:
(i) no Default or Event of Default relating to either Borrower or any
of its Subsidiaries shall have occurred and be continuing on the date of
such extension and after giving effect thereto; and
(ii) the representations and warranties made by each Borrower
contained in this Agreement are true and correct on and as of the date of
such extension and after giving effect thereto, as though made on and as of
such date (or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific date).
ARTICLE 3
LETTERS OF CREDIT.
3.1 GENERALLY.
(a) Subject to and upon the terms and conditions herein set forth, each
Borrower, at any time and from time to time on or after the Closing Date and
prior to the L/C Maturity Date, may request that the Letter of Credit Issuer
issue, for the account of such Borrower, a standby letter of credit or letters
of credit (in such form as may be approved by the Letter of Credit Issuer in its
reasonable discretion) which is participated by the Letter of Credit Issuer
pursuant to Section 3.3 (each such letter of credit, a "LETTER OF CREDIT").
(b) Notwithstanding the foregoing, (w) no Letter of Credit shall be issued
the Stated Amount of which, when added to the sum of (A) the Letter of Credit
Exposure of all of the Lenders at such time and (B) the aggregate principal of
all Revolving Credit Loans then
25
outstanding would exceed (a) in the case of ITC, the ITC Availability Limit, (b)
in the case of METC, the METC Availability Amount and (c) the Total Revolving
Credit Commitment then in effect; (x) each Letter of Credit shall have an expiry
date occurring no later than one year after the date of issuance thereof;
provided that in no event shall such expiry date occur later than the L/C
Maturity Date; (y) each Letter of Credit shall be denominated in Dollars and
shall provide for drawings thereunder to be made in Dollars; and (z) no Letter
of Credit shall be issued by the Letter of Credit Issuer for the account of
either Borrower after it has received a written notice from such Borrower or any
Lender stating that a Default or Event of Default relating to such Borrower has
occurred and is continuing until such time as the Letter of Credit Issuer shall
have received a written notice of (A) rescission of such notice from the party
or parties originally delivering such notice (provided that in the case of any
such notice delivered by a Borrower, the Administrative Agent has not objected
to or contested such rescission) or (B) the waiver of such Default or Event of
Default in accordance with the provisions of Section 12.1.
3.2 LETTER OF CREDIT REQUESTS AND INFORMATION TO ADMINISTRATIVE AGENT.
(a) Whenever a Borrower desires that a Letter of Credit be issued for its
account, it shall give the Administrative Agent and the Letter of Credit Issuer
at least three (or such lesser number as may be agreed upon by the
Administrative Agent and the Letter of Credit Issuer) Business Days' written
notice thereof. Each notice shall be executed by a Borrower and shall be in the
form of Exhibit G (each a "LETTER OF CREDIT REQUEST"). The Administrative Agent
shall promptly transmit copies of each Letter of Credit Request to each Lender.
(b) The making of each Letter of Credit Request shall be deemed to be a
representation and warranty by the relevant Borrower that the Letter of Credit
may be issued in accordance with, and will not violate the requirements of,
Section 3.1(b).
(c) The Letter of Credit Issuer shall, as soon as practicable following the
issuance, cancellation or termination of any Letter of Credit, provide a copy of
such Letter of Credit, cancellation or termination to the Administrative Agent.
3.3 LETTER OF CREDIT PARTICIPATIONS.
(a) Immediately upon the issuance by the Letter of Credit Issuer of any
Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold and
transferred to each other Lender that has a Revolving Credit Commitment (each
such other Lender, in its capacity under this Section 3.3, an "L/C
PARTICIPANT"), and each such L/C Participant shall be deemed irrevocably and
unconditionally to have purchased and received from the Letter of Credit Issuer,
without recourse or warranty, an undivided interest and participation (each an
"L/C PARTICIPATION"), to the extent of such L/C Participant's Revolving Credit
Commitment Percentage from time to time, in such Letter of Credit, each
substitute letter of credit, each drawing made thereunder and the obligations of
the relevant Borrower under this Agreement with respect thereto, and any
security therefor or guaranty pertaining thereto (although the Letter of Credit
Fee will be paid directly to the Administrative Agent for the ratable account of
the L/C Participants as provided in Section 4.1(b) and the L/C Participants
shall have no right to receive any portion of any Fronting Fees).
26
(b) In determining whether to pay under any Letter of Credit, the Letter of
Credit Issuer shall have no obligation relative to the L/C Participants other
than to confirm that any documents required to be delivered under such Letter of
Credit have been delivered and that they appear to comply on their face with the
requirements of such Letter of Credit. Any action taken or omitted to be taken
by the Letter of Credit Issuer under or in connection with any Letter of Credit
issued by it, unless taken or omitted through its gross negligence or willful
misconduct as determined by a final judgment of a court of competent
jurisdiction, shall not create for the Letter of Credit Issuer any resulting
liability.
(c) In the event that the Letter of Credit Issuer makes any payment under
any Letter of Credit issued by it and the relevant Borrower shall not have
repaid the amount in full to the Letter of Credit Issuer pursuant to Section
3.4(a), the Letter of Credit Issuer shall promptly notify the Administrative
Agent (who shall in turn promptly notify each L/C Participant) of the failure,
and each L/C Participant shall promptly and unconditionally pay to the
Administrative Agent, for the account of the Letter of Credit Issuer, the amount
of the L/C Participant's Revolving Credit Commitment Percentage (determined as
of the date of the notice referred to above) of the unreimbursed payment in
Dollars and in same day funds. If the Letter of Credit Issuer so notifies, prior
to 11:00 a.m. (New York time) on any Business Day, any L/C Participant required
to fund a payment under a Letter of Credit, the L/C Participant shall make
available to the Administrative Agent for the account of the Letter of Credit
Issuer the L/C Participant's Revolving Credit Commitment Percentage of the
amount of the payment on the Business Day in same day funds. If and to the
extent the L/C Participant shall not have so made its Revolving Credit
Commitment Percentage of the amount of the payment available to the
Administrative Agent for the account of the Letter of Credit Issuer, the L/C
Participant agrees to pay to the Administrative Agent for the account of the
Letter of Credit Issuer, forthwith on demand, the amount, together with interest
thereon for each day from the date until the date the amount is paid to the
Administrative Agent for the account of the Letter of Credit Issuer at the
Federal Funds Effective Rate. The failure of any L/C Participant to make
available to the Administrative Agent for the account of a Letter of Credit
Issuer the L/C Participant's Revolving Credit Commitment Percentage of any
payment under any Letter of Credit shall not relieve any other L/C Participant
of its obligation hereunder to make available to the Administrative Agent for
the account of the Letter of Credit Issuer the other L/C Participant's Revolving
Credit Commitment Percentage of any payment under the Letter of Credit on the
date required, as specified above, but no L/C Participant shall be responsible
for the failure of any other L/C Participant to make available to the
Administrative Agent the other L/C Participant's Revolving Credit Commitment
Percentage of the payment. Notwithstanding the foregoing, the Administrative
Agent shall be entitled to adjust the proportions of any of the foregoing
amounts required to be paid by the L/C Participants to ensure that no L/C
Participant's Revolving Credit Exposure exceeds its Revolving Credit Commitment.
(d) Whenever the Letter of Credit Issuer receives a payment in respect of
an unpaid reimbursement obligation as to which the Administrative Agent has
received for the account of the Letter of Credit Issuer any payments from the
L/C Participants pursuant to paragraph (c) above, the Letter of Credit Issuer
shall pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each L/C Participant that has paid its applicable portion of
such reimbursement obligation, in Dollars and in same day funds, an amount equal
to such L/C Participant's share (based upon the proportionate aggregate amount
originally funded by such
27
L/C Participant to the aggregate amount funded by all L/C Participants) of the
principal amount of such reimbursement obligation and interest thereon accruing
after the purchase of the respective L/C Participations.
(e) The obligations of the L/C Participants to make payments to the
Administrative Agent for the account of the Letter of Credit Issuer with respect
to Letters of Credit issued by it shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement;
(ii) the existence of any claim, set-off, defense or other right that
the relevant Borrower may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit (or any Person for
whom any such transferee may be acting), the Administrative Agent, the
Letter of Credit Issuer, any Lender or other Person, whether in connection
with this Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying transaction
between the relevant Borrower and the beneficiary named in any such Letter
of Credit);
(iii) any draft, certificate or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of this Agreement; or
(v) the occurrence of any Default or Event of Default;
provided that no L/C Participant shall be obligated to pay to the
Administrative Agent for the account of the Letter of Credit Issuer such
L/C Participant's Revolving Credit Commitment Percentage of any
unreimbursed amount arising from any wrongful payment made by the Letter of
Credit Issuer under a Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of the
Letter of Credit Issuer as determined by a final judgment of a court of
competent jurisdiction.
3.4 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS.
(a) The Borrower for whose account any Letter of Credit is issued hereby
agrees to reimburse the Letter of Credit Issuer, by making payment to the
Administrative Agent in Dollars in immediately available funds at the office of
the Administrative Agent from time to time notified by the Administrative Agent
to the Borrower (but initially the office set forth for the Administrative Agent
in Section 12.2(a)(ii)), for any payment or disbursement made by the Letter of
Credit Issuer under such Letter of Credit (each such amount so paid until
reimbursed, an "UNPAID DRAWING") immediately after, and in any event on the date
of, such payment, with interest on the amount so paid or disbursed by the Letter
of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York
time) on the date of such payment or disbursement,
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from and including the date paid or disbursed to but excluding the date the
Letter of Credit Issuer is reimbursed therefor, at a rate per annum that shall
at all times be 2% above the Applicable Margin for Revolving Credit Loans plus
the ABR as in effect from time to time.
(b) Each Borrower's obligations under this Section 3.4 to reimburse the
Letter of Credit Issuer with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that such Borrower or any other Person may have or have had against the Letter
of Credit Issuer, the Administrative Agent or any Lender (including in its
capacity as an L/C Participant), including any defense based upon the failure of
any drawing under a Letter of Credit (each a "DRAWING") to conform to the terms
of the Letter of Credit, any nonapplication or misapplication by the beneficiary
of the proceeds of such Drawing or any of the circumstances described in
Sections 3.3(e)(i) to 3.3(e)(v), inclusive; provided that a Borrower shall not
be obligated to reimburse the Letter of Credit Issuer for any wrongful payment
made by the Letter of Credit Issuer under the Letter of Credit issued by it as a
result of acts or omissions constituting willful misconduct or gross negligence
on the part of the Letter of Credit Issuer as determined by a final judgment of
a court of competent jurisdiction.
(c) Each payment by the Letter of Credit Issuer under any Letter of Credit
shall constitute a request by the relevant Borrower for a Revolving Credit Loan,
subject to Section 7.2, in the amount of the Unpaid Drawing in respect of such
Letter of Credit. The Letter of Credit Issuer shall notify the relevant Borrower
and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day
on which the Letter of Credit Issuer intends to honor a drawing under a Letter
of Credit, of (i) the Letter of Credit Issuer's intention to honor such drawing
and (ii) the amount of such drawing. Unless instructed by the relevant Borrower
by 10:30 a.m. (New York time) on such Business Day that it intends to reimburse
the Letter of Credit Issuer for the amount of such drawing with funds other than
the proceeds of Loans, the Administrative Agent shall promptly notify each
Lender of such drawing and the amount of its Revolving Credit Loan to be made in
respect thereof, and each Lender shall be irrevocably obligated to make ABR
Loans to such Borrower in the amount of such Lender's Revolving Credit
Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York
time) on such Business Day by making the amount of such Revolving Credit Loan
available to the Administrative Agent at the office of the Administrative Agent
from time to time notified by the Administrative Agent to the Borrower (but
initially the office set forth for the Administrative Agent in Section
12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the
Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of
such Revolving Credit Loans solely for the purpose of reimbursing the Letter of
Credit Issuer for the related Unpaid Drawing.
3.5 INCREASED COSTS.
If after the date hereof, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or actual
compliance by the Letter of Credit Issuer or any L/C Participant with any
request or directive made or adopted after the date hereof (whether or not
having the force of law), by any such authority, central bank or comparable
agency shall either (a) impose,
29
modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against letters of credit issued by the Letter of Credit Issuer, or
any L/C Participant's L/C Participation therein, or (b) impose on the Letter of
Credit Issuer or any L/C Participant any other conditions affecting its
obligations under this Agreement in respect of Letters of Credit or L/C
Participations therein or any Letter of Credit or such L/C Participant's L/C
Participation therein; and the result of any of the foregoing is to increase the
cost to the Letter of Credit Issuer or such L/C Participant of issuing,
maintaining or participating in such Letter of Credit, or to reduce the amount
of any sum received or receivable by the Letter of Credit Issuer or such L/C
Participant hereunder (other than any such increase or reduction attributable to
taxes) in respect of Letters of Credit or any L/C Participations therein, then,
promptly after receipt of written demand to the relevant Borrower by the Letter
of Credit Issuer or such L/C Participant, as the case may be (a copy of which
notice shall be sent by the Letter of Credit Issuer or such L/C Participant to
the Administrative Agent), such Borrower shall pay to the Letter of Credit
Issuer or such L/C Participant such additional amount or amounts as will
compensate the Letter of Credit Issuer or such L/C Participant for such
increased cost or reduction, it being understood and agreed, however, that
neither the Letter of Credit Issuer nor any L/C Participant shall be entitled to
such compensation as a result of such Person's compliance with, or pursuant to
any request or directive to comply with, any such law, rule or regulation as in
effect on the date hereof. A certificate submitted to the relevant Borrower by
the Letter of Credit Issuer or any L/C Participant, as the case may be (a copy
of which certificate shall be sent by the Letter of Credit Issuer or such L/C
Participant to the Administrative Agent), setting forth in reasonable detail the
basis for the determination of such additional amount or amounts necessary to
compensate the Letter of Credit Issuer or such L/C Participant as aforesaid
shall be conclusive and binding on such Borrower absent clearly demonstrable
error.
3.6 SUCCESSOR LETTER OF CREDIT ISSUER.
The Letter of Credit Issuer may resign as the Letter of Credit Issuer upon
60 days' prior written notice to the Administrative Agent, the Lenders and each
Borrower. If the Letter of Credit Issuer shall resign as the Letter of Credit
Issuer under this Agreement, then the Borrowers shall appoint from among the
Lenders with Revolving Credit Commitments a successor issuer of Letters of
Credit, whereupon such successor issuer shall succeed to the rights, powers and
duties of the Letter of Credit Issuer, and the term "Letter of Credit Issuer"
shall mean such successor issuer effective upon such appointment. At the time
such resignation shall become effective, the Borrowers shall pay to the
resigning Letter of Credit Issuer all accrued and unpaid fees pursuant to
Sections 4.1(c) and 4.1(d). The acceptance of any appointment as the Letter of
Credit Issuer hereunder by a successor Lender shall be evidenced by an agreement
entered into by such successor, in a form satisfactory to the Borrowers and the
Administrative Agent and, from and after the effective date of such agreement,
such successor Lender shall have all the rights and obligations of the previous
Letter of Credit Issuer under this Agreement. After the resignation of the
Letter of Credit Issuer hereunder, the resigning Letter of Credit Issuer shall
remain a party hereto and shall continue to have all the rights and obligations
of the Letter of Credit Issuer under this Agreement with respect to Letters of
Credit issued by it prior to such resignation, but shall not be required to
issue additional Letters of Credit. After any retiring Letter of Credit Issuer's
resignation as Letter of Credit Issuer, the provisions of this Agreement
relating to the Letter of Credit Issuer shall inure to its benefit as to any
actions taken or omitted to be taken by it
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(a) while it was the Letter of Credit Issuer under this Agreement or (b) at any
time with respect to Letters of Credit issued by the Letter of Credit Issuer.
ARTICLE 4
FEES; COMMITMENTS
4.1 FEES.
(a) Each Borrower agrees to pay to the Administrative Agent, for the
account of each Lender (in each case pro rata according to the respective
Available Revolving Credit Commitments of all such Lenders under each
Availability Limit), a commitment fee for each day from and including the
Closing Date to but excluding the Revolving Credit Maturity Date on the average
daily closing balances of the unused amount of such Borrower's Availability
Limit; provided that, until such time as the conditions precedent to borrowing
under the Reserved METC Amount are satisfied (the "METC ADDITIONAL CONDITIONS
DATE"), the Reserved METC Amount will not be included as part of the unused
amount of the METC Availability Limit for the purposes of this calculation. Such
commitment fee shall be payable in arrears (i) on the last Business Day of each
of March, June, September and December (for the three-month period (or portion
thereof) ended on such day) and (ii) on the Revolving Credit Maturity Date (for
the period ended on such date for which no payment has been received pursuant to
clause (i) above), and shall be computed during such period at the Commitment
Fee Rate on the average daily closing balances of the unused amount of the
respective Borrower's Availability Limit. In addition, METC shall pay to the
Administrative Agent, for the account of each Lender (in each case pro rata
according to the respective Available Revolving Credit Commitments of such
Lenders in respect of the Reserved METC Amount), a ticking fee for each day from
and including the Closing Date to but excluding the METC Additional Conditions
Date on the Reserved METC Amount, such fee to be computed at the Ticking Fee
Rate and payable on the METC Additional Conditions Date. Notwithstanding the
foregoing, the Borrowers shall not be obligated to pay any amounts to any
Defaulting Lender pursuant to this Section 4.1.
(b) Each Borrower agrees to pay to the Administrative Agent, for the
account of the Lenders pro rata on the basis of their respective Letter of
Credit Exposure of such Borrower, a fee in respect of each Letter of Credit (the
"LETTER OF CREDIT FEE") issued at its request, for the period from and including
the date of issuance of such Letter of Credit to, but not including, the
termination date of such Letter of Credit computed during such period at a per
annum rate equal to the Applicable Margin then in effect for such Borrower for
Revolving Credit Loans that are LIBOR Loans on the average daily Stated Amount
of such Letter of Credit. Such Letter of Credit Fees shall be due and payable
quarterly in arrears on the last Business Day of each of March, June, September
and December and on the date upon which the Total Revolving Credit Commitment
terminates and the Letters of Credit Outstanding shall have been reduced to
zero. In addition, for each day (a) on or prior to the Revolving Credit Maturity
Date on which the Revolving Credit Exposure exceeds 50% of the Revolving Credit
Commitments hereunder or (b) after the Revolving Credit Maturity Date on which
the Revolving Credit Exposure exceeds 50% of the Revolving Credit Commitments as
in effect immediately prior to the termination or reduction to zero of the
Revolving Credit Commitments, each Borrower shall pay to the
31
Administrative Agent for the account of each Lender an additional fee on the
Stated Amount of each Letter of Credit outstanding made by such Lender to such
Borrower that are outstanding on such day at a rate per annum equal to the
Applicable Additional Interest Rate for such Borrower. Accrued additional fees
will be payable in respect of the Stated Amount of each Letter of Credit
outstanding on each date on which the Letter of Credit Fee is payable at the
times specified in the preceding sentence of this clause (b).
(c) Each Borrower agrees to pay directly to the Letter of Credit Issuer a
fee in respect of each Letter of Credit issued by it (the "FRONTING FEE") at the
request of such Borrower, for the period from and including the date of issuance
of such Letter of Credit to but not including the termination date of such
Letter of Credit, computed during such period at a per annum rate equal to
0.125% on the average daily Stated Amount of such Letter of Credit. Such
Fronting Fees shall be due and payable quarterly in arrears on the last Business
Day of each of March, June, September and December and on the date upon which
the Total Revolving Credit Commitment terminates and the Letters of Credit
Outstanding shall have been reduced to zero.
(d) Each Borrower agrees to pay directly to the Letter of Credit Issuer
upon each renewal of, drawing under and/or amendment of a Letter of Credit
issued by it at the request of such Borrower, such amount as the Letter of
Credit Issuer and such Borrower may agree upon for issuances or renewal or
drawings under or amendments of letters of credit issued by it.
(e) The Borrowers agree to pay to the Administrative Agent, for the benefit
of the Administrative Agent, the fees for acting as administrative agent in the
amounts and on the dates previously agreed to in writing by the Borrowers and
the Administrative Agent, as amended from time to time by agreement between the
Administrative Agent and the Borrowers.
(f) The Borrowers agree to pay on the Closing Date to the Arranger, for the
benefit of the Lenders, the fees in the amounts previously agreed to in writing
by the Borrowers and the Arranger and referred to in the term sheet for the
financing contemplated hereby.
4.2 VOLUNTARY REDUCTION OF REVOLVING CREDIT COMMITMENTS.
Upon at least two Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) to the Administrative Agent (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), either
Borrower shall have the right, without premium or penalty, on any day, to
permanently terminate or reduce the Revolving Credit Commitments under its
Availability Limit in whole or in part; provided that (i) any such reduction
shall apply proportionately and permanently to reduce the Revolving Credit
Commitment of each of the Lenders under such Availability Limit, (ii) any
partial reduction pursuant to this Section 4.2 shall be in the amount of at
least $1,000,000, and (iii) after giving effect to any such partial reduction,
the Total Revolving Credit Commitment shall be at least $5,000,000.
4.3 COMMITMENT INCREASES.
(a) In the event that the Borrowers wish to increase the Total Revolving
Credit Commitment, they shall jointly notify the Administrative Agent in writing
of the amount (the "OFFERED INCREASE AMOUNT") of such proposed increase and,
subject to Section 4.3(g), the
32
amount by which each of the ITC Availability Limit and the METC Availability
will be increased following such proposed increase (such notice, a "COMMITMENT
INCREASE NOTICE").
(b) The Borrowers may, at their election, (i) offer one or more of the
Lenders the opportunity to participate in all or a portion of the Offered
Increase Amount pursuant to paragraph (d) below and/or (ii) with the consent of
the Administrative Agent (which consent shall not be unreasonably withheld),
offer one or more additional banks, financial institutions or other entities the
opportunity to participate in all or a portion of the Offered Increase Amount
pursuant to paragraph (c) below. Each Commitment Increase Notice shall specify
which Lenders and/or banks, financial institutions or other entities the
Borrowers desire to participate in such Commitment Increase. The Borrowers or,
if requested by the Borrowers, the Administrative Agent, will notify such
Lenders and/or banks, financial institutions or other entities of such offer.
(c) Any additional bank, financial institution or other entity which the
Borrowers select to offer participation in the increased Commitments and which
elects to become a party to the Agreement and provide a Commitment in an amount
so offered and accepted by it pursuant to Section 4.3(a)(ii) shall execute a New
Lender Supplement (each a "NEW LENDER SUPPLEMENT") with the Borrowers and the
Administrative Agent, substantially in the form of Exhibit D, whereupon such
bank, financial institution or other entity (herein called a "NEW LENDER") shall
become a Lender for all purposes and to the same extent as if originally a party
hereto and shall be bound by and entitled to the benefits of this Agreement, and
Schedule I shall be deemed to be amended to add the name and Commitment of such
New Lender.
(d) Any Lender which accepts an offer to it by the Borrowers to increase
its Commitment pursuant to Section 4.3(b)(i) shall, in each case, execute a
Commitment Increase Supplement (each a "COMMITMENT INCREASE SUPPLEMENT") with
the Borrowers and the Administrative Agent, substantially in the form of Exhibit
E, whereupon such Lender shall be bound by and entitled to the benefits of this
Agreement with respect to the full amount of its Commitment as so increased, and
Schedule I shall be deemed to be amended to increase the Commitment of such
Lender.
(e) If on the date upon which a bank, financial institution or other entity
becomes a New Lender pursuant to Section 4.3(c) or a Lender increases its
Commitment pursuant to Section 4.3(d), there is an unpaid principal amount of
Revolving Credit Loans, the relevant Borrower shall borrow Revolving Credit
Loans from the Lenders and/or (subject to compliance by the Borrower with
Section 2.11) prepay Revolving Credit Loans of the Lenders such that, after
giving effect thereto, the Revolving Credit Loans (including, without
limitation, the Types thereof and LIBOR Periods with respect thereto) shall be
held by the Lenders (including for such purposes the New Lenders) pro rata
according to their respective Revolving Credit Commitment Percentages.
(f) If on the date upon which a bank, financial institution or other entity
becomes a New Lender pursuant to Section 4.3(c) or a Lender increases its
Commitment pursuant to Section 4.3(d), there are Letters of Credit Outstanding,
each Lender that has a Revolving Credit Commitment shall be deemed to have sold
and transferred to each other Lender that has a Revolving Credit Commitment, and
each such Lender that has a Revolving Credit Commitment shall be deemed
irrevocably and unconditionally to have purchased and received from such other
33
Lender that has a Revolving Credit Commitment, without recourse or warranty, an
L/C Participation, to the extent of such Lender's Revolving Credit Commitment
Percentage, in such Letters of Credit Outstanding, provided that no LC
Participations shall be sold, transferred, purchased and received in respect of
any Unpaid Drawing existing at the time an entity becomes a New Lender pursuant
to Section 4.3(c) or a Lender increases its Commitment pursuant to Section
4.3(d).
(g) Notwithstanding anything to the contrary in this Section 4.3, prior to
each New Lender Supplement and Commitment Increase Supplement becoming
effective, and as a condition precedent to such effectiveness, the Borrowers
shall furnish to the Administrative Agent such evidence of legal and corporate
authority (including legal opinions of counsel to the Borrowers) as the
Administrative Agent may request in connection with such New Lender Supplement
or Commitment Increase Supplement, as the case may be. Notwithstanding anything
to the contrary in this Section 4.3, in no event shall any transaction effected
pursuant to this subsection cause (A) the ITC Availability Limit or the METC
Availability Limit to be increased by greater than $25,000,000 and (B) the Total
Revolving Credit Commitment to exceed $190,000,000 or to increase in an amount
of less than $500,000 or a multiple of $100,000 in excess thereof.
(h) Notwithstanding the foregoing, the increase of the Revolving Credit
Commitments with respect to either Borrower pursuant to this Section shall not
be effective unless the Administrative Agent shall have received a certificate
of an Authorized Officer of such Borrower certifying that:
(i) no Default or Event of Default with respect to such Borrower shall
have occurred and be continuing on the date of such increase and after
giving effect thereto; and
(ii) the representations and warranties made by such Borrower
contained in this Agreement are true and correct on and as of the date of
such increase and after giving effect thereto, as though made on and as of
such date (or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific date).
4.4 MANDATORY TERMINATION OF COMMITMENTS.
The Total Revolving Credit Commitment shall terminate at 5:00 p.m. (New
York time) on the Revolving Credit Maturity Date.
ARTICLE 5
PAYMENTS
5.1 PREPAYMENTS.
Each Borrower shall have the right to prepay any Borrowing owing by such
Borrower, without premium or penalty, in whole or in part at any time and from
time to time. Such prepayment of Revolving Credit Loans shall be subject to the
following conditions: (a) the
34
relevant Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of its intent to make such
prepayment, the amount of such prepayment and (in the case of LIBOR Loans) the
specific Borrowing(s) to be prepaid, which notice shall be given by such
Borrower no later than 10:00 a.m. (New York time) three Business Days prior to
the date of such prepayment and shall promptly be transmitted by the
Administrative Agent to each of the Lenders; (b) each partial prepayment shall
be in an amount that is a multiple of $100,000 and in an aggregate principal
amount of at least $5,000,000; provided that no partial prepayment of LIBOR
Loans made pursuant to a single Borrowing shall reduce the outstanding LIBOR
Loans made pursuant to such Borrowing to an amount less than the Minimum
Borrowing Amount for LIBOR Loans; and (c) any prepayment of LIBOR Loans pursuant
to this Section 5.1 on any day other than the last day of a LIBOR Period
applicable thereto shall be subject to compliance by such Borrower with the
applicable provisions of Section 2.11; provided, further, that at such
Borrower's election in connection with any prepayment pursuant to this Section
5.1, such prepayment shall not be applied to any Revolving Credit Loan of a
Defaulting Lender. Each prepayment of a Borrowing shall be applied ratably to
the Revolving Credit Loans included in the prepaid Borrowing.
5.2 METHOD AND PLACE OF PAYMENT.
(a) Except as otherwise specifically provided herein, all payments to be
made by a Borrower under this Agreement shall be made, without set-off,
counterclaim or deduction of any kind, to the Administrative Agent for, as the
case may be, the (i) ratable account of all the Lenders holding Revolving Credit
Loans or (ii) account of each Letter of Credit Issuer, not later than 12:00 Noon
(New York time) on the date when due. Such payments shall be made in immediately
available funds at the office of the Administrative Agent from time to time
notified by the Administrative Agent to the Borrower (but initially the office
set forth for the Administrative Agent in Section 12.2(a)(ii)), it being
understood that written or facsimile notice by a Borrower to the Administrative
Agent to make a payment from the funds in its account at an office of the
Administrative Agent shall constitute the making of such payment to the extent
of such funds held in such account. The Administrative Agent will thereafter
cause to be distributed on the same day (if payment was actually received by the
Administrative Agent prior to 2:00 p.m. (New York time) on such day, otherwise
the next Business Day) like funds relating to the payment of principal or
interest or Fees ratably to the Lenders entitled thereto. A payment shall be
deemed to have been made by the Administrative Agent on the date on which it is
required to be made under this Agreement if the Administrative Agent has, on or
before such date, taken steps to make such payment in accordance with the
regulations or operating procedures of the clearing or settlement system used by
the Administrative Agent in order to make such payment.
(b) Any payments under this Agreement that are made later than 2:00 p.m.
(New York time) shall be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder shall be stated to be
due on a day that is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
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5.3 NET PAYMENTS.
(a) (i) All payments made by a Borrower under this Agreement shall be made
free and clear of, and without deduction or withholding for or on account of,
any current or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding (i) net
income taxes and franchise taxes (imposed in lieu of net income taxes) imposed
on the Administrative Agent or any Lender and (ii) any taxes imposed on the
Administrative Agent or any Lender as a result of a current or former connection
between the Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement)
("TAXES") except to the extent that such deduction or withholding is required by
any applicable law, as modified by the administrative practice of any relevant
Governmental Authority then in effect. If any such Taxes are required to be
withheld from any amounts payable to the Administrative Agent or any Lender
hereunder, the relevant Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due
the full amount required to be deducted or withheld (including the
full amount of Taxes required to be deducted or withheld from any
additional amount paid by such Borrower to the Administrative Agent or
such Lender under this Section 5.3(a);
(C) as promptly as possible thereafter, forward to the
Administrative Agent and such Lender an official receipt (or a
certified copy), or other documentation reasonably acceptable to the
Administrative Agent and such Lender, evidencing such payment to such
Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition
to the payment to which the Administrative Agent or such Lender is
otherwise entitled under this Agreement, such additional amount as is
necessary to ensure that the net amount actually received by the
Administrative Agent or such Lender (free and clear of any such Taxes,
whether assessed against such Borrower, the Administrative Agent or
such Lender) will equal the full amount the Administrative Agent or
such Lender would have received had no such deduction or withholding
been required.
(ii) If a Borrower fails to pay to the relevant Governmental Authority
when due any Taxes that it was required to deduct or withhold under this
Section 5.3(a) in respect of any payment to or for the benefit of the
Administrative Agent or any Lender under this Agreement or fails to furnish
the Administrative Agent or such Lender, as applicable, with the
documentation referred to in Section 5.3(a) when required to do so, such
Borrower shall forthwith on demand fully indemnify the Administrative Agent
or
36
such Lender for any incremental taxes, interest, costs or penalties that
may become payable by the Administrative Agent or such Lender as a result
of such failure.
(iii) Each Borrower's obligations under this Section 5.3(a) shall
survive the termination of this Agreement and the payment of the Revolving
Credit Loans and all other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), a Borrower shall not be required to
indemnify or pay any additional amounts in respect of withholding tax applicable
to any amount payable under this Agreement pursuant to Section 5.3(a) above to
any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned,
participated or transferred to such Non-U.S. Lender at the request of such
Borrower or were assigned, participated or transferred to such Non-U.S. Lender
following the occurrence of and during the continuance of an Event of Default
pursuant to Section 10.1 or 10.5.
(c) Each Non-U.S. Lender shall:
(i) deliver to each Borrower and the Administrative Agent two copies
of either (x) in the case of a Non-U.S. Lender claiming exemption from U.S.
Federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest", United States Internal Revenue
Service Form W-8BEN, (together with a certificate representing that such
Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code,
is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B)
of the Code) of a Borrower and is not a controlled foreign corporation
related to such Borrower (within the meaning of Section 864(d)(4) of the
Code)), or (y) Internal Revenue Service Form W-8BEN or W-8ECI, in each case
properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or reduced rate of, U.S. Federal withholding tax
on payments by such Borrower under this Agreement;
(ii) deliver to each Borrower and the Administrative Agent two further
copies of any such form or certification (or any applicable successor form)
on or before the date that any such form or certification expires or
becomes obsolete and after the occurrence of any event requiring a change
in the most recent form previously delivered by it to such Borrower; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested in writing by the
Borrowers or the Administrative Agent;
unless, in any such case, any change in treaty, law or regulation, has occurred
prior to the date on which any such delivery would otherwise be required that
renders any such form inapplicable or would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender so
advises each Borrower and the Administrative Agent. Each Person that shall
become a Participant pursuant to Section 12.6 or a Lender pursuant to Section
12.6 shall, upon the effectiveness of the related transfer, be required to
provide all the forms and statements required pursuant to this Section 5.3(c),
provided that in the case of a Participant such Participant
37
shall furnish all such required forms and statements to the Lender from which
the related participation shall have been purchased.
(d) If the Borrowers determine in good faith that a reasonable basis exists
for contesting any taxes for which indemnification has been demanded hereunder,
the relevant Lender or the Administrative Agent, as applicable, shall cooperate
with the Borrowers in challenging such taxes at the Borrowers' expense if so
requested by the Borrowers. If any Lender or the Administrative Agent, as
applicable, receives a refund of, or credit for, a Tax for which a payment has
been made by a Borrower pursuant to this Agreement, which refund or credit in
the good faith judgment of such Lender or the Administrative Agent, as the case
may be, is attributable to such payment made by such Borrower, then the Lender
or the Administrative Agent, as the case may be, shall reimburse that Borrower
for such amount as the Lender or the Administrative Agent, as the case may be,
determines to be the proportion of the refund or credit as will leave it, after
such reimbursement, in no better or worse position than it would have been in if
the payment had not been required. A Lender or Administrative Agent shall claim
any refund or credit that it determines is available to it, unless it concludes
in its reasonable discretion that it would be adversely affected by making such
a claim. Neither such Lender nor the Administrative Agent shall be obliged to
disclose any information regarding its tax affairs or computations to the
Borrowers in connection with this paragraph (d) or any other provision of this
Section 5.3.
5.4 COMPUTATIONS OF INTEREST AND FEES.
(a) All interest and fees hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the ABR at times
when the ABR is based on the prime rate of the Administrative Agent shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable ABR or LIBOR rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
(b) All interest payments to be made under this Agreement shall be paid
without allowance or deduction for deemed re-investment or otherwise, both
before and after maturity and before and after default and/or judgment, if any,
until payment of the amount on which such interest is accruing, and interest
will accrue on overdue interest, if any.
(c) The amount of costs and expenses required to be paid or reimbursed by a
Borrower pursuant to Section 12.5 or any other provision of this Agreement shall
bear interest until paid, as well after as before demand, default, maturity and
judgment, at the highest rate provided for in Section 2.8(c).
(d) If interest is not paid on the indebtedness of a Borrower to the
Lenders hereunder, or any part thereof, as and when interest is due and payable
hereunder, unpaid interest shall bear interest until paid, as well after as
before demand, default, maturity and judgment, at the rates provided for in
Section 2.8(c).
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ARTICLE 6
CONDITIONS PRECEDENT
6.1 CONDITIONS PRECEDENT TO INITIAL CREDIT EVENT.
The initial Credit Event under this Agreement is subject to the
satisfaction of the following conditions precedent:
(a) CREDIT AGREEMENT. The Administrative Agent shall have received
this Agreement, executed and delivered by a duly authorized officer of each
of the parties hereto.
(b) CLOSING CERTIFICATE. The Administrative Agent shall have received
a certificate of each Borrower, dated the Closing Date, substantially in
the form of Exhibit C, with appropriate insertions, executed by the
President or any Vice President and the Secretary or any Assistant
Secretary of such Borrower.
(c) PROCEEDINGS OF THE BORROWERS. The Administrative Agent shall have
received copies of the resolutions, in form and substance satisfactory to
the Administrative Agent, of the Board of Directors of each Borrower (or a
duly authorized committee thereof) authorizing (a) the execution, delivery
and performance of this Agreement (and any agreements relating thereto) and
(b) the extensions of credit contemplated hereunder.
(d) ORGANIC DOCUMENTS. The Administrative Agent shall have received
true and complete copies of the articles of incorporation and by-laws or
Articles of Organization and operating agreement, as the case may be, of
each Borrower and a certificate of good standing with respect to each
Borrower issued by its jurisdiction of incorporation or organization.
(e) FEES. The Administrative Agent shall have received the fees
referred to in Section 3.1(c) to be received on the Closing Date.
(f) LEGAL OPINIONS. The Administrative Agent shall have received in
form and substance reasonably satisfactory to it the executed legal
opinions of (i) counsel to the Borrowers with respect to the status and
capacity of the Borrowers, the due authorization, execution and delivery of
this Agreement by the Borrowers, the validity, binding effect, legality and
enforceability of this Agreement, compliance with the Organic Documents of
the Borrowers and with applicable law and such other matters as the
Arranger may reasonably request in form and substance satisfactory to the
Arranger, (ii) special Michigan counsel to the Borrowers with respect to
the status and capacity of the Borrowers, the due authorization, execution
and delivery of this Agreement by the Borrowers, the validity, binding
effect, legality and enforceability of this Agreement, compliance with the
Organic Documents of the Borrowers and with applicable law and such other
matters as the Arranger may reasonably request in form and substance
satisfactory to the Arranger and (iii) counsel to METC with respect to the
Federal Power Act and the rules and regulations promulgated thereunder.
39
(g) OPINION OF SPECIAL NEW YORK COUNSEL TO THE ARRANGER. The
Administrative Agent shall have received an opinion, in form and substance
reasonable satisfactory to the Arranger of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, special New York counsel to the Arranger (and the Arranger hereby
instructs such counsel to deliver such opinion to the Lenders).
(h) REPAYMENT OF EXISTING INDEBTEDNESS. The Administrative Agent shall
have received evidence that the principal of and interest on, and all other
amounts owing in respect of, the Indebtedness (including any contingent or
other amounts payable in respect of letters of credit) outstanding under
the ITC Credit Agreement and the METC Credit Agreement, shall have been
repaid on the Closing Date, that any commitments to extend credit under the
agreements or instruments relating to such Indebtedness shall have been
canceled or terminated and all letters of credit issued and outstanding
thereunder shall have been terminated, replaced or continued under this
Agreement, as applicable.
6.2 CONDITIONS PRECEDENT TO ALL CREDIT EVENTS.
The agreement of each Lender to make any Revolving Credit Loan to either
Borrower requested to be made by it on any date (including its initial Revolving
Credit Loans) and the obligation of each Letter of Credit Issuer to issue,
extend or increase Letters of Credit for account of either Borrower on any date
is subject to the satisfaction of the following conditions precedent with
respect to such Borrower:
(a) NO DEFAULT; REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. At
the time of each Credit Event and also after giving effect thereto (i)
there shall exist no Default or Event of Default relating to such Borrower
or any of its Subsidiaries and (ii) all representations and warranties made
by such Borrower contained herein (other than, except in the case of the
initial Credit Event, Section 7.14) shall be true and correct in all
material respects with the same effect as though such representations and
warranties had been made on and as of the date of such Credit Event (except
where such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties shall have been
true and correct in all material respects as of such earlier date).
(b) NOTICE OF BORROWING; LETTER OF CREDIT REQUEST. Prior to the making
of each Revolving Credit Loan to such Borrower, the Administrative Agent
shall have received a Notice of Borrowing (whether in writing or by
telephone) from such Borrower meeting the requirements of Section 2.3.
Prior to the issuance of each Letter of Credit for account of either
Borrower, the Administrative Agent and the Letter of Credit Issuer shall
have received a Letter of Credit Request from such Borrower meeting the
requirements of Section 3.2(a).
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the relevant Borrower to each of the Lenders that
all the applicable conditions specified above exist as of that time.
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6.3 CONDITIONS PRECEDENT TO THE RESERVED METC AMOUNT
Each Credit Event utilizing the Reserved METC Amount is subject to the
Administrative Agent receiving from METC evidence that the Final Rate Case
Determination Date has occurred.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to make the
Revolving Credit Loans and issue or participate in Letters of Credit as provided
for herein, each Borrower (as to itself and each of its Subsidiaries) makes the
following representations and warranties to, and agreements with, the Lenders,
all of which shall survive the execution and delivery of this Agreement and the
making of the Revolving Credit Loans and the issuance of Letters of Credit.
7.1 ORGANIZATIONAL STATUS.
Such Borrower is validly organized and existing and in good standing under
the laws of the state or jurisdiction of its incorporation or organization, is
duly qualified to do business and is in good standing as a foreign entity in
each jurisdiction where the nature of its business requires such qualification
(except where the failure to be so qualified could not reasonably be expected to
result in a Material Adverse Effect), and has full power and authority and holds
all requisite governmental licenses, permits and other approvals to enter into
and perform its obligations under this Agreement, to own and hold under lease
its property and to conduct its business substantially as currently conducted by
it.
7.2 CAPACITY, POWER AND AUTHORITY.
Such Borrower has the capacity, power and authority to execute, deliver and
carry out the terms and provisions of this Agreement and has taken all necessary
action, partnership, corporate or otherwise, to authorize the execution,
delivery and performance of this Agreement. Such Borrower has duly executed and
delivered this Agreement and this Agreement constitutes the legal, valid and
binding obligation of such Borrower enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and subject to general
principles of equity.
7.3 NO VIOLATION.
Neither the execution, delivery nor performance by such Borrower of this
Agreement nor compliance with the terms and provisions thereof and the other
transactions contemplated therein will (a) contravene any applicable provision
of any material law, statute, rule, regulation, order, writ, injunction or
decree of any court or Governmental Authority, (b) result in any breach of any
of the terms, covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the obligation to create
or impose) any Lien upon any of the property or assets of such Borrower or any
of its Subsidiaries pursuant to, the terms of any material indenture, loan
agreement, lease agreement, mortgage, deed of trust, agreement or other material
instrument to which such Borrower or any of its Subsidiaries is a party or by
which it or any of its property or assets is bound or (c) violate any provision
of such Borrower's Organic Documents.
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7.4 LITIGATION.
There are no actions, suits or proceedings pending or, to the knowledge of
such Borrower or any of its Subsidiaries (after due internal inquiry),
threatened with respect to the Business, such Borrower or any of its
Subsidiaries that could reasonably be expected to result in a Material Adverse
Effect.
7.5 GOVERNMENTAL APPROVALS.
No order, consent, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, or notice to, any
Governmental Authority (other than those that have been, or on the Closing Date
will be, obtained and in full force and effect) is required to authorize or is
required in connection with (a) the execution, delivery and performance by such
Borrower of this Agreement or (b) the legality, validity, binding effect or
enforceability of this Agreement with respect to such Borrower.
7.6 TRUE AND COMPLETE DISCLOSURE.
To the knowledge of such Borrower, after due inquiry:
(a) All factual information and data (taken as a whole) heretofore or
contemporaneously furnished (other than any projections and pro forma
financial information), by or on behalf of such Borrower or any of its
Subsidiaries or any of their respective authorized consultants, agents or
representatives in writing to the Administrative Agent and/or any Lender on
or before the Closing Date (including all information contained in this
Agreement with respect to such Borrower) for purposes of or in connection
with this Agreement or any transaction contemplated herein was true and
complete in all material respects on the date as of which such information
or data is dated or certified and did not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements contained therein, taken as a whole, not materially
misleading at such time in light of the circumstances under which such
statements were made.
(b) The projections and pro forma financial information contained in
the information and data referred to in paragraph (a) above were prepared
in good faith based upon assumptions believed by such Persons to be
reasonable at the time made, it being recognized by the Lenders that such
projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections
may differ from the projected results.
7.7 FINANCIAL CONDITION; FINANCIAL STATEMENTS.
Such Borrower has heretofore furnished to the Lenders its consolidated
balance sheet and statements of income, stockholders' equity and cash flows as
of and for the fiscal years ended December 31, 2004 and December 31, 2005,
reported on by independent public accountants of recognized national standing
together with the unaudited balance sheet and statements of income,
stockholders' equity and cash flows as and for the nine-month period ending
September 30, 2006. Such financial statements present fairly in all material
respects the consolidated
42
financial position of such Borrower and its Subsidiaries at the respective dates
of said statements and the results of operations for the respective periods
covered thereby. All such financial statements have been prepared in accordance
with GAAP consistently applied except to the extent provided in the notes to
said financial statements. All balance sheets, all statements of income and of
cash flow and all other financial information of each of such Borrower and its
Subsidiaries furnished pursuant to Section 8.1 have been and will for periods
following the Closing Date be prepared in accordance with GAAP consistently
applied, and do or will present fairly the consolidated financial condition of
the Persons covered thereby as at the dates thereof and the results of their
operations for the periods then ended.
7.8 TAX RETURNS AND PAYMENTS.
Such Borrower and its Subsidiaries has filed all material tax returns,
domestic and foreign, required to be filed by it and has paid all material taxes
and assessments payable by it that have become due, other than those not yet
delinquent or contested in good faith. Such Borrower and each of its respective
Subsidiaries have paid, or have provided adequate reserves (in the good faith
judgment of the management of such Borrower) in accordance with GAAP for the
payment of, all material income taxes applicable for all prior fiscal years and
for the current fiscal year to the Closing Date.
7.9 ENVIRONMENTAL MATTERS.
Except as set forth in Schedule II:
(a) Other than instances of noncompliance that could not reasonably be
expected to have a Material Adverse Effect: (i) such Borrower and each of
its Subsidiaries are in compliance with all Environmental Laws in all
jurisdictions in which such Borrower and each of its Subsidiaries are
currently doing business (including having obtained all material permits
required under Environmental Laws) and (ii) such Borrower will comply and
cause each of its Subsidiaries to comply with all such Environmental Laws
(including all permits required under Environmental Laws); and
(b) Neither such Borrower nor any of its Subsidiaries has treated,
stored, transported or disposed of Hazardous Materials at or from any
currently or formerly owned Real Estate or facility relating to its
business in a manner that could reasonably be expected to have a Material
Adverse Effect.
7.10 PROPERTIES.
Such Borrower and each of its Subsidiaries has good title to or a leasehold
or easement interest in all of its properties that are necessary for the
operation of its respective business as currently conducted and as proposed to
be conducted, free and clear in each case of all Liens (other than any Liens
permitted by this Agreement) except where the failure to have such good title
could not reasonably be expected to have a Material Adverse Effect.
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7.11 PENSION AND WELFARE PLANS.
During the twelve-consecutive-month period prior to the Closing Date and
prior to the date of any Credit Event hereunder, except as could not reasonably
be expected have a Material Adverse Effect, (a) no steps have been taken to
terminate any Pension Plan of such Borrower, (b) no contribution failure has
occurred with respect to any Pension Plan of such Borrower sufficient to give
rise to a Lien under Section 302(f) of ERISA, (c) no condition exists or event
or transaction has occurred with respect to any Pension Plan which might result
in the incurrence by such Borrower or any member of the Controlled Group of any
liability, fine or penalty and (d) except as disclosed in Schedule III, neither
such Borrower nor any member of the Controlled Group has any contingent
liability with respect to any post-retirement benefit under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of Title I of
ERISA.
7.12 REGULATIONS U AND X.
Neither the making of any Revolving Credit Loan to such Borrower hereunder
nor the use of the proceeds thereof will violate the provisions of F.R.S. Board
Regulation U or Regulation X.
7.13 INVESTMENT COMPANY ACT.
Neither such Borrower nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
7.14 NO MATERIAL ADVERSE CHANGE.
There has been no material adverse change in the business, assets,
operations, property or financial condition of such Borrower and its
Subsidiaries taken as a whole since December 31, 2006.
7.15 DEEMED REPETITION OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties set out in Sections 7.1 to 7.13
inclusive (and solely in the case of the initial Credit Event, Section 7.14)
will be deemed to be repeated by the relevant Borrower as of the date of each
request for a new Credit Event, by such Borrower (including conversions and
continuations of Borrowings) and as of the date on which a Successor Borrower
assumes all of the obligations of the Borrower under the Credit Documents
pursuant to Section 9.2(a) (but after giving effect to such assumption), except
to the extent that on or prior to such date (a) such Borrower has advised the
Administrative Agent in writing of a variation in any such representation or
warranty, and (b) the Required Lenders have approved such variation, and except
where such representations and warranties expressly relate to an earlier date,
in which case such representations and warranties shall have been true and
correct in all material respects as of such earlier date.
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ARTICLE 8
AFFIRMATIVE COVENANTS
Each Borrower (on its own behalf and on behalf of each of its Subsidiaries)
hereby covenants and agrees that on the Closing Date and thereafter, for so long
as this Agreement is in effect and until the Revolving Commitment Maturity Date:
8.1 INFORMATION COVENANTS.
Such Borrower will furnish to each Lender and the Administrative Agent:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any event
on or before the date that is 90 days after the end of each fiscal year of
such Borrower, the consolidated balance sheet of such Borrower and its
Subsidiaries as at the end of such fiscal year and the related consolidated
statement of operations and cash flows for such fiscal year prepared in
accordance with GAAP, setting forth comparative consolidated figures for
the preceding fiscal year, and certified by independent chartered
accountants of recognized national standing whose opinion shall not be
qualified as to the scope of audit or as to the status of such Borrower or
any of its Subsidiaries as a going concern, together in any event with a
certificate of such accounting firm stating that in the course of its
regular audit of the business of such Borrower and its Subsidiaries, which
audit was conducted in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge of any Default or
Event of Default with respect to such Borrower relating to Section 9.4 that
has occurred and is continuing or, if in the opinion of such accounting
firm such a Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event on or before the date that is 45 days after the end of each of the
first three fiscal quarters in each fiscal year of such Borrower, the
consolidated balance sheet of such Borrower and its Subsidiaries as at the
end of such fiscal quarter and the related consolidated statement of
operations for such fiscal quarter and for the elapsed portion of the
fiscal year ended with the last day of such fiscal quarter, and the related
consolidated statement of cash flows for such fiscal quarter and for the
elapsed portion of the fiscal year ended with the last day of such fiscal
quarter, and, setting forth comparative consolidated figures for the
related periods in the prior fiscal year or, in the case of such
consolidated balance sheet, for the last day of the prior fiscal year, and
prepared in accordance with GAAP, all of which shall be certified by an
Authorized Officer of such Borrower, subject to changes resulting from
audit and normal year-end audit adjustments.
(c) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Sections 8.1(a) and (b), a certificate
of an Authorized Officer of such Borrower in substantially the form of
Exhibit F (a "COMPLIANCE CERTIFICATE") to the effect that no Default or
Event of Default with respect to such Borrower exists or, if any Default or
Event of Default with respect to such Borrower does exist, specifying the
nature and extent thereof, which certificate shall be in form and detail
satisfactory to the Administrative Agent, acting reasonably, and setting
forth the calculations required to
45
establish whether such Borrower was in compliance with the provisions of
Section 9.4 as at the end of such fiscal year or period, as the case may
be.
(d) NOTICE OF DEFAULT OR LITIGATION. Promptly after an Authorized
Officer of such Borrower or any of its Subsidiaries obtains knowledge
thereof, notice of (i) the occurrence of any event that constitutes a
Default or Event of Default with respect to such Borrower, which notice
shall specify the nature thereof, the period of existence thereof and what
action such Borrower proposes to take with respect thereto and (ii) any
litigation or governmental proceeding pending or threatened against such
Borrower or any of its Subsidiaries that could reasonably be expected to
result in a Material Adverse Effect, together with a certificate of the
Chief Financial Officer of such Borrower (in detail reasonably satisfactory
to the Administrative Agent) setting forth the calculations required to
establish whether such Borrower and its Subsidiaries are in pro forma
compliance with Section 9.4 of this Agreement.
(e) ENVIRONMENTAL MATTERS. Promptly after an Authorized Officer of
such Borrower or any of its Subsidiaries obtains knowledge or notice of any
one or more of the following environmental matters, unless such
environmental matters would not, individually or when aggregated with all
other such matters, be reasonably expected to result in a Material Adverse
Effect:
(i) Any pending or threatened Environmental Claim against such
Borrower or any of its Subsidiaries or any Real Estate (as defined
below);
(ii) Any condition or occurrence that (x) results in
non-compliance by such Borrower or any of its Subsidiaries with any
applicable Environmental Law or (y) could reasonably be anticipated to
form the basis of an Environmental Claim against such Borrower or any
of its Subsidiaries or any Real Estate;
(iii) Any condition or occurrence on any Real Estate that could
reasonably be anticipated to cause such Real Estate to be subject to
any restrictions on the ownership, occupancy, use or transferability
of such Real Estate under any Environmental Law; and
(iv) The taking of any removal or remedial action in response to
the actual or alleged presence of any Hazardous Material on any Real
Estate.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and such Borrower's response thereto. The term "REAL ESTATE" shall mean
land, buildings and improvements owned or leased by such Borrower or any of
its Subsidiaries, but excluding all operating fixtures and equipment,
whether or not incorporated into improvements.
(f) PENSION PLANS. Promptly after an Authorized Officer of such
Borrower or any of its Subsidiaries obtains knowledge thereof where the
liability, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect, notice of and copies of all
documentation relating to (i) the institution of any steps by any Person to
terminate any Pension Plan of such Borrower, (ii) the failure to make a
required
46
contribution to any Pension Plan of such Borrower if such failure is
sufficient to give rise to a Lien under Section 302(f) of ERISA, (iii) the
taking of any action with respect to a Pension Plan which could result in
the requirement that such Borrower or any of its Subsidiaries furnish a
bond or other security to such Pension Plan, or (iv) the occurrence of any
event with respect to any Pension Plan which could result in the incurrence
by such Borrower or any of its Subsidiaries of any material liability, fine
or penalty.
(g) OTHER INFORMATION. Promptly upon filing thereof, copies of any
filings or registration statements with, and reports to, any Governmental
Authority in any relevant jurisdiction by such Borrower or any of its
Subsidiaries pursuant to applicable securities laws (other than amendments
to any registration statement (to the extent such registration statement,
in the form it becomes effective, is delivered to the Lenders), exhibits to
any registration statement) and copies of all financial statements, proxy
statements, notices and reports that such Borrower or any of its
Subsidiaries shall send to the holders of any publicly issued securities of
such Borrower and/or any of its Subsidiaries in their capacity as such
holders (in each case to the extent not theretofore delivered to the
Lenders pursuant to this Agreement) and, with reasonable promptness, such
other information (financial or otherwise) as the Administrative Agent on
its own behalf or on behalf of any Lender may reasonably request in writing
from time to time.
8.2 BOOKS, RECORD AND INSPECTIONS.
Such Borrower will, and will cause each of its Subsidiaries to, (i) permit
officers and designated representatives of the Administrative Agent or the
Required Lenders to visit and inspect any of the properties or assets of such
Borrower and its Subsidiaries in whomever's possession to the extent that it is
within such Borrower's or its Subsidiaries' control to permit such inspection,
and to examine the books of account of such Borrower and any such Subsidiaries
and discuss the affairs, finances and accounts of such Borrower and of any such
Subsidiaries with, and be advised as to the same by, its and their officers and
independent accountants, and (ii) permit officers and designated representatives
of Lenders to view copies of contracts of such Borrower and its Subsidiaries
(subject to reasonable confidentiality arrangements established by such
Borrower), all at such reasonable times during normal business hours and
intervals and to such reasonable extent as the Administrative Agent, the
Required Lenders or the Lenders, as the case may be, may desire.
8.3 MAINTENANCE OF INSURANCE.
Such Borrower will, and will cause each of its Subsidiaries to, at all
times maintain in full force and effect, with insurance companies that such
Borrower believes (in the good faith judgment of the management of such
Borrower) are financially sound and responsible at the time the relevant
coverage is placed or renewed, insurance in at least such amounts and against at
least such risks (and with such risk retentions) as are usually insured against
in the same general area by companies engaged in the same or a similar business.
47
8.4 PAYMENT OF TAXES.
Such Borrower will pay and discharge, and will cause each of its
Subsidiaries to pay and discharge, all material taxes, assessments and
governmental charges or levies imposed upon it or upon its capital, income or
profits, or upon any properties belonging to it, prior to the date on which
material penalties attach thereto, and all lawful material claims that, if
unpaid, could reasonably be expected to become a material Lien upon any
properties of such Borrower or any of its Subsidiaries; provided that neither
the such Borrower nor any of its Subsidiaries shall be required to pay any such
tax, assessment, charge, levy or claim that is being contested in good faith and
by proper proceedings if it has maintained adequate reserves (in the good faith
judgment of the management of such Borrower) with respect thereto in accordance
with GAAP.
8.5 ORGANIZATIONAL EXISTENCE.
Such Borrower will do, and will cause each of its Subsidiaries to do, or
cause to be done, all things necessary to preserve and keep in full force and
effect its existence and its corporate or other organizational rights and
authority, except to the extent that the failure to do so could not reasonably
be expected to have a Material Adverse Effect; provided that such Borrower and
its Subsidiaries may consummate any transaction permitted under Section 9.2.
8.6 COMPLIANCE WITH STATUTES, OBLIGATIONS, ETC.
Such Borrower will, and will cause each of its Subsidiaries to, comply with
all applicable laws, rules, regulations and orders (including Environmental
Laws), except to the extent the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
8.7 GOOD REPAIR.
Such Borrower will, and will cause each of its Subsidiaries to, ensure that
its properties and equipment used or useful in its business in whomever's
possession they may be to the extent that it is within such Borrower's or its
Subsidiaries' control to cause the same, are kept in good repair, working order
and condition, normal wear and tear excepted, and that from time to time there
are made in such properties and equipment all needful and proper repairs,
renewals, replacements, extensions, additions, betterments and improvements
thereto, to the extent and in the manner customary for companies in similar
businesses and consistent with third party leases, except in each case to the
extent the failure to do so could not be reasonably expected to have a Material
Adverse Effect.
8.8 TRANSACTIONS WITH AFFILIATES.
Such Borrower will conduct, and will cause each of its Subsidiaries to
conduct, all transactions with any of its Affiliates on terms that are
substantially as favorable to such Borrower or such Subsidiary as it would
obtain in a comparable arm's-length transaction with a Person that is not an
Affiliate; provided that the foregoing restrictions shall not apply to (a)
transactions in the ordinary course of business at prices and on terms and
conditions not less favorable to such Borrower or such Subsidiary than could be
obtained on an arm's length basis from unrelated third parties, (b) transactions
between and among such Borrower and its wholly
48
owned Subsidiaries that do not involve any other Affiliate and (c) transactions
permitted by Section 9.4.
8.9 END OF FISCAL YEARS; FISCAL QUARTERS.
Such Borrower will, for financial reporting purposes, cause (a) each of
its, and each of its Subsidiaries', fiscal years to be comprised of twelve
calendar months ending on December 31 of each year and (b) each of its, and each
of its Subsidiaries', fiscal quarters to end on dates consistent with such
fiscal year-end; provided that such Borrower may, upon written notice to the
Administrative Agent, change the financial reporting convention specified above
to any other financial reporting convention reasonably acceptable to the
Administrative Agent, in which case such Borrower and the Administrative Agent
will, and are hereby authorized by the Lenders to, make any adjustments to this
Agreement that are necessary in order to reflect such change in financial
reporting.
8.10 USE OF PROCEEDS.
Such Borrower will use the Letters of Credit and the proceeds of all the
Revolving Credit Loans only for the purposes set forth in Section 2.1(b).
8.11 CHANGES IN BUSINESS.
From the Closing Date, such Borrower and its Subsidiaries taken as a whole
will not fundamentally and substantively alter the character of their business
taken as a whole from the business conducted by such Borrower and its
Subsidiaries taken as a whole on the Closing Date following the consummation of
the Transactions and other business activities incidental or related to any of
the foregoing (the "BUSINESS").
ARTICLE 9
NEGATIVE COVENANTS
Each Borrower (on its own behalf and on behalf of each of its Subsidiaries)
hereby covenants and agrees that on the Closing Date and thereafter until the
Revolving Commitment Maturity Date:
9.1 LIMITATION ON LIENS.
Such Borrower will not, and will not permit any of its Subsidiaries to,
create, incur, assume or suffer to exist any Lien upon any property or assets of
any kind (real or personal, tangible or intangible) of such Borrower or any of
its Subsidiaries, whether now owned or hereafter acquired, except:
(a) Permitted Liens;
(b) Liens securing indebtedness incurred within 180 days of the
acquisition, construction or improvement of fixed or capital assets to
finance the acquisition, construction or improvement of such fixed or
capital assets; provided that the principal
49
amount of such Indebtedness is not increased above the principal amount
thereof outstanding immediately prior to such refinancing, refunding,
renewal or extension;
(c) Liens existing on the Closing Date and as set out on Schedule IV;
(d) Liens existing on the assets of any Person that becomes a
Subsidiary, or existing on assets acquired; provided that such Liens attach
at all times only to the same assets that such Liens attached to and secure
only the same Indebtedness that such Liens secured, immediately prior to
such acquisition;
(e) (i) Liens placed upon the Capital Stock or assets of any
Subsidiary acquired to secure Indebtedness of such Borrower or any
Subsidiary incurred in connection with such acquisition and (ii) Liens
placed upon the assets of such Subsidiary acquired pursuant to an
acquisition to secure a guarantee by such Subsidiary of any such
Indebtedness of such Borrower or any Subsidiary;
(f) Liens (i) on assets of ITC (of the same type as constitute
collateral under the ITC First Mortgage Indenture on the date hereof) to
secure Indebtedness of ITC under the ITC First Mortgage Indenture, (ii) on
assets of METC (of the same type as constitute collateral under the METC
First Mortgage Indenture on the date hereof) to secure Indebtedness of METC
under the METC First Mortgage Indenture and (iii) on assets of any
Subsidiary (of the same type that constitute collateral under the ITC First
Mortgage Indenture and/or the METC First Mortgage Indenture on the date
hereof) to secure Indebtedness of such Subsidiary under any similar
mortgage bond indenture;
(g) the replacement, extension or renewal of any Lien permitted by
clauses (a) through (f) above upon or in the same assets theretofore
subject to such Lien or the replacement, extension or renewal (without
increase in the amount or change in any direct or contingent obligor except
to the extent otherwise permitted hereunder) of the Indebtedness secured
thereby;
(h) additional Liens so long as the aggregate outstanding principal
amount of the obligations so secured (including the imputed principal
amount of any Capitalized Lease Obligations) for the Borrowers and their
Subsidiaries does not exceed $20,000,000 in the aggregate.
9.2 LIMITATION ON FUNDAMENTAL CHANGES.
Such Borrower will not enter into any merger or consolidation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of,
all or substantially all its business units, assets or other properties, except
that:
(a) any Subsidiary of such Borrower or any other Person may be merged
or consolidated (including by way of liquidation or winding up) with or
into such Borrower; provided that (i) such Borrower shall be the continuing
or surviving entity or, so long as after giving effect to such merger or
consolidation such Person's debt rating shall be in "Category 6" or higher,
as determined pursuant to the definition of "Applicable Margin",
50
the Person formed by or surviving any such merger or consolidation (if
other than such Borrower) shall be an entity organized or existing under
the laws of the United States or any State thereof, (such Borrower or
Person, as the case may be, being herein referred to as the "SUCCESSOR
BORROWER"), (ii) such Successor Borrower shall expressly assume all the
obligations of such Borrower under this Agreement pursuant to a supplement
hereto in form and substance reasonably satisfactory to the Administrative
Agent, (iii) no Default or Event of Default with respect to such Borrower
is then existing and no Default or Event of Default with respect to such
Borrower would result from the consummation of such merger or
consolidation, (iv) such Borrower shall be in compliance, on a pro forma
basis after giving effect to such merger or consolidation, with the
covenants set forth in Section 9.4 as such covenants are recomputed as at
the last day of the most recently ended Test Period under each such Section
as if such merger or consolidation had occurred on the first day of such
Test Period, and (v) such Borrower shall have delivered to the
Administrative Agent an officer's certificate, in form and substance
reasonably satisfactory to the Administrative Agent, certifying the
compliance referred to in clause (iv) above and stating that such merger or
consolidation and such supplement to this Agreement comply with this
Agreement and a legal opinion (in form and substance reasonably
satisfactory to the Administrative Agent) with respect to this Agreement to
be delivered, if any, pursuant to clause (ii) above; provided further that
if the foregoing are satisfied, such Successor Borrower (if other than such
Borrower) will succeed to, and be substituted for, such Borrower under this
Agreement; and
(b) such Borrower may enter into any merger or consolidation for the
purpose of changing its organizational form from a corporation to a limited
liability company or from a limited liability company to a corporation;
provided that such change has no adverse affect on the rights of the
Finance Parties.
9.3 LIMITATION ON DIVIDENDS.
If any Default or Event of Default with respect to such Borrower then
exists or would result therefrom, such Borrower will not declare or pay any
distributions (other than distributions payable solely in its Capital Stock) or
return any capital to its shareholders or make any other distribution, payment
or delivery of property or cash to its shareholders as such, or redeem, retire,
purchase or otherwise acquire, directly or indirectly, for consideration, any of
its Capital Stock or the Capital Stock of any direct or indirect shareholder of
such Borrower now or hereafter outstanding (or any warrants for or options or
stock appreciation rights in respect of any of its Capital Stock), or set aside
any funds for any of the foregoing purposes, or permit any of its Subsidiaries
to purchase or otherwise acquire for consideration any Capital Stock of such
Borrower, now or hereafter outstanding (or any options or warrants or stock
appreciation rights issued by such Person with respect to its Capital Stock).
9.4 DEBT TO CAPITALIZATION RATIO.
Such Borrower will not permit its Debt to Capitalization Ratio to be
greater than 65% at any time on or after the Closing Date.
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9.5 LIMITATION ON SALE-LEASE BACK TRANSACTIONS.
Such Borrower will not enter into any sale-leaseback transaction (a "SALE
AND LEASEBACK TRANSACTION") involving any of its property or assets whether now
owned or hereafter acquired, whereby such Borrower sells or otherwise transfers
such property or assets and thereafter leases or subleases such property or
assets or any part thereof or any other property or assets that such Borrower
intends to use for substantially the same purpose or purposes as the property or
assets sold or otherwise transferred unless (a) such Borrower would be entitled
to incur Indebtedness secured by a Lien on such property or assets pursuant to
Section 9.1 or (b) the Attributable Value of all Sale and Leaseback Transactions
entered into pursuant to this Section 9.5 does not exceed $20,000,000. A Sale
and Leaseback Transaction shall not be deemed to result in the creation of a
Lien..
ARTICLE 10
EVENTS OF DEFAULT
Each of the following specified events or occurrences described in Sections
10.1 through 10.8 with respect to a Borrower below shall constitute an "EVENT OF
DEFAULT" with respect to such Borrower:
10.1 PAYMENTS.
Such Borrower shall (a) default in the payment when due of any principal of
the Revolving Credit Loans or (b) default, and such default shall continue for
five or more days, in the payment when due of any interest on the Revolving
Credit Loans or any Fees or any Unpaid Drawings of any other amounts owing
hereunder.
10.2 REPRESENTATIONS, ETC.
Any representation, warranty or statement made or deemed made by such
Borrower herein or any certificate delivered or required to be delivered
pursuant hereto or thereto shall prove to be untrue in any material respect on
the date as of which made or deemed made (it being understood that, for purposes
of the foregoing, the truth of the representations and warranties set forth in
Section 7.6 shall be determined without reference to the knowledge of the such
Borrower).
10.3 COVENANTS.
Such Borrower shall (a) default in the due performance or observance by it
of any term, covenant or agreement contained in Section 8.1(d), Section 8.11 or
Article 9, or (b) default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in Section 10.1 or
10.2 or clause (a) of this Section 10.3) contained in this Agreement, and such
default shall continue unremedied for a period of at least 30 days after the
receipt of written notice by the Borrowers from the Administrative Agent or the
Required Lenders.
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10.4 DEFAULT UNDER OTHER AGREEMENTS.
(a) Such Borrower or any of its Subsidiaries shall (i) default in any
payment with respect to any Indebtedness, in excess of $15,000,000 in the
aggregate, beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause, any such
Indebtedness to become due prior to its stated maturity; or
(b) without limiting the provisions of clause (a) above, any such
Indebtedness shall be declared to be due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment or as a mandatory
prepayment, prior to the stated maturity thereof.
10.5 BANKRUPTCY, ETC.
Such Borrower or any Subsidiary of such Borrower shall commence a voluntary
case concerning itself under the Bankruptcy Code as now or hereafter in effect,
or any successor thereto or any similar legislation in any other applicable
jurisdiction (collectively, the "BANKRUPTCY CODE"); or an involuntary case is
commenced against such Borrower or any Subsidiary of such Borrower and the
petition or application is not contested within 10 days after commencement of
the case; or an involuntary case is commenced against such Borrower or any
Subsidiary of such Borrower and the petition or application is not dismissed
within 45 days after commencement of the case; or a receiver, trustee,
liquidator, custodian or similar official is appointed for, or takes charge of,
all or substantially all of the property of such Borrower or any Subsidiary of
such Borrower or such Borrower or any Subsidiary of such Borrower commences any
other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to such Borrower or any
Subsidiary of such Borrower itself; or there is commenced against such Borrower
or any Subsidiary of such Borrower any such proceeding that remains undismissed
for a period of 45 days; or such Borrower or any Subsidiary of such Borrower is
adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or such Borrower or any
Subsidiary of such Borrower makes a general assignment for the benefit of
creditors, files under the Bankruptcy Act or takes a similar action under the
Bankruptcy Act; or any corporate or similar action is taken by such Borrower or
any Subsidiary of such Borrower for the purpose of effecting any of the
foregoing; or such Borrower or any Subsidiary of such Borrower is unable to pay
its debts as they fall due, or makes a general assignment for the benefit of or
a composition with its creditors generally; or such Borrower or any Subsidiary
of such Borrower takes any corporate or similar action or other steps are taken
or legal proceedings are started for its winding-up, dissolution, administration
or insolvent re-organization or for the appointment of a liquidator,
administrator or administrative receiver of it.
53
10.6 JUDGMENTS.
One or more judgments or decrees shall be entered against such Borrower or
any of its Subsidiaries involving a liability of $15,000,000 or more in the
aggregate for all such judgments and decrees for such Borrower and its
Subsidiaries (to the extent not paid or fully covered by insurance provided by a
carrier not disputing coverage) and any such judgments or decrees shall not have
been satisfied, vacated, discharged or stayed or bonded pending appeal within 60
days from the entry thereof.
10.7 CHANGE OF OWNERSHIP.
A Change of Ownership shall occur with respect to Holdco or such Borrower.
10.8 PENSION PLANS.
Any of the following events shall occur with respect to any Pension Plan of
such Borrower: (a) the institution of any steps by such Borrower or any other
Person to terminate a Pension Plan of such Borrower if, as a result of such
termination, such Borrower or any such member could be required to make a
contribution to such Pension Plan, or could reasonably expect to incur a
liability or obligation to such Pension Plan in respect of such termination; or
(b) a contribution failure occurs with respect to any Pension Plan of such
Borrower sufficient to give rise to a Lien under section 302(f) of ERISA, where
in each case under clauses (a) or (b) such contribution, liability, obligation
or Lien would reasonably be expected to have a Material Adverse Effect.
10.9 REMEDIES.
Upon the occurrence of any Event of Default described above, and in any
such event, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent shall, upon the written request of the
Required Lenders, by written notice to the Borrower that has committed such
Event of Default, or whose Subsidiaries have committed such Event of Default,
take any or all of the following actions, without prejudice to the rights of the
Administrative Agent to enforce its claims against such Borrower, except as
otherwise specifically provided for in this Agreement (provided that, if an
Event of Default specified in Section 10.5 shall occur with respect to such
Borrower, the result that would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i), and (ii) below shall occur
automatically without the giving of any such notice): (i) declare such
Borrower's Availability Limit to be terminated, whereupon the Revolving Credit
Commitments of each Lender with respect to such Borrower shall forthwith
terminate immediately and any Fees theretofore accrued shall forthwith become
due and payable without any other notice of any kind; (ii) declare the principal
of and any accrued interest in respect of all Revolving Credit Loans to such
Borrower and all obligations owing hereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by such Borrower; (iii)
terminate any Letter of Credit issued at the request of such Borrower that may
be terminated in accordance with its terms; (iv) direct such Borrower to pay
(and each Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 10.5 with respect to a
Borrower,
54
it will pay) to the Administrative Agent at the office of the Administrative
Agent from time to time notified by the Administrative Agent to the Borrower
(but initially the office set forth for the Administrative Agent in Section
12.2(a)(ii)) such additional amounts of cash, to be held as security for such
Borrower's reimbursement obligations for Drawings that may subsequently occur
thereunder, equal to the aggregate Stated Amount of all Letters of Credit issued
at the request of such Borrower and then outstanding; and/or (iv) exercise any
other remedies that may be available under this Agreement or applicable law.
10.10 REMEDIES CUMULATIVE.
The rights and remedies of the Administrative Agent and the Lenders under
this Agreement are cumulative and are in addition to and not in substitution for
any rights or remedies provided by law or by equity, and any single or partial
exercise by the Lenders of any right or remedy for a default or breach of any
term, covenant, condition or agreement herein contained shall not be deemed to
be a waiver of or to alter, affect, or prejudice any other right or remedy or
other rights or remedies to which the Lenders may be lawfully entitled for the
same default or breach, and any waiver by the Administrative Agent or the
Lenders of the strict observance, performance or compliance with any term,
covenant, condition or agreement herein contained, and any indulgence granted by
the Administrative Agent or the Lenders shall be deemed not to be a waiver of
any subsequent default. In the event that the Administrative Agent or the
Lenders shall have proceeded to enforce any such right, remedy or power
contained herein and such proceedings shall have been discontinued or abandoned
for any reason, by written agreement between the Lenders and the Borrowers, then
in each such event the Borrowers and the Lenders shall be restored to their
former positions and the rights, remedies and powers of the Lenders shall
continue as if no such proceedings had been taken.
ARTICLE 11
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Letter of Credit Issuer hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrowers or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such
other number or
55
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 12.1), and (c) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrowers or
any of their Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 12.1) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrowers or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article 6 or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrowers), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Letter of Credit Issuer and the
Borrowers. Upon any such resignation, the Required Lenders shall have the right,
with the consent of the Borrowers (not to be unreasonably withheld), to appoint
a successor. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may,
56
on behalf of the Lenders and the Letter of Credit Issuer, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrowers to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 12.5 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
Notwithstanding anything herein to the contrary the Sole Bookrunner,
the Sole Lead Arranger and the Co-Syndication Agents named on the cover page of
this Agreement shall not have any duties or liabilities under this Agreement,
except in its capacity, if any, as a Lender.
ARTICLE 12
MISCELLANEOUS
12.1 AMENDMENTS AND WAIVERS.
Neither this Agreement, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 12.1. The Required Lenders may from time to time (a) enter into with the
Borrowers and Administrative Agent, as applicable, written amendments,
supplements or modifications hereto for the purpose of adding or amending any
provisions to this Agreement or changing in any manner the rights of the Lenders
or of the Borrowers hereunder or thereunder, (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
any Default or Event of Default and its consequences; provided that no such
waiver and no such amendment, supplement or modification shall directly (i)
forgive any portion of, or extend or waive the final scheduled maturity date of,
any Revolving Credit Loan, or reduce the stated rate of, forgive any portion of
or extend the date for the payment of any interest or fee payable hereunder
(other than as a result of waiving the applicability of any post-default
increase in interest rates) or extend the final expiration date of any Lender's
Revolving Credit Commitment or extend the final expiration date of any Letter of
Credit beyond the L/C Maturity Date or increase the amount of any of the
Revolving Credit
57
Commitments of any Lender or amend Section 3.2, in each case without the written
consent of each Lender whose Revolving Credit Loan, interest, fee or Revolving
Credit Commitment is changed as set forth above thereby, or (ii) amend, modify
or waive any provision of this Section 12.1 or reduce the percentages specified
in the definitions of the terms "Required Lenders" or consent to the assignment
or transfer by either Borrower of its rights and obligations under this
Agreement (except as permitted pursuant to Section 8.1), in each case without
the written consent of each Lender, or (iii) amend, modify or waive any
provision of Article 11 without the written consent of the then-current
Administrative Agent, or (iv) amend, modify or waive any provision of Section
3.2 or Section 12.6(a)(ii) (to the extent it relates to the Letter of Credit
Issuer) without the written consent of the Letter of Credit Issuer, or (v) amend
Section 6.2(a) to the extent that it relates to payments for the ratable account
of Lenders without the written consent of each Lender directly and adversely
affected thereby, in each case without the written consent of all the Lenders
except as otherwise specifically provided in this Section 12.1 and provided
further that at any time that no Default or Event of Default has occurred and is
continuing, the Revolving Credit Commitment of any Lender may be increased for
any purpose permitted hereunder, with the consent of such Lender, the Borrowers
and the Administrative Agent (which consent, in the case of the Administrative
Agent, shall not be unreasonably withheld) and without the consent of the
Required Lenders, as provided for in this Section 12.1.
Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the affected Lenders and shall be binding upon the
Borrowers, such Lenders, the Administrative Agent and all future holders of the
affected Revolving Credit Loans. In the case of any waiver, the Borrowers, the
Lenders and the Administrative Agent shall be restored to their former positions
and rights hereunder, and any Default or Event of Default waived shall be deemed
to be cured and not continuing, it being understood that no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
12.2 NOTICES.
(a) All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by facsimile transmission)
and, unless otherwise expressly provided herein, if mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received and, if transmitted by
facsimile, shall be deemed given when the confirmation of transmission thereof
is received by the transmitter, in each case addressed as follows in the case of
each Borrower, the Administrative Agent and as set forth on Schedule I in the
case of each Lender (or as set forth in the Assignment and Acceptance or New
Lender Supplement of any Lender which is an Assignee) or to such other address
as may be hereafter notified by the respective parties hereto:
(i) The Borrowers:
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International Transmission Company
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Michigan Electric Transmission Company, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent:
JPMorgan Chase Bank, N.A.
Loan Operations
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to (except in the case of notices relating to
borrowings, continuations, conversions and letters of credit):
JPMorgan Chase Bank, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
Mail Code ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President, Mid-Corporate Power Credit
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Sections 2.3, 2.6, 2.10, 4.2 and 5.1 shall not be
effective until received.
(b) ELECTRONIC COMMUNICATIONS. The Borrowers agree that the Administrative
Agent may make communications available to the Lenders by posting such
communications on Intralinks or a substantially similar electronic transmission
system (the "Platform"). THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE".
THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS
OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND
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EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT
PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL
THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES
(COLLECTIVELY, THE "AGENT PARTIES") HAVE ANY LIABILITY TO THE BORROWERS, ANY
LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT
OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES
(WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS' OR THE
ADMINISTRATIVE AGENT'S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET,
EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
PRIMARILY FROM SUCH AGENT PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
12.3 NO WAIVER; CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
12.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Revolving Credit Loans hereunder.
12.5 PAYMENT OF EXPENSES AND TAXES.
The Borrowers agree (a) to pay or reimburse the Arranger and the
Administrative Agent for all their reasonable and documented out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby (including the syndication of the Revolving Credit Commitments),
including the reasonable fees, disbursements and other charges of one counsel to
the Administrative Agent, (b) to pay or reimburse each Lender and the
Administrative Agent for all its reasonable and documented costs and expenses
incurred in connection with the enforcement or preservation of any rights under,
or "workout" or restructuring of, this Agreement and any such other
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documents, including the reasonable fees, disbursements and other charges of
counsel to each Lender and of counsel to the Administrative Agent, (c) to pay,
indemnify, defend and hold harmless each Lender and the Administrative Agent
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, that may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this Agreement
and any such other documents, and (d) to pay, indemnify, defend and hold
harmless each Lender, the Arranger and the Administrative Agent and their
respective directors, officers, employees, trustee, agents and Affiliates
(collectively, the "INDEMNITEES") from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (including
reasonable and documented fees, disbursements and other charges of counsel
incurred in connection with any investigative, administrative or judicial
proceeding commenced or threatened by any Person, whether or not any such
Indemnitee shall be designated as a party or potential party thereto, and any
fees or expenses incurred by any Indemnitee in enforcing this indemnity),
whether direct, indirect or consequential, whether based on strict liability or
negligence, and whether based on any federal, provincial or foreign laws,
statutes, rules, regulations or guidelines (including Environmental Laws),
common law, equity, contract or otherwise that may be imposed on, incurred by or
asserted against any Indemnitee, in any manner arising out of or relating to (i)
this Agreement and any other agreements or documents contemplated hereby or
thereby, the other transactions contemplated hereby (including the execution,
delivery, enforcement, performance and administration of this Agreement and the
breach by either Borrower of, or default by either Borrower under, any of the
provisions of this Agreement, (ii) the violation of, non-compliance with or
liability under, any Environmental Law applicable to the operations of either
Borrower or any of its Subsidiaries or applicable to any of the Real Estate, or
(iii) any Environmental Claim or any Hazardous Materials relating to or arising
from, directly or indirectly, any past or present activity, operation, land
ownership, possession or control, or practice of, either Borrower or any of its
Subsidiaries from time to time (all the foregoing in this clause (d),
collectively, the "INDEMNIFIED LIABILITIES"); provided that neither Borrower
shall have an obligation hereunder to any Indemnitee with respect to indemnified
liabilities arising from the gross negligence or wilful misconduct of such
Indemnitee as determined by a final judgment of a court of competent
jurisdiction and provided further that neither Borrower shall have an obligation
hereunder to any Indemnitee with respect to claims to the extent relating to
disputes among the Lenders, any of the Arranger and/or the Administrative Agent.
The agreements in this Section 12.5 shall survive repayment of the Revolving
Credit Loans and all other amounts payable hereunder.
Each of the Lenders, the Arranger and the Administrative Agent agree that
any and all of their respective rights under this Agreement and any other
agreements contemplated hereby and thereby, including recourse for any
obligation or claim for any indemnification thereunder, is limited to recourse
to each Borrower and its assets as contemplated hereby, and none of the direct
or indirect limited partners, partners, shareholders, members of either Borrower
or any of their respective employees, directors or officers shall have any
obligations or liability, or be subject to any recourse, in respect of any such
obligations or claims hereunder or thereunder.
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12.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) ASSIGNMENTS GENERALLY. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby (including any Affiliate of the Letter
of Credit Issuer that issues any Letter of Credit), except that (i) neither
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by a Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Letter of Credit Issuer that
issues any Letter of Credit), Participants (to the extent provided in paragraph
(c) of this Section) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the Letter of Credit Issuer
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) ASSIGNMENTS BY LENDERS.
(i) Assignments Generally. Subject to the conditions set forth in
paragraph (b)(ii) below, any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Revolving Credit Commitment and the Loans at the time owing to
it) with the prior written consent (such consent not to be unreasonably
withheld) of:
(A) the Borrowers, provided that no consent of the Borrowers shall be
required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default has occurred and is continuing,
any other assignee;
(B) the Administrative Agent; and
(C) the Letter of Credit Issuer.
(ii) Certain Conditions to Assignments. Assignments shall be subject
to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an assignment of the entire remaining amount of the assigning
Lender's Revolving Credit Commitment or Revolving Credit Loans, the amount
of the Revolving Credit Commitment or Revolving Credit Loans of the
assigning Lender subject to each such assignment (determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $5,000,000 unless each
of the Borrowers and the Administrative Agent otherwise consent, provided
that no such consent of the Borrowers shall be required if an Event of
Default has occurred and is continuing;
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(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
(iii) Effectiveness of Assignments. Subject to acceptance and
recording thereof pursuant to paragraph (b)(iv) of this Section, from and after
the effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.10, 2.11, 3.5 and 12.5). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.
(iv) Maintenance of Register. The Administrative Agent, acting for
this purpose as an agent of each Borrower, shall maintain at one of its offices
a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Revolving Credit
Commitment of, and principal amount of the Revolving Credit Loans and Unpaid
Drawings owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive, and each
Borrower, the Administrative Agent, the Letter of Credit Issuer and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by each Borrower, the Letter of Credit Issuer and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(v) Acceptance of Assignments by Administrative Agent. Upon its
receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignee's completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register; provided that if either the
assigning Lender or the assignee shall have failed to make any payment required
to be made by it pursuant to Section 2.4(b), 3.3 or 3.4, the Administrative
Agent shall have no obligation to accept such Assignment and Acceptance and
record the information therein in the Register unless and until such payment
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shall have been made in full, together with all accrued interest thereon. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) PARTICIPATIONS.
(i) Participations Generally. Any Lender may, without the consent of
either Borrower, the Administrative Agent or the Letter of Credit Issuer, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Revolving Credit Commitment and the Revolving
Credit Loans owing to it); provided that (A) such Lender's obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) each Borrower, the Administrative Agent, the Letter of Credit Issuer and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the third sentence of Section
12.1 that affects such Participant. Subject to paragraph (c)(ii) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.10, 2.11 and 3.5 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 12.8 as though it were a Lender.
(ii) Limitations on Rights of Participants. A Participant shall not be
entitled to receive any greater payment under Section 2.10 or 3.5 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with each Borrower's prior written consent. Any
Participant that is a Non-U.S. Lender shall not be entitled to the benefits of
Section 5.3 unless such Participant complies with Section 5.3(c).
(d) CERTAIN PLEDGES. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
12.7 REPLACEMENTS OF LENDERS UNDER CERTAIN CIRCUMSTANCES.
(a) The Borrowers shall be permitted to replace any Lender that (a)
requests reimbursement for amounts owing pursuant to Section 2.10 or 5.3, (b) is
affected in the manner described in Section 2.10(a)(iii) and as a result thereof
any of the actions described in such
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Section is required to be taken or (c) becomes a Defaulting Lender, with a
replacement bank or other financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement,
(iii) the replacement bank or institution shall purchase, at par, all Revolving
Credit Loans and other amounts (other than any disputed amount) pursuant to
Section 2.10, 2.11 or 5.3, as the case may be, owing to such replaced Lender
prior to the date of replacement or as a result of such replacement, (iv) the
replacement bank or institution, if not already a Lender, and the terms and
conditions of such replacement, shall be reasonably satisfactory to the
Administrative Agent, (v) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 12.6 (provided that the
Borrowers shall be obligated to pay the registration and processing fee referred
to therein) and (vi) any such replacement shall not be deemed to be a waiver of
any rights that the Borrowers, the Administrative Agent or any other Lender
shall have against the replaced Lender.
(b) In the event that S&P or ▇▇▇▇▇'▇ shall, after the date that any Lender
with a Revolving Credit Commitment becomes a Lender, downgrade the long-term
certificate of deposit rating or long-term senior unsecured debt rating of such
Lender, and the resulting rating shall be below BBB- or Baa3 respectively, then
the Borrowers shall have the right, but not the obligation, upon notice to such
Lender and the Administrative Agent, to replace such Lender with an Assignee in
accordance with and subject to the restrictions contained in Section 12.6, and
such Lender hereby agrees to transfer and assign without recourse (in accordance
with and subject to the restrictions contained in Section 12.6) all its
interests, rights and obligations in respect of its Revolving Credit Commitment
under this Agreement to such Assignee; provided that (i) no such assignment
shall conflict with any law, regulation or order of any governmental authority
and (ii) such Assignee shall pay to such Lender in immediately available funds
on the date of such assignment the principal of and interest and fees (if any)
accrued to the date of payment on the Revolving Credit Loans made by such Lender
hereunder and all other amounts accrued for such Lender's account or owed to it
hereunder.
12.8 ADJUSTMENTS; SET-OFF.
(a) Upon termination of the Total Revolving Credit Commitment and each
Lender's Revolving Credit Commitment, the Administrative Agent shall calculate
each Lender's Revolving Credit Commitment Percentage based on such Lender's
Revolving Credit Exposure at such time. If any Lender's Revolving Credit
Commitment Percentage calculated on such basis is greater than the ratio of such
Lender's Revolving Credit Commitment to the Total Revolving Credit Commitment
(such Lender, a "SELLING LENDER"), then each of the other Lenders Revolving
Credit Commitment Percentage calculated on the basis of Revolving Credit
Exposure is less than such other Lender's Revolving Credit Commitment Percentage
calculated on the basis of its Revolving Credit Commitment (each such other
Lender, a "PURCHASING LENDER") shall purchase for cash from the Selling Lender,
without recourse or representation or warranty (other than as to ownership and
no Liens or claims by any Person), an interest in the Revolving Credit Exposure
of the Selling Lender at par in such amount as would result in a pro rata
participation (based on Revolving Credit Commitments) by each Lender, in the
aggregate Revolving Credit Exposure of all the Lenders. The Administrative
Agent, upon consultation with the applicable Lenders, shall have the power to
settle any documentation required to evidence any such purchase and, if deemed
advisable by the Administrative Agent, to execute
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any document as attorney for any Lender in order to complete any such purchase.
Each Borrower acknowledges that the foregoing arrangements are to be settled by
the Lenders among themselves, and each Borrower expressly consents to the
foregoing arrangements among the Lenders. The Administrative Agent shall
recalculate each Lender's Revolving Credit Commitment Percentage from time to
time after termination of the Total Revolving Credit Commitment and each
Lender's Revolving Credit Commitment on the basis hereinbefore provided and the
Lenders shall adjust their respective Revolving Credit Commitment Percentages
from time to time in accordance with this Section 12.8(a) as may be required.
(b) After the occurrence and during the continuance of an Event of Default
with respect to a Borrower, in addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right, without prior notice
to such Borrower, any such notice being expressly waived by both Borrowers to
the extent permitted by applicable law, upon any amount becoming due and payable
by such Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of such Borrower. Each Lender agrees
promptly to notify the such Borrower and the Administrative Agent after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application.
(c) If any Finance Party shall obtain any payment or other recovery
(whether voluntary, involuntary, by application of setoff or otherwise) on
account of any Credit Event (other than pursuant to the terms of Section 2.10,
2.11 or 5.3) in excess of its pro rata share of payments obtained by all Finance
Parties, such Finance Party shall purchase from the other Finance Parties such
participations in Credit Events made by them as shall be necessary to cause such
purchasing Finance Party to share the excess payment or other recovery ratably
(to the extent such other Finance Parties were entitled to receive a portion of
such payment or recovery) with each of them; provided that if all or any portion
of the excess payment or other recovery is thereafter recovered from such
purchasing Finance Party, the purchase shall be rescinded and each Finance Party
which has sold a participation to the purchasing Finance Party shall repay to
the purchasing Finance Party the purchase price to the ratable extent of such
recovery together with an amount equal to such selling Finance Party's ratable
share (according to the proportion of (a) the amount of such selling Finance
Party's required repayment to the purchasing Finance Party to (b) total amount
so recovered from the purchasing Finance Party) of any interest or other amount
paid or payable by the purchasing Finance Party in respect of the total amount
so recovered. Each Borrower agrees that any Finance Party purchasing a
participation from another Finance Party pursuant to this Section may, to the
fullest extent permitted by law, exercise all its rights of payment (including
pursuant to clause (b) above) with respect to such participation as fully as if
such Finance Party were the direct creditor of such Borrower in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law any Finance Party receives a secured claim in lieu of a setoff to
which this Section applies, such Finance Party shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section to share in the benefits
of any recovery on such secured claim.
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12.9 MARSHALLING; PAYMENTS SET ASIDE.
Neither the Administrative Agent nor any Lender shall be under any
obligation to marshal any assets in favor of a Borrower or any other party or
against or in payment of any or all of a Borrower's obligations hereunder. To
the extent that a Borrower makes a payment or payments to the Administrative
Agent, any Letter of Credit Issuer or Lenders (or to the Administrative Agent
for the benefit of Lenders), or the Administrative Agent, any Letter of Credit
Issuer or Lenders enforce any security interests or exercise their rights of
setoff, and such payment or payments or the proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, any other provincial,
state or federal law, common law or any equitable cause, then, to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied, and all Liens, rights and remedies therefor or related thereto, shall
be revived and continued in full force and effect as if such payment or payments
had not been made or such enforcement or setoff had not occurred.
12.10 COUNTERPARTS.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by facsimile
transmission), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with each Borrower and the
Administrative Agent.
12.11 SEVERABILITY.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12.12 INTEGRATION.
This Agreement represents the agreement of each Borrower, the
Administrative Agent and the Lenders with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein.
12.13 GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK AND THE LAWS OF THE UNITED STATES APPLICABLE THEREIN
(EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE WHICH MIGHT REFER SUCH
CONSTRUCTION TO THE LAWS OF ANOTHER JURISDICTION).
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12.14 SUBMISSION TO JURISDICTION; WAIVERS.
Each Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected in accordance with the local rules of civil procedure or by
mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to it at its location
set forth in Section 12.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section 12.14 any special, exemplary, punitive or consequential
damages.
12.15 ACKNOWLEDGEMENTS.
Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement;
(b) neither the Administrative Agent nor any Lender (in any capacity)
has any fiduciary relationship with or duty to it arising out of or in
connection with this Agreement, and the relationship between Administrative
Agent and Lenders, on one hand, and such Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or otherwise exists by virtue
of the transactions contemplated hereby among the Lenders or among either
Borrower and the Lenders.
12.16 WAIVERS OF JURY TRIAL.
EACH BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
68
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
12.17 CONFIDENTIALITY.
The Administrative Agent and each Lender shall hold all non-public
information furnished by or on behalf of a Borrower in connection with such
Lender's evaluation of whether to become a Lender hereunder or obtained by such
Lender or the Administrative Agent pursuant to the requirements of this
Agreement ("CONFIDENTIAL INFORMATION"), in accordance with its customary
procedure for handling confidential information of this nature and (in the case
of a Lender that is a bank) in accordance with safe and sound banking practices
and in any event may make disclosure as required or requested by any
Governmental Authority, representatives thereof or any nationally recognized
rating agency that requires access to information about such Lender's investment
portfolio in connection with ratings issued with respect to such Lender or
pursuant to legal process or to such Lender's or the Administrative Agent's
lawyers, professional advisors or independent auditors or Affiliates; provided
that, unless specifically prohibited by applicable law or court order, each
Lender and the Administrative Agent shall notify the relevant Borrower of any
request by any governmental agency or representative thereof (other than any
such request in connection with an examination of the financial condition or
regulatory compliance of such Lender by such Governmental Authority or in
connection with ratings by such rating agency with respect to such Lender) for
disclosure of any such non-public information prior to disclosure of such
information, and provided further that in no event shall any Lender or the
Administrative Agent be obligated or required to return any materials furnished
by a Borrower or any Subsidiary of a Borrower. Each Lender and the
Administrative Agent agrees that it will not provide to prospective Transferees
or to prospective direct or indirect contractual counterparties in swap
agreements to be entered into in connection with Revolving Credit Loans made
hereunder any of the Confidential Information unless such Person shall have
previously executed a Confidentiality Agreement substantially in the form
prescribed from time to time by the Loan Sales and Trading Association.
12.18 TREATMENT OF REVOLVING CREDIT LOANS.
(a) Neither Borrower intends to treat the Revolving Credit Loans and
related transactions as being a "reportable transaction" (within the meaning of
Treasury Regulation Section 1.6011-4). In the event a Borrower determines to
take any action inconsistent with such intention, it will promptly notify the
Administrative Agent thereof.
(b) Each Borrower acknowledges that the Administrative Agent and one or
more of the Lenders may treat its Revolving Credit Loans as part of a
transaction that is subject to Treasury Regulation Section 1.6011-4 or Section
301.6112-1, and the Administrative Agent and such Lender or Lenders, as
applicable, may file such IRS forms or maintain such lists and other records as
they may determine is required by such Treasury Regulations.
[Remainder of page intentionally left blank]
69
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Agreement to be duly executed and delivered as of the date first above
written.
INTERNATIONAL TRANSMISSION COMPANY,
as the Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President - Finance
and Chief Financial Officer
MICHIGAN ELECTRIC TRANSMISSION
COMPANY, LLC,
as the Borrower
Michigan Transco Holdings, Limited
Partnership, as Sole Member
By: METC GP Holdings II, LLC, its
general partner
By: METC GP Holdings, Inc., its
sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President - Finance
and Chief Financial Officer
JPMORGAN CHASE BANK, N.A.,
as the Administrative Agent and Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[Signature page to ITC/METC Credit Agreement]
▇▇▇▇▇▇ BROTHERS BANK, FSB,
as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
[Signature page to ITC/METC Credit Agreement]
CREDIT SUISSE,
CAYMAN ISLANDS BRANCH,
as Lender
By: /s/ ▇▇▇▇▇ ▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
[Signature page to ITC/METC Credit Agreement]
THE BANK OF NEW YORK,
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: VP
[Signature page to ITC/METC Credit Agreement]
COMERICA BANK,
as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
[Signature page to ITC Holdings Credit Agreement]
BANK OF AMERICA, N.A.,
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[Signature page to ITC/METC Credit Agreement]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK,
as Lender
By: /s/ ▇▇▇▇▇▇ Twengs
------------------------------------
Name: ▇▇▇▇▇▇ Twengs
Title: Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank
[Signature page to ITC/METC Credit Agreement]
SCHEDULE I
COMMITMENTS
REVOLVING REVOLVING CREDIT
CREDIT COMMITMENT
LENDER ADDRESS FOR NOTICES COMMITMENT PERCENTAGE
------ ----------------------------------- --------------- ----------------
JPMorgan Chase Bank, N.A. JPMorgan Chase Bank, N.A. $ 25,886,792.45 18.49%
Loan Operations
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to (except in the case of
notices relating to borrowings,
continuations, conversions and
letters of credit):
JPMorgan Chase Bank, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
Mail Code ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President, Mid-
Corporate Power Credit
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Comerica Bank Comerica $ 22,188,679.25 15.85%
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (313) 222-951
Credit Suisse, Cayman Credit Suisse, Cayman Islands $ 22,188,679.25 15.85%
Islands Branch Branch
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: Loan Closers
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Brothers Bank, FSB ▇▇▇▇▇▇ Brothers $ 22,188,679.25 15.85%
Deal Closing & Servicing
Department
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of America, N.A. Bank of America, N.A. $ 15,849,056.60 11.32%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of New York The Bank of New York $ 15,849,056.60 11.32%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank $ 15,849,056.60 11.32%
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇
▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Total amount $140,000,000.00 100%
SCHEDULE II
ENVIRONMENTAL MATTERS
NONE
SCHEDULE III
PENSION AND WELFARE MATTERS
NONE
SCHEDULE IV
OUTSTANDING LIENS ON CLOSING DATE
NONE