<PAGE>
Exhibit 10.58
EXECUTION COUNTERPART
REVOLVING CREDIT AGREEMENT,
DATED AS OF MARCH 29, 2007,
ITC HOLDINGS CORP.,
AS THE BORROWER,
VARIOUS FINANCIAL INSTITUTIONS AND OTHER
PERSONS FROM TIME TO TIME PARTIES HERETO,
AS THE LENDERS,
JPMORGAN CHASE BANK, N.A.
AS THE ADMINISTRATIVE AGENT,
J.P. MORGAN SECURITIES INC.
AS SOLE LEAD ARRANGER AND SOLE BOOKRUNNER
COMERICA BANK
CREDIT SUISSE, CAYMAN ISLANDS BRANCH
LEHMAN BROTHERS BANK, FSB
AS CO-SYNDICATION AGENTS
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<TABLE>
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ARTICLE 1
DEFINITIONS......................................................
6
1.1 Defined
Terms.....................................................
6
1.2 Accounting Terms;
GAAP............................................ 19
ARTICLE 2 AMOUNT AND TERMS OF
CREDIT....................................... 20
2.1
Commitments.......................................................
20
2.2 Minimum Amount of Each
Borrowing; Maximum Number of Borrowings.... 20
2.3 Notice of
Borrowing...............................................
20
2.4 Disbursement of
Funds............................................. 21
2.5 Repayment of Loans; Evidence
of Debt.............................. 22
2.6 Changes in Type of Revolving
Credit Loan.......................... 23
2.7 Pro Rata
Borrowings...............................................
24
2.8 Interest and
Fees................................................. 24
2.9 LIBOR
Periods.....................................................
25
2.10
Increased Costs,
Illegality, etc.................................. 26
2.11
Compensation......................................................
28
2.12
Change of Lending
Office.......................................... 28
2.13
Notice of Certain
Costs........................................... 28
2.14
Extension of
Commitment Termination Date.......................... 29
ARTICLE 3 LETTERS OF
CREDIT................................................ 30
3.1 Letters of
Credit.................................................
30
3.2 Letter of Credit Requests
and Information to Administrative
Agent.............................................................
31
3.3 Letter of Credit
Participations................................... 31
3.4 Agreement to Repay Letter of
Credit Drawings...................... 33
3.5 Increased
Costs...................................................
34
3.6 Successor Letter of Credit
Issuer................................. 35
ARTICLE 4 FEES;
COMMITMENTS................................................
35
4.1
Fees..............................................................
35
4.2 Voluntary Reduction of
Revolving Credit Commitments............... 37
4.3 Commitment
Increases..............................................
37
4.4 Mandatory Termination of
Commitments.............................. 39
ARTICLE 5
PAYMENTS.........................................................
39
5.1
Prepayments.......................................................
39
5.2 Method and Place of
Payment....................................... 39
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5.3 Net
Payments......................................................
40
5.4 Computations of Interest and
Fees................................. 42
ARTICLE 6 CONDITIONS
PRECEDENT............................................. 43
6.1 Conditions Precedent to
Initial Credit Event...................... 43
6.2 Conditions Precedent to All
Credit Events......................... 44
ARTICLE 7 REPRESENTATIONS AND
WARRANTIES................................... 45
7.1 Organizational
Status............................................. 45
7.2 Capacity, Power and
Authority..................................... 45
7.3 No
Violation......................................................
46
7.4
Litigation........................................................
46
7.5 Governmental
Approvals............................................ 46
7.6 True and Complete
Disclosure...................................... 46
7.7 Financial Condition;
Financial Statements......................... 47
7.8 Tax Returns and
Payments.......................................... 47
7.9 Environmental
Matters............................................. 47
7.10
Properties........................................................
47
7.11
Pension and Welfare
Plans......................................... 48
7.12
Regulations U and
X............................................... 48
7.13
Investment Company
Act............................................ 48
7.14
No Material Adverse
Change........................................ 48
7.15
Deemed Repetition of
Representations and Warranties............... 48
ARTICLE 8 AFFIRMATIVE
COVENANTS............................................ 49
8.1 Information
Covenants............................................. 49
8.2 Books, Record and
Inspections..................................... 51
8.3 Maintenance of
Insurance.......................................... 51
8.4 Payment of
Taxes..................................................
52
8.5 Organizational
Existence.......................................... 52
8.6 Compliance with Statutes,
Obligations, etc........................ 52
8.7 Good
Repair.......................................................
52
8.8 Transactions with
Affiliates...................................... 52
8.9 End of Fiscal Years; Fiscal
Quarters.............................. 53
8.10
Use of
Proceeds...................................................
53
8.11
Changes in
Business...............................................
53
</TABLE>
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<TABLE>
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<C>
ARTICLE 9 NEGATIVE
COVENANTS...............................................
53
9.1 Limitation on
Liens............................................... 53
9.2 Limitation on Fundamental
Changes................................. 55
9.3 Limitation on
Dividends........................................... 56
9.4 Debt to Capitalization
Ratio...................................... 56
9.5 Limitation on Sale-Lease
Back Transactions........................ 56
ARTICLE 10 EVENTS OF
DEFAULT............................................... 57
10.1
Payments..........................................................
57
10.2
Representations,
etc.............................................. 57
10.3
Covenants.........................................................
57
10.4
Default Under Other
Agreements.................................... 57
10.5
Bankruptcy,
etc................................................... 58
10.6
Non-ownership of
Material Subsidiaries............................ 58
10.7
Judgments.........................................................
58
10.8
Change of
Ownership...............................................
58
10.9
Pension
Plans.....................................................
59
10.10
Remedies..........................................................
59
10.11 Remedies
Cumulative...............................................
59
ARTICLE 11 THE ADMINISTRATIVE
AGENT........................................ 60
ARTICLE 12
MISCELLANEOUS...................................................
62
12.1
Amendments and
Waivers............................................ 62
12.2
Notices...........................................................
63
12.3
No Waiver; Cumulative
Remedies.................................... 64
12.4
Survival of
Representations and Warranties........................ 65
12.5
Payment of Expenses
and Taxes..................................... 65
12.6
Successors and
Assigns; Participations and Assignments............ 66
12.7
Replacements of
Lenders under Certain Circumstances............... 69
12.8
Adjustments;
Set-off.............................................. 70
12.9
Marshalling; Payments
Set Aside................................... 71
12.10
Counterparts......................................................
71
12.11
Severability......................................................
71
12.12
Integration.......................................................
72
12.13 Governing
Law.....................................................
72
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12.14 Submission
to Jurisdiction; Waivers...............................
72
12.15
Acknowledgements..................................................
73
12.16 Waivers of
Jury Trial.............................................
73
12.17
Confidentiality...................................................
73
12.18 Treatment
of Revolving Credit Loans...............................
74
</TABLE>
iv
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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
Letter of Credit Request
Exhibit D
Form of
New Lender Supplement
Exhibit E
Form of
Commitment Increase Supplement
Exhibit F
Form of
Closing Certificate
Exhibit G
Form of
Compliance Certificate
v
<PAGE>
REVOLVING CREDIT AGREEMENT, dated as of March 29, 2007, among ITC
HOLDINGS
CORP., a Michigan corporation (the "BORROWER"), 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").
The
Borrower has requested that the Lenders make senior loans to it in
an
aggregate principal amount not exceeding $125,000,000 (subject to
increase to
$150,000,000 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.
6
<PAGE>
"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" and
"COMMITMENT
FEE RATE" shall mean, for any day, the applicable rate per annum
set forth below
under the caption "Applicable Margin", "Applicable Additional
Interest Rate" or
"Commitment Fee Rate", respectively, based upon the ratings by
Moody's and S&P,
respectively, applicable on such date to the Borrower's
non-credit-enhanced long
term senior unsecured debt:
<TABLE>
<CAPTION>
Applicable
Applicable
Additional
Margin
Interest Rate
----------------
----------------
Borrower's Debt
LIBOR
LIBOR
Commitment
Rating:
Loan ABR Loan
Loan
ABR Loan
Fee
Rate
---------------
----- --------
-----
--------
----------
<S>
<C> <C>
<C> <C>
<C>
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
</TABLE>
For
purposes of this definition, (i) if the ratings established by
Moody's
and S&P shall fall within different Categories, the Applicable
Margin, the
Applicable Additional Interest Rate and the Commitment 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 and the Commitment Fee Rate
shall be
determined by reference to the Category next below the higher of
the two
Categories, (ii) if only one rating is available from either
Moody's or S&P,
then such rating shall be used to determine the applicable
Category, (iii) if
neither Moody's nor S&P shall have in effect a rating for the
Borrower's
non-credit-enhanced long term senior unsecured debt, then Category
8 above shall
apply, and (iv) if the ratings established or deemed to have been
established by
Moody's and S&P shall be changed (other than as a result of a
change in the
rating system of Moody's or S&P), such
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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 and Commitment 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 Moody's or S&P shall change, or if either such rating
agency shall
cease to be in the business of rating corporate debt obligations,
the 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 and the
Commitment
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 J.P. Morgan 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
Section
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 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
the Borrower or any other senior officer of the Borrower designated
as such in
writing to the Administrative Agent by the 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 over (b) the sum of (i) the
aggregate
principal amount of all Revolving Credit
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<PAGE>
Loans of such Lender then outstanding and (ii) that portion of such
Lender's
Letter of Credit Exposure.
"BANKRUPTCY CODE" shall have the meaning provided in Section
10.5.
"BORROWER" shall have the meaning provided in the recitals to
this
Agreement.
"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)
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.
"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 the Borrower; and/or (ii) a
majority of
the incumbent directors of the Borrower ceases to be persons who
were either (x)
directors of the Borrower 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 the
Borrower 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.
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<PAGE>
"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 4.3(d).
"COMPLIANCE CERTIFICATE" shall have the meaning provided in Section
8.1(c).
"CONFIDENTIAL INFORMATION" shall have the meaning provided in
Section
12.17.
"CONSOLIDATED CAPITALIZATION" means consolidated total assets
less
consolidated non-interest bearing current liabilities, all as shown
on the
Borrower's most recently delivered audited consolidated balance
sheet prepared
in accordance with GAAP.
"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 the
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, as of any date of
determination,
the ratio of (a) Total Debt for the relevant Test Period to (b)
Total
Capitalization 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.
"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 the
Borrower or any of its Subsidiaries (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
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<PAGE>
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.
"FINANCE PARTIES" shall mean the Administrative Agent and the
Lenders.
"FRONTING FEE" shall have the meaning provided in Section
4.1(c).
"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
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<PAGE>
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.
"HOSTILE TAKE-OVER BID" shall mean an offer to purchase a
controlling
interest in any Person by the Borrower or any of its Subsidiaries
or in which
the 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.
"HOLDINGS EXISTING CREDIT AGREEMENT" means the Revolving Credit
Agreement
dated as of March 19, 2004 (as amended, supplemented or otherwise
modified from
time to time) among the Borrower, various financial institutions
and other
persons from time to time party thereto and Canadian Imperial Bank
of Commerce
as Administrative Agent.
"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
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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 mean International Transmission Company, a Michigan
corporation
and Subsidiary of the Borrower.
"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/METC CREDIT AGREEMENT" shall mean the Revolving Credit
Agreement,
dated as of the date hereof (as amended, supplemented or otherwise
modified from
time to time), among ITC, METC, the various financial institutions
and other
Persons from time to time parties thereto and JPMCB, 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).
"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 Borrower 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
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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.
"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 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 a circumstance or condition
affecting
the business, assets, operations, properties or financial condition
of the
Borrower and its Subsidiaries taken as a whole that would
materially adversely
affect the ability of the Borrower to perform its obligations under
this
Agreement.
"MATERIAL SUBSIDIARY" shall mean, as at any date, a Subsidiary
(the
"Subject Subsidiary"), including its subsidiaries, which meet any
of the
following conditions:
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(a)
The Borrower's and its other Subsidiaries' investments in and
advances
to the Subject Subsidiary and its Subsidiaries exceeds 10% of the
total assets
of the Borrower and its Subsidiaries consolidated as of the end of
the then most
recently completed fiscal year; or
(b)
The Borrower's and its other Subsidiaries' proportionate share of
the
total assets (after intercompany eliminations) of the Subsidiary
exceeds 10% of
the total assets of the Borrower and its Subsidiaries consolidated
as of the end
of the then most recently completed fiscal year; or
(c)
The Borrower's and its other Subsidiaries' equity in the income
from
continuing operations before income taxes, extraordinary items and
cumulative
effect of a change in accounting principles of the Subject
Subsidiary and its
Subsidiaries exceeds 10% of such income of the Borrower and its
Subsidiaries
consolidated for the then most recently completed fiscal year.
"METC" means Michigan Electric Transmission Company, LLC, a
Michigan
corporation.
"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 Moody's Investors Service, Inc. or any
successor by
merger or consolidation to its business.
"NET
TANGIBLE ASSETS" means the amount shown as consolidated total
assets
on the Borrower's most recently delivered audited consolidated
balance sheet
prepared in accordance with GAAP, less the following: (i)
intangible assets
including, without limitation, such items as goodwill, trademarks,
tradenames,
patents and unamortized debt discount and expense and other
regulatory assets
carried as an asset on such balance sheet; and (ii) appropriate
adjustments, if
any, on account of minority interests.
"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.
"NOTICE OF BORROWING" shall mean a Notice of Borrowing provided
pursuant
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
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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 the
Borrower or any corporation, trade or business that is, along with
the 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 the 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 out of
pledges or deposits under workmen's compensation laws or similar
legislation and
Liens of judgments thereunder which are not currently
dischargeable, or good
faith deposits in connection with bids, tenders, contracts (other
than for the
payment of money) or leases to which the Borrower or any Subsidiary
is a party,
or deposits to secure public or statutory obligations of the
Borrower or any
Subsidiary, or deposits in connection with obtaining or
maintaining
self-insurance or to obtain the benefits of any law, regulation or
arrangement
pertaining to unemployment insurance, old age pensions, social
security or
similar matters, or deposits of cash or obligations of the United
States of
America to secure surety, appeal or customs bonds to which the
Borrower or any
Subsidiary is a party, or deposits in litigation or other
proceedings such as,
but not limited to, interpleader proceedings, and, to the extent
not securing
Indebtedness, other similar obligations incurred in the ordinary
course of
business; (d) 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 the
Borrower and its Subsidiaries taken as a whole; and (e) to the
extent not
securing Indebtedness, (i) liens arising from judgments or decrees
in
circumstances not constituting an Event of Default under Section
10.7; (ii)
ground leases in respect of real property on which facilities owned
or leased by
the Borrower or any of its Subsidiaries are located; (iii) any
interest or title
of a lessor or secured by a lessor's interest under any lease not
prohibited by
this Agreement; (iv) liens incurred by the licensing of trademarks
by the
Borrower or any of its Subsidiaries to others in the ordinary
course of
business; and (v) leases or subleases granted to others, not
interfering in any
material respect with the business of the 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).
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<PAGE>
"REGISTER" shall have the meaning provided in Section 12.6(c).
"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.
"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).
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"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 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 Service 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. Unless
otherwise
expressly provided, all references herein to a "Subsidiary" shall
mean a
Subsidiary of the Borrower.
"SUCCESSOR BORROWER" shall have the meaning provided in Section
9.1(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 Borrower then last
ended.
"TOTAL CAPITALIZATION" shall mean, as of any date of determination,
the
sum, without duplication, of (a) Total Debt and (b) the total
stockholder's
equity of the 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, (a) the
sum,
without duplication, of (i) all Indebtedness of the Borrower and
its
Subsidiaries for borrowed money outstanding on such date, (ii) all
Capitalized
Lease Obligations of the Borrower and its Subsidiaries outstanding
on such date
and (iii) all Indebtedness of the Borrower and its
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Subsidiaries of the types described in clauses (b) and (d) of the
definition of
Indebtedness (but in the case of clause (d), only to the extent
such
Indebtedness is assumed by the Borrower or any Subsidiary), all
calculated on a
consolidated basis in accordance with GAAP and to the extent
reflected as
Indebtedness on the consolidated balance sheet of the Borrower in
accordance
with GAAP minus (b) the aggregate amount of cash held by the
Borrower and its
Subsidiaries as at such date and included in the cash accounts
listed on the
consolidated balance sheet of the Borrower and its Subsidiaries and
deposited
with the Administrative Agent to the extent the use thereof for
application to
payment of Indebtedness of the Borrower and its Subsidiaries is not
prohibited
by law or any contract to which the 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
$125,000,000.
"TRANSACTIONS" shall mean the execution, delivery and performance
by the
Borrower of this Agreement, including the borrowing of the
Revolving Credit
Loans and the use of the proceeds thereof.
"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
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basis of GAAP as in effect and applied immediately before such
change shall have
become 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 the 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 the 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 and (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 the Total Revolving Credit Commitment then in effect. As
of the
Closing Date, the Total Revolving Credit Commitment will be
$125,000,000.
(b)
The Borrower shall use the Letters of Credit and the proceeds from
the
Revolving Credit Loans for general corporate purposes of the
Borrower and its
Subsidiaries; 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.
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 the 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 the 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 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
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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)
Borrowings to reimburse Unpaid Drawings shall be made upon the
notice
specified in Section 3.4(c).
(c)
Without in any way limiting the obligation of the 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 the Borrower. In each
such case the
Borrower hereby waives the right to dispute the Administrative
Agent's record of
the terms of any such telephonic notice.
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 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 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 the 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
therefor, the Administrative Agent shall promptly notify the
Borrower, and the
Borrower shall immediately pay such corresponding amount to the
Administrative
Agent. The Administrative Agent shall also be entitled to recover
from such
Lender or the Borrower, as the case may be, interest on
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such corresponding amount in respect of each day from the date
such
corresponding amount was made available by the Administrative Agent
to the
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 the
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 the 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)
The 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 and (ii) retire all other then-outstanding
Revolving
Credit Exposure, other than Letters of Credit that expire following
the
Revolving Credit Maturity Date for which the 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 the 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 Borrower to
each Lender
hereunder and (iii) the amount of any sum received by the
Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(d)
The entries made in the Register and accounts and subaccounts
maintained pursuant to paragraphs (b) and (c) of this Section
shall, to the
extent permitted by applicable law, be prima facie evidence of the
existence and
amounts of the obligations of the 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 the Borrower to repay (with
applicable
interest) the Revolving Credit Loans made to the Borrower 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 Section
2.5(b) and the Register maintained by the Administrative Agent
pursuant to
Section 12.6, the said Register shall prevail.
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(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)
The 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 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 may not
be converted
into LIBOR Loans, if a Default or Event of Default 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 may not be continued as LIBOR Loans
for an
additional LIBOR Period if a Default or Event of Default 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 if a Default or Event of Default 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 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 the Borrower to change the currency of any Borrowing.
(b)
If any Default or Event of Default is in existence at the time of
any
proposed continuation of any LIBOR Loans and the Administrative
Agent has or the
Required Lenders have determined in its or their sole discretion
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 in respect of LIBOR
Loans,
the Borrower has failed to elect a new LIBOR Period to be
applicable thereto as
provided in
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paragraph (a) above, the 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 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 for ABR
Loans plus the
ABR in effect from time to time.
(b)
The unpaid principal amount of each LIBOR Loan 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 for LIBOR
Loans plus
the relevant LIBOR.
(c)
For each day (i) on or prior to the Revolving Credit Maturity Date
on
which the Revolving Credit Exposure exceeds 50% of the Revolving
Credit
Commitments or (ii) 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, the Borrower shall pay to the
Administrative Agent
for the account of each Lender additional interest on the Revolving
Credit Loans
held by such Lender outstanding on such day at a rate per annum
equal to the
Applicable Additional Interest Rate. Accrued additional interest
will be payable
at the times specified in Section 2.8(e).
(d)
If all or a portion of (i) the principal amount of any Revolving
Credit
Loan or (ii) any interest thereon or fees payable hereunder 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
maintained as ABR Loans plus 2.00%, in each case from and including
the date of
such
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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 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 (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 an
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 5.4.
(g)
The Administrative Agent, upon determining the interest rate for
any
Borrowing of LIBOR Loans, shall promptly notify the Borrower and
the relevant
Lenders thereof. Each such determination shall, absent clearly
demonstrable
error, be final and conclusive and binding on all parties
hereto.
2.9
LIBOR PERIODS.
At
the time the 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, the 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 the 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 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
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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) the 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,
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
the 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
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shall be suspended) until such time as such Lender notifies the
Administrative
Agent, the 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 the 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 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 the
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, the
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 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 the 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 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), the 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 Borrower,
which notice
shall set forth in reasonable detail the basis
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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
any of the
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 the 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 for such LIBOR Loan 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
of LIBOR Loans
is not made as a result of a withdrawn Notice of Borrowing, (c) any
ABR Loan is
not converted into a LIBOR Loan as a result of a withdrawn Notice
of
Continuation, (d) any LIBOR Loan 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 is not made as a result of a withdrawn notice of
prepayment pursuant
to Section 5.1, the 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 Borrower, 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 Borrower or the right of any Lender provided in
Section 2.10
or 5.3.
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 to the Borrower.
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2.14
EXTENSION OF COMMITMENT TERMINATION DATE.
(a)
REQUESTS FOR EXTENSION. The Borrower may, by 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 Borrower 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 the 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 the 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 Borrower 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 not
be unreasonably withheld), each of which Additional Commitment
Lenders shall
have entered into an agreement in form and substance satisfactory
to the
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
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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:
(A) no Default or Event of Default shall have occurred and be
continuing on the date of such extension and after giving
effect
thereto; and
(B) the representations and warranties 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
LETTERS OF CREDIT.
(a)
Subject to and upon the terms and conditions herein set forth,
the
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 the 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, (i) no Letter of Credit shall be
issued
the Stated Amount of which, when added to the sum of (x) the Letter
of Credit
Outstanding at such time and (y) the aggregate principal of all
Revolving Credit
Loans then outstanding would exceed the Total Revolving Credit
Commitment then
in effect; (ii) 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; (iii) each
Letter of Credit shall be denominated in Dollars and shall provide
for drawings
thereunder to be made in Dollars; and (iv) no Letter of Credit
shall be issued
by the Letter of Credit Issuer after it has received a written
notice from the
Borrower or any Lender stating that a Default or Event of Default
has occurred
and is continuing until such time as the Letter of Credit Issuer
shall have
received a written notice of (x) rescission of such notice from the
party or
parties originally delivering such notice (provided that in the
case of any such
notice delivered by the Borrower, the Administrative Agent has not
objected to
or contested such rescission) or (y) the waiver of such Default or
Event of
Default in accordance with the provisions of Section 12.1.
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3.2
LETTER OF CREDIT REQUESTS AND INFORMATION TO ADMINISTRATIVE
AGENT.
(a)
Whenever the 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 the Borrower and
shall be in
the form of Exhibit C (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 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 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).
(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 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
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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
