EXHIBIT 10(d)2
FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED COMMITTED FACILITY LETTER
This First Amendment to Third Amended and Restated Committed Facility
Letter is dated as of December 14, 2004, by and among ALLETE, INC., a Minnesota
corporation (the "COMPANY"), the banks from time to time party to the Committed
Facility Letter (as hereinafter defined) (each a "BANK" and collectively the
"BANKS") and LASALLE BANK NATIONAL ASSOCIATION, in its capacity as agent for the
Banks (in such capacity, the "AGENT").
WITNESSETH THAT:
WHEREAS, the Company, the Banks and the Agent are party to that
certain Third Amended and Restated Committed Facility Letter dated as of
December 23, 2003 (together with all exhibits, schedules, attachments,
appendices and amendments thereof, the "COMMITTED FACILITY LETTER"); and
WHEREAS, the Company has requested that the Committed Facility Letter
be amended as set forth herein and the Banks are agreeable to such request on
the terms and subject to the conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company, the Banks and the
Agent hereby agree as follows:
1. The parties hereto desire to extend the term of the Facility for an
additional three years. Accordingly, the penultimate sentence of the second
paragraph of the Committed Facility Letter is hereby deleted in its entirety and
the following sentence is hereby substituted therefor:
"This Facility shall terminate on December 14, 2007 (the
"TERMINATION DATE")."
2. The definition of "Applicable Margin" appearing in Section 8 of the
Committed Facility Letter is hereby deleted in its entirety and the following
definition is hereby substituted therefor:
"APPLICABLE MARGIN" means (i) with respect to Eurodollar
Loans, (a) 0.425% per annum for any day Level I Status
exists; (b) 0.550% per annum for any day Level II Status
exists; (c) 0.675% per annum for any day Level III Status
exists; (d) 0.800% per annum for any day Level IV Status
exists; and (e) 1.300% per annum for any day Level V Status
exists; and (ii) with respect to Prime Rate Loans, (a)
0.000% per annum for any day Level I Status exists; (b)
0.000% per annum for any day Level II Status
exists; (c) 0.000% per annum for any day Level III Status
exists; (d) 0.500% per annum for any day Level IV Status
exists; and (e) 1.500% per annum for any day Level V Status
exists.
3. The parties hereto desire to reduce the aggregate amount available to be
borrowed by the Company under the Facility. Accordingly, the Commitments of each
Bank shall equal the amount set forth opposite the name of such Bank on the
signature pages hereto.
4. Section 4(b) specifying the conditions precedent to the Banks'
obligations to make Loans is hereby deleted in its entirety and the following
new Section 4(b) is substituted in lieu thereof:
"The obligation of each Bank to make any Loan (including
the initial Loan) shall be subject to the following
statements being true and correct before and after giving
effect to such Loan: (i) the representations and warranties
set forth in Section 5 shall be true and correct with the
same effect as if then made (unless stated to relate solely
to an earlier date, in which case such representations and
warranties shall be true and correct as of such earlier
date); and (ii) no Event of Default or Unmatured Event of
Default shall have occurred and be continuing, PROVIDED
that this subsection 4(b)(ii) shall not apply to an Event
of Default occurring solely under clause (vii) of
subsection 7(a) with respect to a Loan if the proceeds of
such Loan will be used exclusively to repay the Company's
commercial paper (and, in the event of any such Loan, the
Agent may require the Company to deliver information
sufficient to disburse the proceeds of such Loan directly
to the holders of such commercial paper or a paying agent
therefor)."
5. Except as expressly amended hereby, the Committed Facility Letter and
all other documents executed in connection therewith shall remain in full force
and effect in accordance with their respective terms. The Committed Facility
Letter, as amended hereby, and all rights and powers created thereby and
thereunder or under such other documents are in all respects ratified and
confirmed. From and after the date hereof, the Committed Facility Letter shall
be deemed to be amended and modified as herein provided and, except as so
amended and modified, the Committed Facility Letter shall continue in full force
and effect in accordance with its terms and the Committed Facility Letter and
this Amendment shall be read, taken and construed as one and the same
instrument. On and after the date hereof the term "AGREEMENT" as used in the
Committed Facility Letter and all other references to the Committed Facility
Letter in the Committed Facility Letter, the other documents executed in
connection therewith and/or herewith or any other instrument, document or
writing executed by the Company or any other person or furnished to the Agent
and/or the Banks by the Company, or any other person
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in connection herewith or therewith, shall be deemed to be a reference to the
Committed Facility Letter as hereby amended.
6. The effectiveness of this Amendment is subject to the satisfaction of
the following conditions precedent:
(a) The Company shall pay to the Agent for the account of the Banks
based upon each Bank's pro rata portion of the aggregate Commitments, the
renewal fee set forth in that certain renewal fee letter of even date
herewith by and between the Agent and the Company, together with such other
fees for the account of Agent, as set forth in that certain agent fee
letter, also of even date herewith;
(b) The Company shall have executed and delivered this Amendment to
Agent together with such other documents and instruments as Agent may
reasonably require;
(c) No Default or Event of Default shall have occurred and be
continuing;
(d) The Company shall have executed and delivered to each Bank a new
Note (in substitution and without effecting a novation of any existing
Note, which existing Note shall be surrendered by each such Bank, marked
"Cancelled and Substituted") corresponding in maximum principal amount to
the Commitment of each such Bank as set forth on the signature pages
hereof;
(e) Agent shall have received an opinion of counsel to the Company
in form and substance reasonably acceptable to Agent; and
(f) Agent shall have received a certificate of the Secretary of the
Company having attached (i) a copy of the resolution of the Company
authorizing the execution, delivery and performance of this Amendment and
the transactions contemplated hereunder, certified by the Secretary of the
Company; (ii) an incumbency certificate showing the names and titles, and
bearing the signatures of, the officers of the Company authorized to
execute this Amendment; and (iii) true, correct and complete, copies of its
constituent and governance documents.
7. On and as of the date hereof, the Company represents and warrants to the
Banks that:
(a) The representations and warranties contained in this Amendment
and the Committed Facility Letter are true and correct in all material
respects, in each case as though made on and as of the date hereof, except
to the extent such representations and warranties relate solely to an
earlier date (and then as of such earlier date); and
(b) Both before and after giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing or would result
from the execution and delivery of this Amendment; and
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(c) The Company is, and will be, in full compliance with all of the
material terms, conditions and all other provisions of this Amendment and
the Credit Documents; and
(d) This Amendment has been duly authorized, executed and delivered
on its behalf, and both the Committed Facility Letter, both before being
amended and supplemented hereby and as amended and supplemented hereby, and
this Amendment constitute its legal, valid and binding obligation
enforceable against it in accordance with their terms, except to the extent
that a remedy or default may be determined by a court of competent
jurisdiction to constitute a penalty and except to the extent that
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights or by
general principles of equity.
8. This Amendment shall be construed in accordance with and governed by the
internal laws of the State of Illinois, without regard to its conflicts of laws
principles.
9. This Amendment may be signed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Amendment may also be signed by facsimile, and
any facsimile signature hereto shall for all purposes be deemed an original
signature.
10. Except as otherwise specified herein, this Amendment embodies the
entire agreement and understanding between the Company and the Banks with
respect to the subject matter hereof and supersedes all prior agreements,
consents and understandings relating to such subject matter.
11. This Amendment shall be binding upon and inure to the benefit of the
Banks and their successors and assigns and the Company and its permitted
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to Third Amended and Restated Committed Facility Letter to be duly
executed and delivered by their duly authorized officers as of the day and year
first above written.
THE COMPANY: ALLETE, INC., a Minnesota corporation
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By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Sr. Vice President and CFO
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AGENT/BANKS: LASALLE BANK NATIONAL
----------- ASSOCIATION, in its individual capacity
as a Bank and as Agent
Commitment: $26,000,000
By: /s/ Xxxxx X. Xxxxxxxx, XX
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Name: XXXXX X. XXXXXXXX, XX
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Title: SENIOR VICE PRESIDENT
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By: /s/ Xxxxxxx X. Xxxxxxx
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Name: XXXXXXX X. XXXXXXX
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Title: ASSISTANT VICE PRESIDENT
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SIGNATURE PAGE
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED COMMITTED FACILITY LETTER
DECEMBER 14, 2004
OTHER BANKS:
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Commitment: $18,500,000 U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxxxxx X. Xxxx
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Name: Xxxxxxxxxxx X. Xxxx
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Title: Assistant Vice President
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Commitment: $18,500,000 XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
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Title: Vice President
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By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
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Title: Vice President & Loan Team Manager
Xxxxx Fargo Bank,
National Association
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Commitment: $22,000,000 JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxxxx X. XxXxxxx
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Name: XXXXXXX X. XxXXXXX
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Title: VICE PRESIDENT
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Commitment: $15,000,000 THE BANK OF TOKYO- MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ Xxxxxxx XxXxx
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Name: Xxxxxxx XxXxx
Title: Vice President & Manager
