<PAGE>
Exhibit 10.59
EXECUTION COUNTERPART
REVOLVING CREDIT AGREEMENT,
DATED AS OF MARCH 29, 2007,
INTERNATIONAL TRANSMISSION COMPANY
MICHIGAN ELECTRIC TRANSMISSION COMPANY, LLC
AS THE BORROWERS,
VARIOUS FINANCIAL INSTITUTIONS AND OTHER
PERSONS FROM TIME TO TIME PARTIES HERETO,
AS THE LENDERS,
JPMORGAN CHASE BANK, N.A.,
AS THE ADMINISTRATIVE AGENT
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
<PAGE>
<TABLE>
<S>
<C>
ARTICLE 1 DEFINITIONS
.................................................... 1
1.1 Defined Terms
................................................... 1
1.2 Accounting terms; GAAP
.......................................... 14
ARTICLE 2 AMOUNT AND TERMS OF CREDIT
..................................... 15
2.1 Commitments
..................................................... 15
2.2 Minimum Amount of Each
Borrowing; Maximum Number of Borrowings .. 15
2.3 Notice of Borrowing
............................................. 15
2.4 Disbursement of Funds
........................................... 16
2.5 Repayment of Loans; Evidence
of Debt ............................ 17
2.6 Changes in Type of Revolving
Credit Loan ........................ 18
2.7 Pro Rata Borrowings
............................................. 19
2.8 Interest and Fees
............................................... 19
2.9 Interest Periods
................................................ 20
2.10
Increased Costs,
Illegality, etc. ............................... 21
2.11
Compensation
.................................................... 23
2.12
Change of Lending
Office ........................................ 23
2.13
Notice of Certain
Costs ......................................... 24
2.14
Extension of
Commitment Termination Date ........................ 24
ARTICLE 3 LETTERS OF CREDIT
.............................................. 25
3.1 Generally
.......................................................
25
3.2 Letter of Credit Requests
and Information to Administrative
Agent ........................................................
26
3.3 Letter of Credit
Participations ................................. 26
3.4 Agreement to Repay Letter of
Credit Drawings .................... 28
3.5 Increased Costs
................................................. 29
3.6 Successor Letter of Credit
Issuer ............................... 30
ARTICLE 4 FEES; COMMITMENTS
.............................................. 31
4.1 Fees
............................................................
31
4.2 Voluntary Reduction of
Revolving Credit Commitments ............. 32
4.3 Commitment Increases
............................................ 32
4.4 Mandatory Termination of
Commitments ............................ 34
ARTICLE 5 PAYMENTS
.......................................................
34
5.1 Prepayments
..................................................... 34
5.2 Method and Place of Payment
..................................... 35
</TABLE>
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<TABLE>
<S>
<C>
5.3 Net Payments
.................................................... 36
5.4 Computations of Interest and
Fees ............................... 38
ARTICLE 6 CONDITIONS PRECEDENT
........................................... 39
6.1 Conditions Precedent to
Initial Credit Event .................... 39
6.2 Conditions Precedent to All
Credit Events ....................... 40
6.3 Conditions Precedent to the
Reserved METC Amount ................ 41
ARTICLE 7 REPRESENTATIONS AND WARRANTIES
................................. 41
7.1 Organizational Status
........................................... 41
7.2 Capacity, Power and
Authority ................................... 41
7.3 No Violation
.................................................... 41
7.4 Litigation
...................................................... 42
7.5 Governmental Approvals
.......................................... 42
7.6 True and Complete Disclosure
.................................... 42
7.7 Financial Condition;
Financial Statements ....................... 42
7.8 Tax Returns and Payments
........................................ 43
7.9 Environmental Matters
........................................... 43
7.10
Properties
...................................................... 43
7.11
Pension and Welfare
Plans ....................................... 44
7.12
Regulations U and X
............................................. 44
7.13
Investment Company Act
.......................................... 44
7.14
No Material Adverse
Change ...................................... 44
7.15
Deemed Repetition of
Representations and Warranties ............. 44
ARTICLE 8 AFFIRMATIVE COVENANTS
.......................................... 45
8.1 Information Covenants
........................................... 45
8.2 Books, Record and
Inspections ................................... 47
8.3 Maintenance of Insurance
........................................ 47
8.4 Payment of Taxes
................................................ 48
8.5 Organizational Existence
........................................ 48
8.6 Compliance with Statutes,
Obligations, etc. ..................... 48
8.7 Good Repair
..................................................... 48
8.8 Transactions with Affiliates
.................................... 48
8.9 End of Fiscal Years; Fiscal
Quarters ............................ 49
8.10
Use of Proceeds
................................................. 49
</TABLE>
ii
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<TABLE>
<S>
<C>
8.11
Changes in Business
............................................. 49
ARTICLE 9 NEGATIVE COVENANTS
............................................. 49
9.1 Limitation on Liens
............................................. 49
9.2 Limitation on Fundamental
Changes ............................... 50
9.3 Limitation on Dividends
......................................... 51
9.4 Debt to Capitalization Ratio
.................................... 51
9.5 Limitation on Sale-Lease
Back Transactions ...................... 52
ARTICLE 10 EVENTS OF DEFAULT
............................................. 52
10.1
Payments
........................................................
52
10.2
Representations, etc.
........................................... 52
10.3
Covenants
.......................................................
52
10.4
Default Under Other
Agreements .................................. 53
10.5
Bankruptcy, etc.
................................................ 53
10.6
Judgments
.......................................................
54
10.7
Change of Ownership
............................................. 54
10.8
Pension Plans
................................................... 54
10.9
Remedies
........................................................
54
10.10 Remedies
Cumulative .............................................
55
ARTICLE 11 THE ADMINISTRATIVE AGENT
...................................... 55
ARTICLE 12 MISCELLANEOUS
................................................. 57
12.1
Amendments and Waivers
.......................................... 57
12.2
Notices
.........................................................
58
12.3
No Waiver; Cumulative
Remedies .................................. 60
12.4
Survival of
Representations and Warranties ...................... 60
12.5
Payment of Expenses
and Taxes ................................... 60
12.6
Successors and
Assigns; Participations and Assignments .......... 62
12.7
Replacements of
Lenders under Certain Circumstances ............. 64
12.8
Adjustments; Set-off
............................................ 65
12.9
Marshalling; Payments
Set Aside ................................. 67
12.10
Counterparts ....................................................
67
12.11
Severability ....................................................
67
12.12
Integration .....................................................
67
12.13 Governing
Law ...................................................
67
</TABLE>
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<TABLE>
<S>
<C>
12.14 Submission
to Jurisdiction; Waivers ............................. 68
12.15
Acknowledgements ................................................
68
12.16 Waivers of
Jury Trial ........................................... 68
12.17
Confidentiality .................................................
69
12.18 Treatment
of Revolving Credit Loans .............................
69
</TABLE>
iv
<PAGE>
SCHEDULES:
Schedule I
Commitments
Schedule II
Environmental
Matters
Schedule III
Pension and Welfare Matters
Schedule IV
Outstanding Liens on
Closing Date
EXHIBITS:
Exhibit A Form
of Notice of Borrowing
Exhibit B Form
of Notice of Continuation
Exhibit C Form
of Closing Certificate
Exhibit D Form
of New Lender Supplement
Exhibit E Form
of Commitment Increase Supplement
Exhibit F Form
of Compliance Certificate
Exhibit G Form
of Letter of Credit Request
v
<PAGE>
REVOLVING CREDIT AGREEMENT, dated as of March 29, 2007, among
INTERNATIONAL
TRANSMISSION COMPANY, a Michigan corporation ("ITC"), MICHIGAN
ELECTRIC
TRANSMISSION COMPANY, LLC, a Michigan limited liability company
("METC"),
various financial institutions and other Persons from time to time
parties
hereto as lenders (each a "LENDER" and, collectively, the
"LENDERS") and
JPMORGAN CHASE BANK, N.A. ("JPMCB"), as administrative agent (in
such capacity,
the "ADMINISTRATIVE AGENT").
ITC
and METC have requested that the Lenders make senior loans to them
in
an aggregate principal amount not exceeding $140,000,000 (subject
to increase to
$190,000,000 as provided herein) at any one time outstanding. The
Lenders are
prepared to make such loans upon the terms and conditions hereof,
and,
accordingly, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
As
used herein, the following terms shall have the meanings specified
in
this Article 1 unless the context otherwise requires (it being
understood that
defined terms in this Agreement shall include in the singular
number the plural
and in the plural the singular):
1.1
DEFINED TERMS.
"ABR" shall mean, for any day, a rate per annum equal to the
greater of (a)
the rate of interest (however designated) established by the
Administrative
Agent as its prime rate in effect at its principal office in New
York, New York
and (b) the Federal Funds Effective Rate in effect on such day plus
0.5%. Any
change in the ABR due to a change in any of the foregoing rates
shall be
effective as of the opening of business on the effective date of
such change in
such rate.
"ABR
LOAN" shall mean each Loan bearing interest at the rate provided
in
Section 2.8(a).
"ADMINISTRATIVE AGENT" shall have the meaning provided in the
preamble to
this Agreement and shall include such other financial institution
as may be
appointed as the successor administrative agent in the manner and
to the extent
described in Section 11.9.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" shall mean, with respect to any Person, (a) any other
Person
directly or indirectly controlling, controlled by, or under direct
or indirect
common control with such Person, and (b) any other Person in which
such Person
directly or indirectly through Subsidiaries has a 10% or greater
equity
interest. A Person shall be deemed to control a Person if such
Person possesses,
directly or indirectly, the power (i) to vote 10% or more of the
Voting Stock
having ordinary voting power for the election of directors (or the
equivalent)
of such other Person or (ii) to direct or cause the direction of
the management
and policies of such other Person, whether through the ownership of
Capital
Stock, by contract or otherwise.
"AGREEMENT" shall mean this Revolving Credit Agreement, as the same
may be
amended, modified, supplemented, restated or replaced from time to
time.
<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",
"COMMITMENT FEE
RATE" and "TICKING FEE RATE" shall mean, with respect to either
Borrower, for
any day, the applicable rate per annum set forth below under the
caption
"Applicable Margin", "Applicable Additional Interest Rate",
"Commitment Fee
Rate/Ticking Fee Rate", respectively, based upon the ratings by
Moody's and S&P,
respectively, applicable on such date to such Borrower's
non-credit-enhanced
long term senior unsecured debt:
<TABLE>
<CAPTION>
Applicable
Additional
Applicable
Interest
Margin
Rate
Commitment
---------------------------
Fee
Borrower's Debt
LIBOR ABR
LIBOR
ABR
Rate/Ticking
Rating:
Loan Loan
Loan
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 no non-credit-enhanced long
term
senior unsecured debt rating is available, the Applicable Margin,
the Applicable
Additional Interest Rate, the Commitment Fee Rate and the Ticking
Fee Rate shall
be determined by reference to the Category next below the relevant
Borrower's
long term senior secured debt rating, (ii) if the ratings
established by Moody's
and S&P shall fall within different Categories, the Applicable
Margin, the
Applicable Additional Interest Rate, the Commitment Fee Rate and
the Ticking Fee
Rate shall be based on the higher of the two ratings unless one of
the two
ratings is two or more Categories lower than the other, in which
case the
Applicable Margin, the Applicable Additional Interest Rate, the
Commitment Fee
Rate and the Ticking Fee Rate shall be determined by reference to
the Category
next below the higher of the two Categories, (iii) if only one
rating is
2
<PAGE>
available from either Moody's or S&P, then such rating shall be
used to
determine the applicable Category, (iv) if neither Moody's nor
S&P shall have in
effect a rating for the relevant Borrower's non-credit-enhanced
long term senior
unsecured debt and no rating for such Borrower's long term senior
secured debt,
then Category 8 above shall apply to the relevant Borrower, and (v)
if the
ratings established or deemed to have been established by 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 change shall be effective as of the date on which
it is first
announced by the applicable rating agency. Each change in the
Applicable Margin,
Applicable Additional Interest Rate, the Commitment Fee Rate and
the Ticking Fee
Rate shall apply during the period commencing on the effective date
of such
change and ending on the date immediately preceding the effective
date of the
next such change. If the rating system of 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, each Borrower and the Lenders shall negotiate in
good faith to
amend this definition to reflect such changed rating system or
the
unavailability of ratings from such rating agency and, pending the
effectiveness
of any such amendment, the Applicable Margin, the Applicable
Additional Interest
Rate, the Commitment Fee Rate and the Ticking Fee Rate shall be
determined by
reference to the rating most recently in effect prior to such
change or
cessation.
"APPROVED FUND" shall mean any Person (other than a natural person)
that is
or will be engaged in making, purchasing, holding or otherwise
investing in
commercial loans and similar extensions of credit in the ordinary
course of its
business and that is administered or managed by a Lender, an
Affiliate of a
Lender or an entity or an Affiliate of an entity that administers
or manages a
Lender.
"ARRANGER" shall mean 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
12.6(a)(ii).
"ATTRIBUTABLE VALUE" means, with respect to any Sale and
Leaseback
Transaction, as of the time of determination, the lesser of (i) the
sale price
of the property or assets so leased multiplied by a fraction the
numerator of
which is the remaining portion of the base term of the lease
included in such
Sale and Leaseback Transaction and the denominator of which is the
base term of
such lease, and (ii) the total obligation (discounted to present
value at the
rate of interest specified by the terms of such lease) of the
lessee for rental
payments (other than amounts required to be paid on account of
property taxes as
well as maintenance, repairs, insurance, water rates and other
items which do
not constitute payments for property rights) during the remaining
portion of the
base term of the lease included in such Sale and Leaseback
Transaction.
"AUTHORIZED OFFICER" shall mean, with respect to either Borrower,
the Chief
Executive Officer, the President, any Executive Vice-President, any
Senior
Executive Vice President, any Senior Vice-President, the Chief
Financial
Officer, the Treasurer or General Counsel of such
3
<PAGE>
Borrower or any other senior officer of such Borrower designated as
such in
writing to the Administrative Agent by such Borrower.
"AVAILABLE REVOLVING CREDIT COMMITMENT" shall mean, with respect to
any
Lender, an amount equal to the excess, if any, of (a) the amount of
such
Lender's Revolving Credit Commitment under either Availability
Limit over (b)
the sum of (i) the aggregate principal amount of all Revolving
Credit Loans of
such Lender then outstanding under such Availability Limit and (ii)
that portion
of such Lender's Letter of Credit Exposure under such Availability
Limit.
"AVAILABILITY LIMIT" shall mean the ITC Availability Limit or the
METC
Availability Limit, as applicable.
"BANKRUPTCY CODE" shall have the meaning provided in Section
10.5.
"BORROWERS" shall mean ITC and METC.
"BORROWING" shall mean the incurrence of one Type of Revolving
Credit Loan
on a given date (or resulting from conversions or continuations on
a given
date), by a particular Borrower and having, in the case of LIBOR
Loans, the same
LIBOR Period (provided that ABR Loans incurred pursuant to Section
2.10(b) shall
be considered part of any related Borrowing of LIBOR Loans).
"BUSINESS" shall have the meaning provided in Section 8.11.
"BUSINESS DAY" shall mean (a) for all purposes other than as
covered by
clause (b) below, any day excluding Saturday, Sunday and any day
that shall be
in the City of New York a legal holiday or a day on which banking
institutions
are authorized or required by law or other governmental actions to
close, and
(b) with respect to all notices and determinations in connection
with, and
payments of principal and interest on, LIBOR Loans, any day that is
a Business
Day described in clause (a) excluding any day that shall be in the
City of
London a legal holiday or a day on which banking institutions are
authorized or
required by law or other governmental actions to close.
"CAPITAL LEASE", as applied to any Person, shall mean any lease of
any
property (whether real, personal or mixed) by that Person as lessee
that, in
conformity with GAAP, is, or is required to be, accounted for as a
finance lease
obligation on the balance sheet of that Person.
"CAPITAL STOCK" shall mean common shares, preferred shares or
other
equivalent equity interests (howsoever designated) of capital stock
of a
corporation, equity preferred or common interests or membership
interests in a
limited liability company, limited or general partnership interests
in a
partnership or any other equivalent of such ownership interest.
"CAPITALIZED LEASE OBLIGATIONS" shall mean, as applied to any
Person, all
obligations under Capital Leases of such Person and its
Subsidiaries, in each
case taken at the amount thereof accounted for as liabilities in
accordance with
GAAP.
4
<PAGE>
"CHANGE OF OWNERSHIP" shall mean and be deemed to have occurred if
(i) any
person or group (within the meaning of the Securities and Exchange
Act of 1934,
as amended, and the rules of the Securities and Exchange Commission
thereunder)
shall become, directly or indirectly, the beneficial owner of
capital stock
representing more than 35% of the ordinary voting power represented
by the
issued and outstanding Voting Stock of Holdco; and/or (ii) (A) with
respect to
ITC, Holdco ceases to own, directly or indirectly, 100% of the
Voting Stock of
ITC, and (B) with respect to METC, Holdco ceases to own, directly
or indirectly,
100% of the Voting Stock of METC; and/or (iii) a majority of the
incumbent
directors of Holdco cease to be persons who were either (x)
directors of Holdco
on the Closing Date or (y) new directors (such persons being called
herein "New
Members") appointed or nominated for election by one or more
persons who were
members of the board of directors of Holdco on the Closing Date or
who were
appointed or nominated by one or more such New Members whether or
not they were
members on the Closing Date.
"CLOSING DATE" shall mean March 29, 2007.
"CODE" shall mean the Internal Revenue Code of 1986, and the
regulations
thereunder, in each case as amended, reformed or otherwise modified
from time to
time.
"COMMITMENT FEE RATE" shall have the meaning given to that term in
the
definition of "Applicable Margin".
"COMMITMENT INCREASE SUPPLEMENT" shall have the meaning provided
for in
Section 3.3(d).
"COMPLIANCE CERTIFICATE" shall have the meaning provided in Section
8.1(c).
"CONFIDENTIAL INFORMATION" shall have the meaning provided in
Section
12.17.
"CONTROL", "CONTROLS" and "CONTROLLED", when used with respect to
any
Person, shall mean the power to direct the management and policies
of such
Person, directly or indirectly, whether through ownership of Voting
Stock, by
contract or otherwise.
"CONTROLLED GROUP" shall mean all members of a controlled group
of
corporations and all members of a controlled group of trades or
businesses
(whether or not incorporated) under common control which, together
with either
Borrower, are treated as a single employer under Section 414(b) or
414(c) of the
Code or Section 4001 of ERISA.
"CREDIT EVENT" shall mean and include the making (but not the
conversion or
continuation) of a Revolving Credit Loan and the issuance,
extension or increase
of a Letter of Credit.
"DEBT TO CAPITALIZATION RATIO" shall mean, with respect to either
Borrower,
as of any date of determination, the ratio of (a) Total Debt for
such Borrower
for the relevant Test Period to (b) Total Capitalization for such
Borrower for
such Test Period.
"DEFAULT" shall mean any event, act or condition that with notice
or lapse
of time, or both, would constitute an Event of Default.
5
<PAGE>
"DEFAULTING LENDER" shall mean any Lender with respect to which a
Lender
Default is in effect.
"DOLLARS" and "$" shall mean lawful currency of the United
States.
"ENVIRONMENTAL CLAIMS" shall mean any and all administrative,
regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of
non-compliance, investigations (other than internal reports
prepared by either
Borrower or any Subsidiary of either Borrower (a) in the ordinary
course of such
Person's business or (b) as required in connection with a financing
transaction
or an acquisition or disposition of real estate) or proceedings
relating in any
way to any Environmental Law or any permit issued, or any approval
given, under
any such Environmental Law (hereinafter, "CLAIMS"), including (i)
any and all
Claims by governmental or regulatory authorities for enforcement,
cleanup,
removal, response, remedial or other actions or damages pursuant to
any
applicable Environmental Law and (ii) any and all Claims by any
third party
seeking damages, contribution, indemnification, cost recovery,
compensation or
injunctive relief resulting from Hazardous Materials or arising
from alleged
injury or threat of injury to health, safety (with respect to
Hazardous
Materials or conditions in the environment) or the environment.
"ENVIRONMENTAL LAW" shall mean any applicable federal, provincial,
state,
foreign or local statute, law, rule, regulation, ordinance, code
and rule of
common law now or hereafter in effect and in each case as amended,
and any
binding judicial or administrative interpretation thereof,
including any binding
judicial or administrative order, consent decree or judgment,
relating to the
environment, human health or safety (with respect to Hazardous
Materials or
conditions in the environment) or Hazardous Materials.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as
amended, and any successor statute thereto of similar import,
together with the
regulations thereunder, in each case as in effect from time to
time. References
to Sections of ERISA also refer to any successor Sections
thereto.
"EVENT OF DEFAULT" shall have the meaning provided in Article
10.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the
weighted
average of the per annum rates on overnight federal funds
transactions with
members of the Federal Reserve System arranged by federal funds
brokers, as
published on the next succeeding Business Day by the Federal
Reserve Bank of New
York, or, if such rate is not so published for any day that is a
Business Day,
the average of the quotations for the day of such transactions
received by the
Administrative Agent from three federal funds brokers of recognized
standing
selected by it.
"FEES" shall mean all amounts payable pursuant to, or referred to
in,
Section 4.1.
"FERC" means the United States Federal Energy Regulatory
Commission.
"FINAL RATE CASE DETERMINATION DATE" means in regard to the
proceeding in
FERC Docket No. ER06-56 to establish METC's revenue requirement and
transmission
service rates for the METC Pricing Zone under the Midwest
Independent System
Operator, Inc., ("Midwest ISO") Transmission and Energy Markets
Tariff, the
earlier of (a) FERC's acceptance or approval
6
<PAGE>
of the rates sought by METC pursuant to an order that does not
suspend or make
subject to refund such rates sought by METC; (b) FERC's acceptance
or approval
without modification or condition of a settlement agreement that
resolves all
issues in the proceeding in Docket No. ER06-56; or (c) the issuance
of a final
order by FERC with respect to such requested rates for which the
period for
rehearing has expired or the disposition of any appeals of such
order has been
completed.
"FINANCE PARTIES" shall mean the Administrative Agent and the
Lenders.
"F.R.S. BOARD" shall mean the Board of Governors of the Federal
Reserve
System or any successor thereto.
"GAAP" shall mean generally accepted accounting principles in the
United
States as in effect from time to time.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state or
other political subdivision thereof, and any entity exercising
executive,
legislative, judicial, regulatory or administrative functions of or
pertaining
to government.
"GUARANTEE OBLIGATIONS" shall mean, as to any Person, any
obligation of
such Person guaranteeing or intended to guarantee any Indebtedness
of any other
Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly,
including any obligation of such Person, whether or not contingent,
(a) to
purchase any such Indebtedness or any property constituting direct
or indirect
security therefor, (b) to advance or supply funds (i) for the
purchase or
payment of any such Indebtedness or (ii) to maintain working
capital or equity
capital of the primary obligor or otherwise to maintain the net
worth or
solvency of the primary obligor, (c) to purchase property,
securities or
services primarily for the purpose of assuring the owner of any
such
Indebtedness of the ability of the primary obligor to make payment
of such
Indebtedness or (d) otherwise to assure or hold harmless the owner
of such
Indebtedness against loss in respect thereof; provided that, the
term "Guarantee
Obligations" shall not include endorsements of instruments for
deposit or
collection in the ordinary course of business. The amount of any
Guarantee
Obligation shall be deemed to be an amount equal to the stated or
determinable
amount of the Indebtedness in respect of which such Guarantee
Obligation is made
or, if not stated or determinable, the maximum reasonably
anticipated liability
in respect thereof (assuming such Person is required to perform
thereunder) as
determined by such Person in good faith or, if the Guarantee
Obligation is
expressly limited to a specified amount, such specified amount.
"HAZARDOUS MATERIAL" shall mean (a) any petroleum or petroleum
products,
radioactive materials, friable asbestos, urea formaldehyde foam
insulation,
transformers or other equipment that contain dielectric fluid
containing
regulated levels of polychlorinated biphenyls, and radon gas; (b)
any chemicals,
materials or substances defined as or included in the definition of
"hazardous
substances", "hazardous waste", "hazardous materials", "extremely
hazardous
waste", "restricted hazardous waste", "toxic substances", "toxic
pollutants",
"contaminants", or "pollutants", or words of similar import, under
any
applicable Environmental Law; and (c) any other chemical, material
or substance,
exposure to which is prohibited, limited or regulated by any
Governmental
Authority.
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"HOSTILE TAKE-OVER BID" shall mean an offer to purchase a
controlling
interest in any Person by a Borrower or any of its Subsidiaries or
in which a
Borrower or any of its Subsidiaries is involved, in respect of
which the board
of directors (or equivalent governing body for such entity) of the
target entity
has recommended against acceptance of such offer to the target
entity's
shareholders or equity holders or which is similarly opposed or
contested.
"HOLDCO" means ITC Holdings Corp., a Michigan corporation.
"INCLUDING" and "INCLUDE" shall mean including without limiting
the
generality of any description preceding such term, and, for
purposes of this
Agreement, the parties hereto agree that the rule of ejusdem
generis shall not
be applicable to limit a general statement, which is followed by or
referable to
an enumeration of specific matters, to matters similar to the
matters
specifically mentioned.
"INDEBTEDNESS" of any Person shall mean (a) all indebtedness of
such Person
for borrowed money, (b) the deferred purchase price of assets or
services that
in accordance with GAAP would be classified as a liability on the
balance sheet
of such Person, (c) the face amount of all letters of credit issued
for the
account of such Person and, without duplication, all drafts drawn
thereunder,
(d) all Indebtedness of a second Person secured by any Lien on any
property
owned by such first Person, whether or not such Indebtedness has
been assumed,
(e) all Capitalized Lease Obligations of such Person, (f) all
existing payment
obligations of such Person under interest rate swap, cap or collar
agreements,
interest rate future or option contracts, currency swap agreements,
currency
future or option contracts and other similar agreements, (g) all
existing
payment obligations of such Person under commodity future contracts
and other
similar agreements and (h) without duplication, all Guarantee
Obligations of
such Person; provided that, Indebtedness shall not include current
payables and
accrued expenses, in each case arising in the ordinary course of
business.
"ITC" shall have the meaning provided in the recitals to this
Agreement.
"ITC
AVAILABILITY LIMIT" means, subject to Section 4.3, the portion of
the
Revolving Credit Commitments available to ITC and equal to
$80,000,000.
"ITC
FIRST MORTGAGE INDENTURE" shall mean the First Mortgage and Deed
of
Trust, dated as of July 15, 2003, between ITC and BNY Midwest Trust
Company, as
trustee thereunder, as the same may be amended, supplemented or
otherwise
modified and in effect from time to time.
"ITC
REVOLVING CREDIT AGREEMENT" shall mean the Revolving Credit
Agreement,
dated as of July 16, 2003 (as amended, supplemented or otherwise
modified from
time to time), among ITC, various financial institutions and other
Persons from
time to time parties thereto as lenders and Canadian Imperial Bank
of Commerce,
as administrative agent.
"L/C
MATURITY DATE" shall mean the date that is five Business Days prior
to
the Revolving Credit Maturity Date.
"L/C
PARTICIPANT" shall have the meaning provided in Section 3.3(a).
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<PAGE>
"L/C PARTICIPATION"
shall have the meaning provided in Section 3.3(a).
"LENDER" and "LENDERS" shall have the respective meanings provided
in the
preamble to this Agreement.
"LENDER DEFAULT" shall mean a Lender having notified the
Administrative
Agent and/or the Borrowers that it does not intend to comply with
the
obligations under Section 2.1(a) as a result of the control of such
Lender being
assumed by any regulatory authority or the appointment of a
receiver or
conservator with respect to such Lender at the direction or request
of any
regulatory agency or authority.
"LETTER OF CREDIT" shall mean each standby letter of credit issued
pursuant
to Section 3.1.
"LETTER OF CREDIT EXPOSURE" shall mean, with respect to any Lender,
the sum
of (a) the amount of any Unpaid Drawings on Letters of Credit in
respect of
which such Lender has made (or is required to have made) payments
to the Letter
of Credit Issuer pursuant to Section 3.4(a) and (b) such Lender's
Revolving
Credit Commitment Percentage of the Letter of Credit Outstanding
(excluding the
portion thereof consisting of Unpaid Drawings in respect of which
the Lenders
have made (or are required to have made) payments to the Letter of
Credit Issuer
pursuant to Section 3.4(a)).
"LETTER OF CREDIT FEE" shall have the meaning provided in Section
4.1(b).
"LETTER OF CREDIT ISSUER" shall mean JPMCB, any of its Affiliates
or any
successor thereto pursuant to Section 3.6.
"LETTER OF CREDIT OUTSTANDING" shall mean, at any time, the sum,
without
duplication, of (a) the aggregate Stated Amount of all outstanding
Letters of
Credit and (b) the aggregate amount of all Unpaid Drawings in
respect of all
Letters of Credit.
"LETTER OF CREDIT REQUEST" shall have the meaning provided in
Section 3.2.
"LIBOR" shall mean, with respect to each LIBOR Period for each
LIBOR Loan,
a rate per annum, expressed on the basis of a 360 day year, equal
to the annual
interest rate for deposits of Dollars for a maturity most nearly
comparable to
such LIBOR Period which appears on Page 3750 of the Telerate
Service (or on any
successor or substitute page of such Service, or any successor to
or substitute
for such Service, providing rate quotations comparable to those
currently
provided on such page of such Service, as determined by the
Administrative Agent
from time to time for purposes of providing quotations of interest
rates
applicable to dollar deposits in the London interbank market) as of
11:00 a.m.
(London time) on the second Business Day prior to the commencement
of such LIBOR
Period; provided that if such Service is not available on such day,
then the
interest rate at which the Administrative Agent is offered deposits
of Dollars
by leading banks in the London interbank market as of 11:00 a.m.
(London time)
on the second Business Day prior to the commencement of such LIBOR
Period, for
delivery on the first day of such LIBOR Period for the number of
days comprised
in such LIBOR Period and in an amount comparable to the amount of
such LIBOR
Loan.
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<PAGE>
"LIBOR LOAN" shall mean each Loan bearing interest at the rate
provided in
Section 2.8(b).
"LIBOR PERIOD" shall mean, with respect to a LIBOR Loan, the
interest
period selected by the relevant Borrower for such LIBOR Loan in
accordance with
Section 2.9.
"LIEN" shall mean any mortgage, pledge, security interest,
hypothecation,
assignment by way of security, lien (statutory or other) or similar
encumbrance
(including any agreement to give any of the foregoing, any
conditional sale or
other title retention agreement or any lease in the nature
thereof).
"MATERIAL ADVERSE EFFECT" shall mean, with respect to a Borrower,
a
circumstance or condition affecting the business, assets,
operations, properties
or financial condition of such Borrower and its Subsidiaries taken
as a whole
that would materially adversely affect the ability of such Borrower
to perform
its obligations under this Agreement.
"METC" shall have the meaning provided in the recitals to this
Agreement.
"METC ADDITIONAL CONDITIONS DATE" shall have the meaning provided
in
Section 4.1(a).
"METC AVAILABILITY LIMIT" means, subject to Section 3.3, the
portion of the
Revolving Credit Commitments available to METC and equal to
$60,000,000;
provided that the aggregate amount of the Revolving Credit Exposure
of all of
the Lenders to METC may not exceed $35,000,000 until such time as
the conditions
precedent to the availability of the Reserved METC Amount set forth
in Section
6.3 have been satisfied.
"METC CREDIT AGREEMENT" shall mean the $35,000,000 Credit
Agreement, dated
as of December 10, 2003 (as amended, supplemented or otherwise
modified from
time to time), among METC, the several lenders from time to time
parties
thereto, Comerica Bank, as syndication agent and JPMCB, as
administrative agent.
"METC FIRST MORTGAGE INDENTURE" means the First Mortgage Indenture,
dated
as of December 10, 2003, between METC and JPMorgan Chase Bank,
N.A., as Trustee,
as the same may be amended, supplemented or otherwise modified from
time to
time.
"MINIMUM BORROWING AMOUNT" shall mean $500,000.
"MOODY'S" shall mean Moody's Investors Service, Inc. or any
successor by
merger or consolidation to its business.
"NEW
LENDER" shall have the meaning provided in Section 4.3.
"NEW
LENDER SUPPLEMENT" shall have the meaning provided in Section
4.3.
"NON-U.S. LENDER" shall mean any Lender that is not a "United
States
person", as defined under Section 7701(a)(30) of the Code.
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<PAGE>
"NOTICE OF BORROWING" shall mean a Notice of Borrowing provided
pursuant to
Section 2.3(a), substantially in the form of Exhibit A.
"NOTICE OF CONTINUATION" shall have the meaning provided in Section
2.6(a).
"ORGANIC DOCUMENT" shall mean, relative to any Person, its
certificate of
incorporation, by-laws, certificate of partnership, partnership
agreement,
certificate of formation, limited liability agreement, operating
agreement and
all shareholder agreements, voting trusts and similar arrangements
applicable to
any of such Person's Capital Stock.
"PARTICIPANT" shall have the meaning provided in Section
12.6(a)(i).
"PENSION PLAN" shall mean a "pension plan", as such term is defined
in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other
than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA), and
to which
either Borrower or any corporation, trade or business that is,
along with such
Borrower, a member of a Controlled Group, is a contributing
employer or a
sponsor.
"PERMITTED LIENS" shall mean (a) Liens for taxes, assessments,
customs
duties or governmental charges or claims not yet due or which are
being
contested in good faith and by appropriate proceedings for which
appropriate
provisions have been established in accordance with GAAP; (b) Liens
in respect
of property or assets of a Borrower or any of its Subsidiaries
imposed by law,
such as carriers', warehousemen's and or mechanics' Liens, and
other similar
Liens arising in the ordinary course of business and Liens arising
under zoning
laws and ordinances and municipal bylaws and regulations, in each
case so long
as such Liens arise in the ordinary course of business and do not
individually
or in the aggregate have a Material Adverse Effect; (c) Liens
arising from
judgments or decrees in circumstances not constituting an Event of
Default under
Section 10.6; (d) Liens (other than those arising by Requirement of
Law that are
not permitted by clause (a) of this definition) incurred or
deposits made in
connection with workers' compensation, unemployment insurance and
other types of
social security, or to secure the performance of tenders, statutory
obligations,
surety and appeal bonds, bids, leases, government contracts,
performance and
return-of-money bonds and other similar obligations incurred in the
ordinary
course of business; (e) ground leases in respect of real property
on which
facilities owned or leased by a Borrower or any of its Subsidiaries
are located;
(f) easements, rights-of-way, restrictive covenants or agreements,
minor defects
or irregularities in title and other similar charges or
encumbrances not
interfering in any material respect with the business of either
Borrower and its
Subsidiaries taken as a whole; (g) any interest or title of a
lessor or secured
by a lessor's interest under any lease permitted by this Agreement;
(h) Liens
incurred by the licensing of trademarks by either Borrower or any
of its
Subsidiaries to others in the ordinary course of business; and (i)
leases or
subleases granted to others, not interfering in any material
respect with the
business of either Borrower and its Subsidiaries taken as a
whole.
"PERSON" shall mean any individual, partnership, joint venture,
firm,
corporation, limited liability company, association, trust or other
enterprise
or any Governmental Authority.
"REAL ESTATE" shall have the meaning provided in Section
8.1(e).
"REGISTER" shall have the meaning provided in Section 12.6(c).
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<PAGE>
"RELATED PARTIES" means, with respect to any specified Person,
such
Person's Affiliates and the respective directors, officers,
employees, agents
and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" shall mean, at any date, Lenders having or
holding more
than 50% of the Total Revolving Credit Commitment at such date
(provided that in
the case of a Defaulting Lender, for this purpose only, its
Revolving Credit
Commitment shall be deemed to be equal to the outstanding principal
amount of
all Revolving Credit Loans of such Defaulting Lender at such date)
or, if the
Revolving Credit Commitments have terminated, more than 50% of the
outstanding
principal amount of all Revolving Credit Loans and Letter of Credit
Exposure on
such date.
"REQUIREMENT OF LAW" shall mean, as to any Person, the Certificate
of
Incorporation and By-Laws or other organizational or governing
documents of such
Person, and any law, treaty, rule, regulation, guideline, policy
or
determination of an arbitrator or a court or other Governmental
Authority, in
each case applicable to or binding upon such Person or any of its
property or
assets or to which such Person or any of its property or assets is
subject and
whether or not having the force of law.
"RESERVED METC AMOUNT" means $25,000,000.
"REVOLVING CREDIT COMMITMENT" shall mean, (a) with respect to each
Lender
that is a Lender on the date hereof, the amount set forth on
Schedule I as such
Lender's "Revolving Credit Commitment", (b) in the case of any
Lender that
becomes a Lender after the date hereof by assignment, the amount
specified as
such Lender's "Revolving Credit Commitment" in the Assignment and
Acceptance
contemplated in Section 12.6 pursuant to which such Lender assumed
a portion of
the Total Revolving Credit Commitment, and (c) in the case of any
Lender that
becomes a Lender after the date hereof pursuant to Section 4.3, the
amount
specified as such Lender's "Revolving Credit Commitment" in the New
Lender
Supplement in Section 4.3 pursuant to which such Lender assumed a
Revolving
Credit Commitment, in each case as the same may be changed from
time to time
pursuant to the terms hereof (including pursuant to Sections 2.14,
4.2 and
12.6).
"REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean, at any time,
for each
Lender, the percentage obtained by dividing (a) such Lender's
Revolving Credit
Commitment by (b) the Total Revolving Credit Commitment; provided
that at any
time when the Total Revolving Credit Commitment shall have been
terminated, each
Lender's Revolving Credit Commitment Percentage shall be the
percentage obtained
by dividing (c) such Lender's Revolving Credit Exposure by (d) the
aggregate
amount of the Revolving Credit Exposures of all the Lenders.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any Lender
at any
time, the sum of (a) the aggregate principal amount of the
Revolving Credit
Loans of such Lender then outstanding and (b) such Lender's Letter
of Credit
Exposure at such time.
"REVOLVING CREDIT LOAN" shall have the meaning provided in Section
2.1(a).
"REVOLVING CREDIT MATURITY DATE" shall mean March 29, 2012 (subject
to
extension (in the case of each Lender consenting thereto) as
provided in Section
2.14), or, if earlier, the date
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<PAGE>
on which the Revolving Credit Commitments shall have terminated or
shall have
been reduced to zero.
"SALE AND LEASEBACK TRANSACTION" shall have the meaning provided in
Section
9.5.
"S&P" shall mean Standard & Poor's Ratings Services or any
successor by
merger or consolidation to its business.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"STATED AMOUNT" of any Letter of Credit shall mean the maximum
amount from
time to time available to be drawn thereunder, determined without
regard to
whether any conditions to drawing could then be met.
"SUBSIDIARY" of any Person shall mean and include (a) any
corporation more
than 50% of whose stock of any class or classes having by the terms
thereof
ordinary voting power to elect a majority of the directors of such
corporation
(irrespective of whether or not at the time stock or issued share
capital of any
class or classes of such corporation shall have or might have
voting power by
reason of the happening of any, contingency) is at the time owned
by such Person
directly or indirectly through Subsidiaries and (b) any
partnership,
association, joint venture or other entity in which such Person
directly or
indirectly through Subsidiaries has more than a 50% equity interest
and more
than a 50% voting interest at the time and (c) any other
corporation,
partnership, joint venture or other entity (i) the accounts of
which would be
consolidated with those of such Person in such Person's
consolidated financial
statements if such statements were prepared in accordance with GAAP
and (ii)
that is controlled (as defined in clause (b) of the definition of
such term in
the definition of the term "Affiliate") by such Person.
"SUCCESSOR BORROWER" shall have the meaning provided in Section
9.2(a).
"TAXES" shall have the meaning provided in Section 5.3(a)(i).
"TEST PERIOD" shall mean, for any determination under this
Agreement, the
four consecutive fiscal quarters of the relevant Borrower then last
ended.
"TICKING FEE RATE" shall have the meaning given to that term in
the
definition of "Applicable Margin".
"TOTAL CAPITALIZATION" shall mean, as of any date of determination,
for
either Borrower, the sum, without duplication, of (a) Total Debt of
such
Borrower and (b) the total stockholder's equity of such Borrower as
determined
in accordance with GAAP; provided that the term "Total
Capitalization" shall
exclude the non-cash effects of the March 31, 2006 FAS Statement
titled
"Employers' Accounting for Defined Pension and Postretirement
Plans".
"TOTAL DEBT" shall mean, as of any date of determination, for
either
Borrower, (a) the sum, without duplication, of (i) all Indebtedness
of such
Borrower and its Subsidiaries for borrowed money outstanding on
such date, (ii)
all Capitalized Lease Obligations of such Borrower and its
Subsidiaries
outstanding on such date and (iii) all Indebtedness of such
Borrower and its
Subsidiaries of the types described in clauses (b) and (d) of the
definition of
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Indebtedness (but in the case of clause (d), only to the extent
such
Indebtedness is assumed by such Borrower or any of its
Subsidiaries), all
calculated on a consolidated basis in accordance with GAAP and to
the extent
reflected as Indebtedness on the consolidated balance sheet of such
Borrower in
accordance with GAAP minus (b) the aggregate amount of cash held by
such
Borrower and its Subsidiaries as at such date and included in the
cash accounts
listed on the consolidated balance sheet of such Borrower and its
Subsidiaries
and deposited with the Administrative Agent to the extent the use
thereof for
application to payment of Indebtedness of such Borrower and its
Subsidiaries is
not prohibited by law or any contract to which such Borrower or any
of its
Subsidiaries is a party (but in each case excluding equity
securities that are
mandatorily redeemable 91 or more days after the Revolving Credit
Maturity Date
and that are classified as hybrid securities by Moody's and/or
S&P).
"TOTAL REVOLVING CREDIT COMMITMENT" shall mean the sum of the
Revolving
Credit Commitments of all the Lenders, which as of the Closing Date
was
$140,000,000.
"TRANSACTIONS" shall mean the execution, delivery and performance
by each
Borrower of this Agreement, the borrowing of the Revolving Credit
Loans and the
use of the proceeds thereof and requesting the issuance of Letters
of Credit
hereunder.
"TRANSFEREE" shall have the meaning provided in Section
12.6(e).
"TYPE" shall mean as to any Revolving Credit Loan, its nature as an
ABR
Loan or a LIBOR Loan.
"UNITED STATES" and "US" shall mean the United States of
America.
"UNPAID DRAWING" shall
have the meaning provided in Section 3.4(a).
"VOTING STOCK" shall mean Capital Stock of a Person which carries
voting
rights or the right to Control such Person under any circumstances;
provided
that Capital Stock which carries the right to vote or Control
conditionally upon
the happening of an event shall not be considered Voting Stock
until the
occurrence of such event and then only during the continuance of
such event.
"WELFARE PLAN" shall mean a "welfare plan", as such term is defined
in
Section 3(1) of ERISA.
1.2
ACCOUNTING TERMS; GAAP.
Except as otherwise expressly provided herein, all terms of an
accounting
or financial nature shall be construed in accordance with GAAP, as
in effect
from time to time; provided that, if the Borrower notifies the
Administrative
Agent that the Borrower requests an amendment to any provision
hereof to
eliminate the effect of any change occurring after the date hereof
in GAAP or in
the application thereof on the operation of such provision (or if
the
Administrative Agent notifies the Borrower that the Required
Lenders request an
amendment to any provision hereof for such purpose), regardless of
whether any
such notice is given before or after such change in GAAP or in the
application
thereof, then such provision shall be interpreted on the basis of
GAAP as in
effect and applied immediately before such change shall have
become
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<PAGE>
effective until such notice shall have been withdrawn or such
provision amended
in accordance herewith.
ARTICLE 2
AMOUNT AND TERMS OF CREDIT
2.1
COMMITMENTS.
(a)
Subject to and upon the terms and conditions herein set forth,
each
Lender severally agrees to make a loan or loans (each a "REVOLVING
CREDIT LOAN"
and, collectively, the "REVOLVING CREDIT LOANS") to each Borrower,
which
Revolving Credit Loans (i) shall be made at any time and from time
to time on
and after the Closing Date and prior to the Revolving Credit
Maturity Date, (ii)
may, at the option of such Borrower, be incurred and maintained as,
and/or
converted into, ABR Loans or LIBOR Loans (provided that all
Revolving Credit
Loans made by each of the Lenders pursuant to the same Borrowing
shall, unless
otherwise specifically provided herein, consist entirely of
Revolving Credit
Loans of the same Type), (iii) may be repaid and reborrowed in
accordance with
the provisions hereof and shall be repaid in full on the Revolving
Credit
Maturity Date, (iv) for any such Lender at any time, shall not
result in such
Lender's Revolving Credit Exposure at such time exceeding such
Lender's
Revolving Credit Commitment at such time, (v) after giving effect
thereto and to
the application of the proceeds thereof, shall not result at any
time in the
aggregate amount of the Lenders' Revolving Credit Exposures at such
time
exceeding (A) in the case of ITC, the ITC Availability Limit, (B)
in the case of
METC, the METC Availability Limit and (C) the Total Revolving
Credit Commitment
then in effect. As of the Closing Date, the Total Revolving Credit
Commitment
will be $140,000,000.
(b)
Each Borrower shall use the proceeds from the Revolving Credit
Loans
for general corporate purposes; provided that, notwithstanding any
of the
foregoing, none of the proceeds from Revolving Credit Loans may be
used to
finance any Hostile Take-Over Bid.
(c)
The obligations of each Borrower with respect to the Revolving
Credit
Loans and Letters of Credit under this Agreement shall be several
but not joint
and neither Borrower shall be liable with respect to Revolving
Credit Loans made
to, or Letters of Credit issued at the request of, the other
Borrower under this
Agreement.
2.2
MINIMUM AMOUNT OF EACH BORROWING; MAXIMUM NUMBER OF BORROWINGS.
The
aggregate principal amount of each Borrowing of Revolving Credit
Loans
shall be in a multiple of $100,000 and shall not be less than the
Minimum
Borrowing Amount. More than one Borrowing may be incurred on any
date; provided
that at no time shall there be outstanding more than 15 Borrowings
of LIBOR
Loans under this Agreement.
2.3
NOTICE OF BORROWING.
(a)
Whenever a Borrower desires to incur Revolving Credit Loans
hereunder
(other than Borrowings to repay Unpaid Drawings), it shall give
the
Administrative Agent at an office of the Administrative Agent from
time to time
notified by the Administrative Agent to such Borrower (but
initially the office
set forth for the Administrative Agent in Section 12.2(a)(ii)), (i)
a written
Notice of Borrowing (or telephonic notice promptly confirmed in
writing) prior
to
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<PAGE>
12:00 noon (New York time) at least three Business Days prior to
the proposed
day of each Borrowing of LIBOR Loans and (ii) a written Notice of
Borrowing (or
telephonic notice promptly confirmed in writing) prior to 10:00
a.m. (New York
time) on the proposed day of each Borrowing of ABR Loans. Each such
Notice of
Borrowing, except as otherwise expressly provided in Section 2.10,
shall be
irrevocable and shall specify (i) the aggregate principal amount of
the
Revolving Credit Loans to be made pursuant to such Borrowing, (ii)
the date of
Borrowing (which shall be a Business Day), (iii) whether the
Borrowing shall
consist of ABR Loans or LIBOR Loans, (iv) if such Borrowing shall
consist of
LIBOR Loans, the LIBOR Period to be initially applicable thereto
and (v) the
number and location of the account to which funds are to be
disbursed. The
Administrative Agent shall promptly give each Lender written notice
(or
telephonic notice promptly confirmed in writing) of each proposed
Borrowing of
Revolving Credit Loans, of such Lender's proportionate share
thereof and of the
other matters covered by the related Notice of Borrowing.
(b)
Without in any way limiting the obligation of each Borrower to
confirm
in writing any notice it may give hereunder by telephone, the
Administrative
Agent may act prior to receipt of written confirmation without
liability upon
the basis of such telephonic notice believed by the Administrative
Agent in good
faith to be from an Authorized Officer of such Borrower. In each
such case the
applicable Borrower hereby waives the right to dispute the
Administrative
Agent's record of the terms of any such telephonic notice.
(c)
Borrowings to reimburse Unpaid Drawings shall be made upon the
notice
specified in Section 3.4(c).
2.4
DISBURSEMENT OF FUNDS.
(a)
No later than 12:00 Noon (New York time) on the date specified in
each
Notice of Borrowing, each Lender will make available its pro rata
portion, if
any, of each Borrowing requested to be made on such date in the
manner provided
below.
(b)
Each Lender shall make available all amounts it is to fund under
any
Borrowing in immediately available funds to the Administrative
Agent at an
office of the Administrative Agent from time to time notified by
the
Administrative Agent to the Lenders (but initially the office set
forth for the
Administrative Agent in Section 12.2(a)(ii)), and the
Administrative Agent will
(except in the case of Borrowings to repay Unpaid Drawings) make
available to
the relevant Borrower by depositing such funds as specified in the
applicable
Notice of Borrowing, the aggregate of the amounts so made
available. Unless the
Administrative Agent shall have been notified by any Lender prior
to the date of
any such Borrowing that such Lender does not intend to make
available to the
Administrative Agent its portion of the Borrowing or Borrowings to
be made on
such date, the Administrative Agent may assume that such Lender has
made such
amount available to the Administrative Agent on such date of
Borrowing, and the
Administrative Agent, in reliance upon such assumption, may (in its
sole
discretion and without any obligation to do so) make available to
the applicable
Borrower a corresponding amount. If such corresponding amount is
not in fact
made available to the Administrative Agent by such Lender and the
Administrative
Agent has made available same to such Borrower, the Administrative
Agent shall
be entitled to recover such corresponding amount from such Lender.
If such
Lender does not pay such corresponding amount forthwith upon the
Administrative
Agent's demand
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therefor, the Administrative Agent shall promptly notify such
Borrower, and such
Borrower shall immediately pay such corresponding amount to the
Administrative
Agent. The Administrative Agent shall also be entitled to recover
from such
Lender or Borrower, as the case may be, interest on such
corresponding amount in
respect of each day from the date such corresponding amount was
made available
by the Administrative Agent to such Borrower to the date such
corresponding
amount is recovered by the Administrative Agent, at a rate per
annum equal to
(i) if paid by such Lender, at the Federal Funds Effective Rate or
(ii) if paid
by a Borrower, the then-applicable rate of interest, calculated in
accordance
with Section 2.8, for the respective Revolving Credit Loans.
(c)
Nothing in this Section 2.4 shall be deemed to relieve any Lender
from
its obligation to fulfill its commitments hereunder or to prejudice
any rights
that a Borrower may have against any Lender as a result of any
default by such
Lender hereunder (it being understood, however, that no Lender
shall be
responsible for the failure of any other Lender to fulfill its
commitments
hereunder).
2.5
REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a)
Each Borrower shall, for the benefit of the Lenders, on the
Revolving
Credit Maturity Date, (i) repay to the Administrative Agent the
then-unpaid
Revolving Credit Loans made to such Borrower and (ii) retire all
other
then-outstanding Revolving Credit Exposure of such Borrower, other
than Letters
of Credit that expire following the Revolving Credit Maturity Date
for which
such Borrower provides or has provided cash collateral in an amount
equal to the
Stated Amount of such Letter of Credit.
(b)
Each Lender shall maintain in accordance with its usual practice
an
account or accounts evidencing the Indebtedness of each Borrower to
the
appropriate lending office of such Lender resulting from each
Revolving Credit
Loan made by such lending office of such Lender from time to time,
including the
amounts and currency of principal and interest payable and paid to
such lending
office of such Lender from time to time under this Agreement.
(c)
The Administrative Agent shall maintain the Register pursuant
to
Section 12.6, and a sub-account for each Lender, in which Register
and
sub-accounts (taken together) shall be recorded (i) the amount of
each Revolving
Credit Loan made hereunder, the Type of each Revolving Credit Loan
made and the
LIBOR Period applicable thereto, (ii) the amount of any principal
or interest
due and payable or to become due and payable from the relevant
Borrower to each
Lender hereunder and (iii) the amount of any sum received by the
Administrative
Agent hereunder from the relevant Borrower and each Lender's share
thereof.
(d)
The entries made in the Register and accounts and subaccounts
maintained pursuant to paragraphs (c) and (d) of this Section
shall, to the
extent permitted by applicable law, be prima facie evidence of the
existence and
amounts of the obligations of each Borrower therein recorded;
provided that the
failure of any Lender or the Administrative Agent to maintain such
account, such
Register or such subaccount, as applicable, or any error therein,
shall not in
any manner affect the obligation of such Borrower to repay (with
applicable
interest) the Revolving Credit Loans made to it by such Lender in
accordance
with the terms of this Agreement. In the event that there is an
inconsistency
between the accounts maintained by a Lender pursuant to
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Section 2.5(b) and the Register maintained by the Administrative
Agent pursuant
to Section 12.6, the said Register shall prevail.
(e)
All payments to be made by the Administrative Agent to any
Lender
hereunder shall be made in accordance with the payment instructions
of such
Lender set forth on the signature page of such Lender hereunder or,
if such
Lender is an Assignee, set forth in the Assignment and Acceptance
of such
Lender.
2.6
CHANGES IN TYPE OF REVOLVING CREDIT LOAN.
(a) Each Borrower
shall have the option on any Business Day to convert all
or a portion equal to at least the Minimum Borrowing Amount of the
outstanding
principal amount of Revolving Credit Loans made to it of one Type
into a
Borrowing or Borrowings of another permitted Type or to continue
the outstanding
principal amount of any LIBOR Loans as LIBOR Loans for an
additional LIBOR
Period; provided that (i) no partial continuation of LIBOR Loans
shall reduce
the outstanding principal amount of LIBOR Loans made pursuant to a
single
Borrowing to less than the Minimum Borrowing Amount, (ii) ABR Loans
of a
Borrower may not be converted into LIBOR Loans, if a Default or
Event of Default
with respect to such Borrower is in existence on the date of the
proposed
conversion and the Administrative Agent has or the Required Lenders
have
determined in its or their sole discretion not to permit such
conversion, (iii)
LIBOR Loans of a Borrower may not be continued as LIBOR Loans for
an additional
LIBOR Period if a Default or Event of Default with respect to such
Borrower is
in existence on the date of the proposed continuation and the
Administrative
Agent has or the Required Lenders have determined in its or their
sole
discretion not to permit such continuation, (iv) no LIBOR Period in
excess of
one month may be selected for any LIBOR Loan of a Borrower if a
Default or Event
of Default with respect to such Borrower is in existence on the
date of the
proposed continuation and the Administrative Agent has or the
Required Lenders
have determined in its or their sole discretion not to permit such
longer LIBOR
Period, (v) Borrowings resulting from continuations or conversions
pursuant to
this Section 2.6 shall be limited in number as provided in Section
2.2 and (vi)
the outstanding principal amount of a Revolving Credit Loan of one
Type may not
be converted into a Borrowing of another permitted Type until the
end of the
current LIBOR Period for such Revolving Credit Loan. Each such
continuation or
conversion shall be effected by the relevant Borrower by giving
the
Administrative Agent at the location set forth in Section 12.2
prior to 12:00
Noon (New York time) at least three Business Days' prior written
notice
substantially in the form of Exhibit B (or telephonic notice
promptly confirmed
in writing) (each a "NOTICE OF CONTINUATION") specifying the
Revolving Credit
Loans to be so continued or converted, the Type of Revolving Credit
Loans to be
continued or converted into and, if such Revolving Credit Loans are
to be
converted or continued as LIBOR Loans, the LIBOR Period to be
initially
applicable thereto. The Administrative Agent shall give each Lender
notice as
promptly as practicable of any such proposed continuation or
conversion
affecting any of its Revolving Credit Loans. This Section shall not
be construed
to permit either Borrower to change the currency of any
Borrowing.
(b)
If any Default or Event of Default with respect to a Borrower is
in
existence at the time of any proposed continuation of any LIBOR
Loans of such
Borrower and the Administrative Agent has or the Required Lenders
have
determined in its or their sole discretion
18
<PAGE>
not to permit such continuation, such LIBOR Loans shall be
automatically
converted on the last day of the current LIBOR Period into ABR
Loans.
(c)
If upon the expiration of any LIBOR Period, the relevant Borrower
has
failed to elect a new LIBOR Period to be applicable thereto as
provided in
paragraph (a) above, such Borrower shall be deemed to have elected
to convert
such Borrowing of LIBOR Loans, as the case may be, into a Borrowing
of ABR
Loans, as the case may be, effective as of the expiration date of
such current
LIBOR Period.
2.7
PRO RATA BORROWINGS.
Each
Borrowing of Revolving Credit Loans under this Agreement shall be
made
by the Lenders pro rata on the basis of their then-applicable
Revolving Credit
Commitment Percentage; provided that the Administrative Agent may
adjust the
proportions of the Lenders with respect to any Borrowing to be made
by such
Lenders to ensure that no Lender's Revolving Credit Exposure (after
granting its
portion of such Borrowing) exceeds its Revolving Credit Commitment.
It is
understood that no Lender shall be responsible for any default by
any other
Lender in its obligation to make Revolving Credit Loans hereunder
and that each
Lender shall be obligated to make the Revolving Credit Loans
provided to be made
by it hereunder, regardless of the failure of any other Lender to
fulfill its
commitments hereunder.
2.8
INTEREST AND FEES.
(a)
The unpaid principal amount of each ABR Loan made to each
Borrower
shall bear interest from the date of the Borrowing thereof until
maturity
(whether by acceleration or otherwise and both before and after
default and
judgment) at a rate per annum that shall at all times be equal to
the Applicable
Margin then in effect for such Borrower for ABR Loans plus the ABR
in effect
from time to time.
(b)
The unpaid principal amount of each LIBOR Loan made to each
Borrower
shall bear interest from the date of the Borrowing thereof until
maturity
(whether by acceleration or otherwise and both before and after
default and
judgment) at a rate per annum that shall at all times be equal to
the Applicable
Margin then in effect for such Borrower for LIBOR Loans plus the
relevant LIBOR.
(c)
For each day (a) on or prior to the Revolving Credit Maturity Date
on
which the Revolving Credit Exposure with respect to either Borrower
exceeds 50%
of such Borrower's Availability Limit or (b) after the Revolving
Credit Maturity
Date on which the Revolving Credit Exposure with respect to either
Borrower
exceeds 50% of such Borrower's Availability Limit as in effect
immediately prior
to the termination or reduction to zero of such Availability Limit,
such
Borrower shall pay to the Administrative Agent for the account of
each Lender
additional interest on the Revolving Credit Loans made by such
Lender to such
Borrower that are outstanding on such day at a rate per annum equal
to the
Applicable Additional Interest Rate for such Borrower. Accrued
additional
interest will be payable in respect of each outstanding Revolving
Credit Loan on
each date on which interest is payable on such outstanding
Revolving Credit
Loan, at the times specified in Section 2.8(e) hereof.
19
<PAGE>
(d)
If all or a portion of (i) the principal amount of any Revolving
Credit
Loan made to either Borrower or (ii) any interest thereon or fees
payable
hereunder by either Borrower shall not be paid when due (whether at
the stated
maturity, by acceleration or otherwise), such overdue amount shall
bear interest
at a rate per annum that is (x) in the case of overdue principal,
equal to the
rate that would otherwise be applicable thereto plus, to the extent
permitted by
applicable law, 2.00% (after as well as before maturity and
judgment), (y) in
the case of any overdue interest with respect to any Revolving
Credit Loan,
equal to the rate of interest applicable to such Revolving Credit
Loan plus, to
the extent permitted by applicable law, 2.00%, or (z) in the case
of any overdue
fees or other amounts owing hereunder, equal to the rate of
interest then
applicable to Revolving Credit Loans made to such Borrower
maintained as ABR
Loans plus 2.00%, in each case from and including the date of such
non-payment
to but excluding the date on which such amount is paid in full
(after as well as
before maturity and judgment). All interest payable pursuant to
this Section
2.8(c) shall be payable upon demand.
(e)
Interest on each Revolving Credit Loan of each Borrower shall
accrue
from and including the date of any Borrowing to but excluding the
date of any
repayment thereof and shall, except as otherwise provided pursuant
to Section
2.8(c), be payable by such Borrower (i) in respect of each ABR
Loan, quarterly
in arrears on the last Business Day of each of March, June,
September and
December, (ii) in respect of each LIBOR Loan, on the last day of
each LIBOR
Period applicable thereto and, in the case of a LIBOR Period in
excess of three
months, on each date occurring at three-month intervals after the
first day of
such LIBOR Period, (iii) in respect of each Revolving Credit Loan
on any
prepayment (on the amount prepaid), at maturity (whether by
acceleration or
otherwise) and, after such maturity, on demand.
(f)
All computations of interest hereunder shall be made in accordance
with
Section 4.4.
(g)
The Administrative Agent, upon determining the interest rate for
any
Borrowing of LIBOR Loans, shall promptly notify the relevant
Borrower and the
Lenders thereof. Each such determination shall, absent clearly
demonstrable
error, be final and conclusive and binding on all parties
hereto.
2.9
INTEREST PERIODS.
At
the time a Borrower gives a Notice of Borrowing or Notice of
Continuation in respect of the making of, or conversion into or
continuation as,
a Borrowing of LIBOR Loans prior to 10:00 a.m. (New York time) on
the third
Business Day prior to the applicable date of making or conversion
or
continuation of such LIBOR Loans, such Borrower shall have the
right to elect by
giving the Administrative Agent written notice of (or telephonic
notice promptly
confirmed in writing) the LIBOR Period applicable to such
Borrowing, which LIBOR
Period shall, at the option of such Borrower, be one, two, three or
six months.
Notwithstanding anything to the contrary contained above:
(a) the initial LIBOR Period for any Borrowing of LIBOR Loans
shall
commence on the date of such Borrowing (including the date of
any
conversion from a Borrowing of ABR Loans) and each LIBOR Period
occurring
thereafter in respect of
20
<PAGE>
such
Borrowing shall commence on the day on which the next preceding
LIBOR
Period expires;
(b) if any LIBOR Period relating to a Borrowing of LIBOR Loans
begins
on
the last Business Day of a calendar month or begins on a day for
which
there is no numerically corresponding day in the calendar month at
the end
of
such LIBOR Period, such LIBOR Period shall end on the last Business
Day
of
the calendar month at the end of such LIBOR Period;
(c) if any LIBOR Period would otherwise expire on a day that is not
a
Business Day, such
LIBOR Period shall expire on the next succeeding
Business Day; provided that if any LIBOR Period in respect of a
LIBOR Loan
would otherwise expire on a day that is not a Business Day but is a
day of
the
month after which no further Business Day occurs in such month,
such
LIBOR Period shall expire on the next preceding Business Day;
and
(d) a Borrower shall not be entitled to elect any LIBOR Period
in
respect of any LIBOR Loan if such LIBOR Period would extend beyond
the
Revolving Credit Maturity Date.
2.10
INCREASED COSTS, ILLEGALITY, ETC.
(a)
In the event that any Lender shall have reasonably determined
(which
determination shall, absent clearly demonstrable error, be final
and conclusive
and binding upon all parties hereto):
(i) on any date for determining LIBOR for a Borrowing of LIBOR
Loans
for
any LIBOR Period that by reason of any changes arising on or after
the
date
hereof affecting the London interbank market (x) deposits in
Dollars
in
the principal amounts of the Revolving Credit Loans comprising
such
Borrowing are not readily available to such Lender in the London
interbank
market or (y) adequate and fair means do not exist for ascertaining
the
applicable interest rate on the basis provided for in the
definition of
LIBOR; or
(ii) at any time, that such Lender shall incur increased costs
or
reductions in the amounts received or receivable hereunder with
respect to
any LIBOR Loans (other than
any such increase or reduction attributable to
taxes) because of (x) any change since the date hereof in any
applicable
law,
governmental rule, regulation, guideline or order (or in the
interpretation or administration thereof and including the
introduction of
any
new law or governmental rule, regulation, guideline or order), such
as,
for
example, but not limited to, a change in official reserve
requirements
(including any reserve requirements specified under regulations
issued from
time
to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities"
as
therein defined), and/or (y) other circumstances affecting the
London
interbank market; or
(iii) at any time, that the making or continuance of any LIBOR
Loan
has
become unlawful by compliance by such Lender in good faith with
any
law,
21
<PAGE>
governmental rule, regulation, guideline or order (or would
conflict with
any
such governmental rule, regulation, guideline or order not having
the
force of law even though the failure to comply therewith would not
be
unlawful), or has become impracticable as a result of a
contingency
occurring after the date hereof that materially and adversely
affects the
London interbank market;
then, and in any such event, such Lender shall within a reasonable
time
thereafter give notice (if by telephone confirmed in writing) to
each Borrower
and to the Administrative Agent of such determination (which notice
the
Administrative Agent shall promptly transmit to each of the other
Lenders).
Thereafter (x) in the case of clause (i) above, LIBOR Loans shall
no longer be
available from such Lender (and such Lender's obligation to make
such Revolving
Credit Loans shall be suspended) until such time as such Lender
notifies the
Administrative Agent, each Borrower and the Lenders that the
circumstances
giving rise to such notice by the Administrative Agent no longer
exist (which
notice such Lender agrees to give at such time when such
circumstances no longer
exist), and any Notice of Borrowing or Notice of Continuation given
by a
Borrower with respect to LIBOR Loans that have not yet been
incurred shall be
deemed, with respect to such Lender only, to be a Notice of
Borrowing or Notice
of Continuation for ABR Loans, (y) in the case of clause (ii)
above, the
relevant Borrower shall pay to such Lender, promptly after receipt
of written
demand therefor, such additional amounts (in the form of an
increased rate of,
or a different method of calculating, interest or otherwise as such
Lender in
its reasonable discretion shall determine) as shall be required to
compensate
such Lender for such increased costs or reductions in amounts
receivable
hereunder (it being agreed that a written notice as to the
additional amounts
owed to such Lender, showing in reasonable detail the basis for the
calculation
thereof, submitted to such Borrower by such Lender shall, absent
clearly
demonstrable error, be final and conclusive and binding upon all
parties hereto)
other than any such increase or reduction attributable to taxes and
(z) in the
case of clause (iii) above, each Borrower shall take one of the
actions
specified in Section 2.10(b) as promptly as possible and, in any
event, within
the time period required by law.
(b)
At any time that any LIBOR Loan is affected by the
circumstances
described in Section 2.10(a)(ii) or 2.10(a)(iii), the relevant
Borrower may (and
in the case of a LIBOR Loan affected pursuant to Section
2.10(a)(iii) shall)
either (i) if the affected LIBOR Loan is then being made pursuant
to a Credit
Event or Borrowing by way of conversion into a LIBOR Loan, cancel
said Credit
Event or Borrowing by giving the Administrative Agent telephonic
notice
(confirmed promptly in writing) thereof on the same date that such
Borrower was
notified by a Lender pursuant to Section 2.10(a)(ii) or
2.10(a)(iii), or (ii) if
the affected LIBOR Loan is then outstanding, upon at least three
Business Days
notice to the Administrative Agent, require the affected Lender to
convert each
such LIBOR Loan into an ABR Loan; provided that if more than one
Lender is
affected at any time, then all affected Lenders must be treated in
the same
manner pursuant to this Section 2.10(b).
(c)
If, after the date hereof, the adoption of any applicable law, rule
or
regulation regarding capital adequacy, or any change therein, or
any change in
the interpretation or administration thereof by any Governmental
Authority, or
compliance by a Lender or its parent with any request or directive
made or
adopted after the date hereof regarding capital adequacy (whether
or not having
the force of law) of any such Governmental Authority, has or would
have the
effect of reducing the rate of return on such Lender's or its
parent's capital
or assets as a
22
<PAGE>
consequence of such Lender's commitments or obligations hereunder
to a level
below that which such Lender or its parent could have achieved but
for such
adoption, effectiveness, change or compliance (taking into
consideration such
Lender's or its parent's policies with respect to capital
adequacy), then from
time to time, promptly after demand by such Lender (with a copy to
the
Administrative Agent), each Borrower shall pay to such Lender such
additional
amount or amounts as will compensate such Lender or its parent for
such
reduction, it being understood and agreed, however, that a Lender
shall not be
entitled to such compensation as a result of such Lender's
compliance with, or
pursuant to any request or directive to comply with, any such law,
rule or
regulation as in effect on the date hereof. Each Lender, upon
determining in
good faith that any additional amounts will be payable pursuant to
this Section
2.10(c), will give prompt written notice thereof to the Borrowers,
which notice
shall set forth in reasonable detail the basis of the calculation
of such
additional amounts, although the failure to give any such notice
shall not,
subject to Section 2.13, release or diminish either Borrower's
obligations to
pay additional amounts pursuant to this Section 2.10(c) upon
receipt of such
notice.
2.11
COMPENSATION.
If
(a) any payment of principal of any LIBOR Loan, or any continuation
of
any LIBOR Loan, is made by a Borrower (or a replacement Lender in
the case of
Section 12.7) to or for the account of a Lender other than on the
last day of
the LIBOR Period pursuant to Section 2.5, 2.6, 2.10, 5.1 or 12.7,
as a result of
acceleration of the maturity of the Revolving Credit Loans pursuant
to Article
10 or for any other reason, (b) any Borrowing by a Borrower of
LIBOR Loans is
not made as a result of a withdrawn Notice of Borrowing, (c) any
ABR Loan of a
Borrower is not converted into a LIBOR Loan as a result of a
withdrawn Notice of
Continuation, (d) any LIBOR Loan of a Borrower is not continued as
a LIBOR Loan
as a result of a withdrawn Notice of Continuation or (e) any
prepayment of
principal of any LIBOR Loan of a Borrower is not made as a result
of a withdrawn
notice of prepayment pursuant to Section 5.1, such Borrower shall,
after receipt
of a written request by such Lender (which request shall set forth
in reasonable
detail the basis for requesting such amount), pay to the
Administrative Agent
for the account of such Lender any amounts required to compensate
such Lender
for any additional losses, costs or expenses that such Lender may
reasonably
incur as a result of such payment, failure to convert, failure to
continue or
failure to prepay, including any loss, cost or expense (excluding
loss of
anticipated profits) actually incurred by reason of the liquidation
or
reemployment of deposits or other funds acquired by any Lender to
fund or
maintain such LIBOR Loan.
2.12
CHANGE OF LENDING OFFICE.
Each
Lender agrees that, upon the occurrence of any event giving rise
to
the operation of Section 2.10(a)(ii), 2.10(a)(iii), 2.10(b) or 5.3
with respect
to such Lender, it will, if requested by the Borrowers, use
reasonable efforts
(subject to overall policy considerations of such Lender) to
designate another
lending office for any Revolving Credit Loans affected by such
event; provided
that such designation is made on such terms that such Lender and
its lending
office suffer no economic, legal or regulatory disadvantage, with
the object of
avoiding the consequence of the event giving rise to the operation
of any such
Section. Nothing in this Section 2.12 shall affect or postpone any
of the
obligations of the Borrowers or the right of any Lender provided in
Section 2.10
or 5.3.
23
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2.13
NOTICE OF CERTAIN COSTS.
Notwithstanding anything in this Agreement to the contrary, to the
extent
any notice required by Section 2.10, 2.11, 3.5 or 5.3 is given by
any Lender
more than 180 days after such Lender has knowledge (or should have
had
knowledge) of the occurrence of the event giving rise to the
additional cost,
reduction in amounts, loss, tax or other additional amounts
described in such
Sections, such Lender shall not be entitled to compensation under
Section 2.10,
2.11, 3.5 or 5.3, as the case may be, for any such amounts incurred
or accruing
prior to the giving of such notice.
2.14
EXTENSION OF COMMITMENT TERMINATION DATE.
(a)
REQUESTS FOR EXTENSION. The Borrowers may, by joint notice to
the
Administrative Agent (who shall promptly notify the Lenders) not
earlier than 60
days and not later than 35 days prior to any anniversary of the
Closing Date,
commencing with the first anniversary thereof (any such anniversary
date, as
applicable, the "EXTENSION DATE"), request that each Lender extend
the Revolving
Credit Maturity Date then in effect hereunder (the "EXISTING
REVOLVING CREDIT
MATURITY DATE") for an additional year from the Existing Revolving
Credit
Maturity Date; provided that the Borrowers shall not make more than
two such
requests hereunder.
(b)
LENDER ELECTIONS TO EXTEND. Each Lender, acting in its sole and
individual discretion, shall, by notice to the Administrative Agent
given not
earlier than 30 days prior to the Extension Date and not later than
the date
(the "NOTICE DATE") that is 20 days prior to the Extension Date,
advise the
Administrative Agent whether or not such Lender agrees to such
extension (and
each Lender that determines not to so extend its Revolving Credit
Maturity Date
(a "NON-EXTENDING LENDER") shall notify the Administrative Agent of
such fact
promptly after such determination (but in any event no later than
the Notice
Date)) and any Lender that does not so advise the Administrative
Agent on or
before the Notice Date shall be deemed to be a Non-Extending
Lender. The
election of any Lender to agree to such extension shall not
obligate any other
Lender to so agree. The Revolving Credit Commitments of a
Non-Extending Lender
shall terminate on the Existing Revolving Credit Maturity Date, and
on such date
(i) the loans made by such Non-Extending Lender shall mature and be
due and
payable by each Borrower, and (ii) all other amounts owing to such
Non-Extending
Lender hereunder shall be due and payable.
(c)
NOTIFICATION BY ADMINISTRATIVE AGENT. The Administrative Agent
shall
notify each Borrower of each Lender's determination under this
Section no later
than the date 15 days prior to the Extension Date (or, if such date
is not a
Business Day, on the next preceding Business Day).
(d)
ADDITIONAL COMMITMENT LENDERS. The Borrowers shall have the right
on or
before the Existing Revolving Credit Maturity Date to replace each
Non-Extending
Lender with, and add as "Lenders" under this Agreement in place
thereof, one or
more Persons (each, an "ADDITIONAL COMMITMENT LENDER"; each
Additional
Commitment Lender, together with any Lender that extends its
Commitment, being
collectively called the "CONTINUING LENDERS") with the approval of
the
Administrative Agent and the Letter of Credit Issuer (which
approvals shall
24
<PAGE>
not be unreasonably withheld), each of which Additional Commitment
Lenders shall
have entered into an agreement in form and substance satisfactory
to each
Borrower and the Administrative Agent pursuant to which such
Additional
Commitment Lender shall undertake a Revolving Credit Commitment
(and, if any
such Additional Commitment Lender is already a Lender, its
Revolving Credit
Commitment shall be in addition to such Lender's Revolving Credit
Commitment
hereunder on such date).
(e)
MINIMUM EXTENSION REQUIREMENT. If (and only if) the total of
the
Revolving Credit Commitments of the Lenders (including any
Additional Commitment
Lenders) that have agreed so to extend the Revolving Credit
Maturity Date shall
be more than 50% of the aggregate amount of the Revolving Credit
Commitments in
effect on the Notice Date, then, effective as of the Extension
Date, the
Revolving Credit Maturity Date of each Continuing Lender shall be
extended to
the date falling one year after the Existing Revolving Credit
Maturity Date
(except that, if such date is not a Business Day, such Revolving
Credit Maturity
Date as so extended shall be the next preceding Business Day) and
each
Additional Commitment Lender shall thereupon become (and each
Non-Extending
Lender that has been replaced as provided above shall cease to be)
a "Lender"
for all purposes of this Agreement.
(f)
CONDITIONS TO EFFECTIVENESS OF EXTENSIONS. Notwithstanding the
foregoing, the extension of the Revolving Credit Maturity Date
pursuant to this
Section shall not be effective with respect to any Lender unless
the
Administrative Agent shall have received a certificate of an
Authorized Officer
of the Borrower certifying that:
(i) no Default or Event of Default relating to either Borrower or
any
of
its Subsidiaries shall have occurred and be continuing on the date
of
such
extension and after giving effect thereto; and
(ii) the representations and warranties made by each Borrower
contained in this Agreement are true and correct on and as of the
date of
such extension and
after giving effect thereto, as though made on and as of
such
date (or, if any such representation or warranty is expressly
stated
to
have been made as of a specific date, as of such specific
date).
ARTICLE 3
LETTERS OF CREDIT.
3.1
GENERALLY.
(a)
Subject to and upon the terms and conditions herein set forth,
each
Borrower, at any time and from time to time on or after the Closing
Date and
prior to the L/C Maturity Date, may request that the Letter of
Credit Issuer
issue, for the account of such Borrower, a standby letter of credit
or letters
of credit (in such form as may be approved by the Letter of Credit
Issuer in its
reasonable discretion) which is participated by the Letter of
Credit Issuer
pursuant to Section 3.3 (each such letter of credit, a "LETTER OF
CREDIT").
(b)
Notwithstanding the foregoing, (w) no Letter of Credit shall be
issued
the Stated Amount of which, when added to the sum of (A) the Letter
of Credit
Exposure of all of the Lenders at such time and (B) the aggregate
principal of
all Revolving Credit Loans then
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outstanding would exceed (a) in the case of ITC, the ITC
Availability Limit, (b)
in the case of METC, the METC Availability Amount and (c) the Total
Revolving
Credit Commitment then in effect; (x) each Letter of Credit shall
have an expiry
date occurring no later than one year after the date of issuance
thereof;
provided that in no event shall such expiry date occur later than
the L/C
Maturity Date; (y) each Letter of Credit shall be denominated in
Dollars and
shall provide for drawings thereunder to be made in Dollars; and
(z) no Letter
of Credit shall be issued by the Letter of Credit Issuer for the
account of
either Borrower after it has received a written notice from such
Borrower or any
Lender stating that a Default or Event of Default relating to such
Borrower has
occurred and is continuing until such time as the Letter of Credit
Issuer shall
have received a written notice of (A) rescission of such notice
from the party
or parties originally delivering such notice (provided that in the
case of any
such notice delivered by a Borrower, the Administrative Agent has
not objected
to or contested such rescission) or (B) the waiver of such Default
or Event of
Default in accordance with the provisions of Section 12.1.
3.2
LETTER OF CREDIT REQUESTS AND INFORMATION TO ADMINISTRATIVE
AGENT.
(a)
Whenever a Borrower desires that a Letter of Credit be issued for
its
account, it shall give the Administrative Agent and the Letter of
Credit Issuer
at least three (or such lesser number as may be agreed upon by
the
Administrative Agent and the Letter of Credit Issuer) Business
Days' written
notice thereof. Each notice shall be executed by a Borrower and
shall be in the
form of Exhibit G (each a "LETTER OF CREDIT REQUEST"). The
Administrative Agent
shall promptly transmit copies of each Letter of Credit Request to
each Lender.
(b)
The making of each Letter of Credit Request shall be deemed to be
a
representation and warranty by the relevant Borrower that the
Letter of Credit
may be issued in accordance with, and will not violate the
requirements of,
Section 3.1(b).
(c)
The Letter of Credit Issuer shall, as soon as practicable following
the
issuance, cancellation or termination of any Letter of Credit,
provide a copy of
such Letter of Credit, cancellation or termination to the
Administrative Agent.
3.3
LETTER OF CREDIT PARTICIPATIONS.
(a)
Immediately upon the issuance by the Letter of Credit Issuer of
any
Letter of Credit, the Letter of Credit Issuer shall be deemed to
have sold and
transferred to each other Lender that has a Revolving Credit
Commitment (each
such other Lender, in its capacity under this Section 3.3, an
"L/C
PARTICIPANT"), and each such L/C Participant shall be deemed
irrevocably and
unconditionally to have purchased and received from the Letter of
Credit Issuer,
without recourse or warranty, an undivided interest and
participation (each an
"L/C PARTICIPATION"), to the extent of such L/C Participant's
Revolving Credit
Commitment Percentage from time to time, in such Letter of Credit,
each
substitute letter of credit, each drawing made thereunder and the
obligations of
the relevant Borrower under this Agreement with respect thereto,
and any
security therefor or guaranty pertaining thereto (although the
Letter of Credit
Fee will be paid directly to the Administrative Agent for the
ratable account of
the L/C Participants as provided in Section 4.1(b) and the L/C
Participants
shall have no right to receive any portion of any Fronting
Fees).
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(b)
In determining whether to pay under any Letter of Credit, the
Letter of
Credit Issuer shall have no obligation relative to the L/C
Participants other
than to confirm that any documents required to be delivered under
such Letter of
Credit have been delivered and that they appear to comply on their
face with the
requirements of such Letter of Credit. Any action taken or omitted
to be taken
by the Letter of Credit Issuer under or in connection with any
Letter of Credit
issued by it, unless taken or omitted through its gross negligence
or willful
misconduct as determined by a final judgment of a court of
competent
jurisdiction, shall not create for the Letter of Credit Issuer any
resulting
liability.
(c)
In the event that the Letter of Credit Issuer makes any payment
under
any Letter of Credit issued by it and the relevant Borrower shall
not have
repaid the amount in full to the Letter of Credit Issuer pursuant
to Section
3.4(a), the Letter of Credit Issuer shall promptly notify the
Administrative
Agent (who shall in turn promptly notify each L/C Participant) of
the failure,
and each L/C Participant shall promptly and unconditionally pay to
the
Administrative Agent, for the account of the Letter of Credit
Issuer, the amount
of the L/C Participant's Revolving Credit Commitment Percentage
(determined as
of the date of the notice referred to above) of the unreimbursed
payment in
Dollars and in same day funds. If the Letter of Credit Issuer so
notifies, prior
to 11:00 a.m. (New York time) on any Business Day, any L/C
Participant required
to fund a payment under a Letter of Credit, the L/C Participant
shall make
available to the Administrative Agent for the account of the Letter
of Credit
Issuer the L/C Participant's Revolving Credit Commitment Percentage
of the
amount of the payment on the Business Day in same day funds. If and
to the
extent the L/C Participant shall not have so made its Revolving
Credit
Commitment Percentage of the amount of the payment available to
the
Administrative Agent for the account of the Letter of
