U.S. $200,000,000 REVOLVING CREDIT AGREEMENT, dated as of May 17, 2011, ITC HOLDINGS CORP. as the Borrower, VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS FROM TIME TO TIME PARTIES HERETO, as the Lenders, JPMORGAN CHASE BANK, N.A., as the...
Exhibit 10.94
U.S. $200,000,000
dated as of May 17, 2011,
ITC HOLDINGS CORP.
as the Borrower,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS AND OTHER
PERSONS FROM TIME TO TIME PARTIES HERETO,
as the Lenders,
PERSONS FROM TIME TO TIME PARTIES HERETO,
as the Lenders,
JPMORGAN CHASE BANK, N.A.,
as the Administrative Agent
as the Administrative Agent
X.X. XXXXXX SECURITIES LLC,
BARCLAYS CAPITAL
as Joint Lead Arrangers and Joint Bookrunners
BARCLAYS CAPITAL
as Joint Lead Arrangers and Joint Bookrunners
BARCLAYS CAPITAL,
as Syndication Agent
as Syndication Agent
TABLE OF CONTENTS
Page | ||||
ARTICLE 1 DEFINITIONS |
1 | |||
1.1 Defined Terms |
1 | |||
1.2 Accounting Terms; GAAP |
15 | |||
1.3 Interpretation |
16 | |||
ARTICLE 2 AMOUNT AND TERMS OF CREDIT |
16 | |||
2.1 Commitments |
16 | |||
2.2 Minimum Amount of Each Borrowing; Maximum Number of Borrowings |
16 | |||
2.3 Notice of Borrowing |
16 | |||
2.4 Disbursement of Funds |
17 | |||
2.5 Repayment of Loans; Evidence of Debt |
18 | |||
2.6 Changes in Type of Revolving Credit Loan |
19 | |||
2.7 Pro Rata Borrowings |
20 | |||
2.8 Interest and Fees |
20 | |||
2.9 Interest Periods |
21 | |||
2.10 Increased Costs, Illegality, etc. |
22 | |||
2.11 Compensation |
24 | |||
2.12 Change of Lending Office |
24 | |||
2.13 Notice of Certain Costs |
25 | |||
2.14 Defaulting Lenders |
25 | |||
ARTICLE 3 LETTERS OF CREDIT |
27 | |||
3.1 Letters of Credit |
27 | |||
3.2 Letter of Credit Requests and Information to Administrative Agent |
27 | |||
3.3 Letter of Credit Participations |
28 | |||
3.4 Agreement to Repay Letter of Credit Drawings |
30 | |||
3.5 Increased Costs |
31 | |||
3.6 Successor Letter of Credit Issuer |
32 | |||
ARTICLE 4 FEES; COMMITMENTS |
32 | |||
4.1 Fees |
32 | |||
4.2 Voluntary Reduction of Revolving Credit Commitments |
33 | |||
4.3 Mandatory Termination of Commitments |
34 | |||
ARTICLE 5 PAYMENTS |
34 | |||
5.1 Prepayments |
34 |
i
Page | ||||
5.2 Method and Place of Payment |
34 | |||
5.3 Net Payments |
35 | |||
5.4 Computations of Interest and Fees |
38 | |||
ARTICLE 6 CONDITIONS PRECEDENT |
38 | |||
6.1 Conditions Precedent to Initial Effectiveness |
38 | |||
6.2 Conditions Precedent to All Credit Events |
40 | |||
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 | |||
8.11 Changes in Business |
49 |
ii
Page | ||||
ARTICLE 9 NEGATIVE COVENANTS |
49 | |||
9.1 Limitation on Liens |
49 | |||
9.2 Limitation on Fundamental Changes |
51 | |||
9.3 Limitation on Dividends |
52 | |||
9.4 Debt to Capitalization Ratio |
52 | |||
9.5 Limitation on Sale-Lease Back Transactions |
52 | |||
ARTICLE 10 EVENTS OF DEFAULT |
53 | |||
10.1 Payments |
53 | |||
10.2 Representations, etc. |
53 | |||
10.3 Covenants |
53 | |||
10.4 Default Under Other Agreements |
53 | |||
10.5 Bankruptcy, etc. |
54 | |||
10.6 Non-ownership of Material Subsidiaries |
54 | |||
10.7 Judgments |
54 | |||
10.8 Change of Ownership |
55 | |||
10.9 Pension Plans |
55 | |||
10.10 Remedies |
55 | |||
10.11 Remedies Cumulative |
55 | |||
ARTICLE 11 THE ADMINISTRATIVE AGENT |
56 | |||
ARTICLE 12 MISCELLANEOUS |
58 | |||
12.1 Amendments and Waivers |
58 | |||
12.2 Notices |
59 | |||
12.3 No Waiver; Cumulative Remedies |
61 | |||
12.4 Survival of Representations and Warranties |
61 | |||
12.5 Payment of Expenses and Taxes |
61 | |||
12.6 Successors and Assigns; Participations and Assignments |
62 | |||
12.7 Replacements of Lenders under Certain Circumstances |
66 | |||
12.8 Adjustments; Set-off |
66 | |||
12.9 Marshalling; Payments Set Aside |
68 | |||
12.10 Counterparts |
68 | |||
12.11 Severability |
68 | |||
12.12 Integration |
68 | |||
12.13 Governing Law |
68 | |||
12.14 Submission to Jurisdiction; Waivers |
69 |
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Page | ||||
12.15 Acknowledgements |
69 | |||
12.16 Waivers of Jury Trial |
70 | |||
12.17 Confidentiality |
70 | |||
12.18 Treatment of Revolving Credit Loans |
70 | |||
12.19 USA Patriot Act |
71 | |||
12.20 No Fiduciary Duty |
71 |
SCHEDULES: |
||||
Schedule I Commitments |
||||
Schedule II Environmental Matters |
||||
Schedule III Pension and Welfare Matters |
||||
Schedule IV Outstanding Liens on Closing Date |
||||
Schedule V Existing Letters of Credit |
||||
EXHIBITS: |
||||
Exhibit A Form of Notice of Borrowing |
||||
Exhibit B Form of Notice of Continuation |
||||
Exhibit C Form of Letter of Credit Request |
||||
Exhibit D Form of Closing Certificate |
||||
Exhibit E Form of Compliance Certificate |
iv
REVOLVING CREDIT AGREEMENT, dated as of May 17, 2011, among ITC HOLDINGS CORP., a
Michigan corporation (the “Borrower”), various financial institutions and other Persons from time
to time parties hereto as lenders (each a “Lender” and, collectively, the “Lenders”) and JPMORGAN
CHASE BANK, N.A. (“JPMCB”), as administrative agent (in such capacity, the “Administrative Agent”).
The Borrower has requested that the Lenders make senior loans to it in an aggregate principal
amount not exceeding $200,000,000 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
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 greatest 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, (b) the Federal Funds Effective Rate in effect on
such day plus 0.50% and (c) LIBOR for a one month interest period on such day (or if such day is
not a Business Day, the immediately preceding Business Day) plus 1.00%. 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 Article 11.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the
Administrative Agent.
“Affiliate” shall mean, with respect to any Person, (a) any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common control with such Person,
and (b) any other Person in which such Person directly or indirectly through Subsidiaries has a 10%
or greater equity interest. A Person shall be deemed to control a Person if such Person possesses,
directly or indirectly, the power (i) to vote 10% or more of the Voting Stock having ordinary
voting power for the election of directors (or the equivalent) of such other Person or (ii) to
direct or cause the direction of the management and policies of such other Person, whether through
the ownership of Capital Stock, by contract or otherwise.
“Agreement” shall mean this Revolving Credit Agreement, as the same may be amended, modified,
supplemented, restated or replaced from time to time.
“Applicable Margin” and “Commitment Fee Rate” shall mean, for any day, the applicable rate per
annum set forth below under the caption “Applicable Margin” or “Commitment Fee Rate”, respectively,
based upon the ratings by Xxxxx’x and S&P, respectively, applicable on such date to the Borrower’s
non-credit-enhanced long term senior unsecured debt:
Debt Ratings | Commitment | Applicable Margin | ||||
Xxxxx’x/S&P | Fee | LIBOR | ABR | |||
Category 1 ≥A1/A+
|
0.100% | 1.100% | 0.100% | |||
Category 2 = A2/A | 0.125% | 1.150% | 0.150% | |||
Category 3 =A3/A- | 0.150% | 1.250% | 0.250% | |||
Category 4 =Baa1/BBB+ | 0.200% | 1.500% | 0.500% | |||
Category 5 =Baa2/BBB | 0.250% | 1.750% | 0.750% | |||
Category 6 ≤Baa3/BBB- | 0.300% | 2.250% | 1.250% | |||
For purposes of this definition, (i) if the ratings established by Xxxxx’x and S&P shall
fall within different Categories, the Applicable Margin and the Commitment Fee Rate shall be based
on the higher of the two ratings unless one of the two ratings is two or more Categories lower than
the other, in which case the Applicable Margin and the Commitment Fee Rate shall be determined by
reference to the Category next below the higher of the two Categories, (ii) if only one rating is
available from either Xxxxx’x or S&P, then such rating shall be used to determine the applicable
Category, (iii) if neither Xxxxx’x nor S&P shall have in effect a rating for the Borrower’s
non-credit-enhanced long term senior unsecured debt, then Category 6 above shall apply, and (iv) if
the ratings established or deemed to have been established by Xxxxx’x and S&P shall be changed
(other than as a result of a change in the rating system of Xxxxx’x 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 and Commitment Fee Rate shall apply during the period commencing on
the effective date of such change and ending on the date immediately preceding the effective date
of the next such change. If the rating system of Xxxxx’x or S&P shall change, or if either such
rating agency shall cease to be in the business of
2
rating corporate debt obligations, the Borrower
and the Lenders shall negotiate in good faith to amend this definition to reflect such changed
rating system or the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Margin and the Commitment Fee Rate shall be
determined by reference to the rating most recently in effect prior to such change or cessation.
“Approved Fund” shall mean any Person (other than a natural person) that is or will be engaged
in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business and that is administered or managed by
a Lender, an Affiliate of a Lender or an entity or an Affiliate of an entity that administers
or manages a Lender.
“Arranger” and “Arrangers” shall mean X.X. Xxxxxx Securities LLC and Barclays Capital, the
investment banking division of Barclays Bank PLC, individually or collectively, as the context
requires.
“Assignee” shall have the meaning provided in Section 12.6(b)(i).
“Assignment and Acceptance” shall mean an assignment and acceptance agreement reasonably
satisfactory in form and substance to the Administrative Agent and delivered by each Assignee to
the Administrative Agent pursuant to Section 12.6(b)(ii)(C).
“Assignment Effective Date” shall have the meaning provided in Section 12.6(b)(iii).
“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”, as applied to any Person, shall mean the Chief Executive Officer, the
President, any Executive Vice-President, any Senior Executive Vice President, any Senior
Vice-President, the Chief Financial Officer, the Treasurer or General Counsel of such Person or any
other senior officer of such Person designated as such in writing to the Administrative Agent by
such Person.
“Available Revolving Credit Commitment” shall mean, with respect to any Lender, an amount
equal to the excess, if any, of (a) the amount of such Lender’s Revolving Credit Commitment over
(b) the sum of (i) the aggregate principal amount of all Revolving Credit Loans of such Lender then
outstanding and (ii) that portion of such Lender’s Letter of Credit Exposure.
“Bankruptcy Code” shall have the meaning provided in Section 10.5.
3
“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator,
custodian, assignee for the benefit of creditors or similar Person charged with the reorganization
or liquidation of its business appointed for it, or, in the good faith determination of the
Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy
Event shall not result solely by virtue of any ownership interest, or the acquisition of any
ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made by such Person.
“Borrower” shall have the meaning provided in the recitals to this Agreement.
“Borrowing” shall mean the incurrence of one Type of Revolving Credit Loan on a given date (or
resulting from conversions or continuations on a given date) 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.
“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
4
indirectly, the beneficial
owner of capital stock representing more than 35% of the ordinary voting power represented by the
issued and outstanding Voting Stock of the Borrower; and/or (ii) a majority of the incumbent
directors of the Borrower ceases to be persons who were either (x) directors of the Borrower on the
Closing Date or (y) new directors (such persons being called herein “New Members”)
appointed or nominated for election by one or more persons who were members of the board of
directors of the Borrower on the Closing Date or who were appointed or nominated by one or more
such New Members whether or not they were members on the Closing Date.
“Closing Date” shall mean May 17, 2011.
“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”.
“Compliance Certificate” shall have the meaning provided in Section 8.1(c).
“Confidential Information” shall have the meaning provided in Section 12.17.
“Consolidated Capitalization” means consolidated total assets less consolidated non-interest
bearing current liabilities, all as shown on the Borrower’s most recently delivered audited
consolidated balance sheet prepared in accordance with GAAP.
“Control”, “Controls” and “Controlled”, when used with respect to any Person, shall mean the
power to direct the management and policies of such Person, directly or indirectly, whether through
ownership of Voting Stock, by contract or otherwise.
“Controlled Group”, when used with respect to the Borrower, 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 such Person, 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.
“Credit Party” means the Administrative Agent, the Letter of Credit Issuer or any Lender.
“Debt to Capitalization Ratio” shall mean, with respect to the Borrower, as of any date of
determination, the ratio of (a) Total Debt for the Borrower as of such date to (b) Total
Capitalization for the Borrower as of such date.
“Default” shall mean any event, act or condition that with notice or lapse of time, or both,
would constitute an Event of Default.
5
“Defaulting Lender” shall mean any Lender, as determined by the Administrative Agent, that (a)
has failed, within three (3) Business Days of the date required to be funded or paid, to (i) fund
any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or (iii)
pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the
case of clause (i) above, such Lender notifies the Administrative Agent in writing that such
failure is the result of such Lender’s good faith determination that a condition precedent to
funding (specifically identified and including the condition precedent, together with any
applicable default) has not been satisfied, (b) has notified the Borrower or any Credit Party in
writing, or has made a public statement to the effect, that it does not intend or expect to
comply with any of its funding obligations under this Agreement (unless such writing or public
statement indicates that such position is based on such Lender’s good faith determination that a
condition precedent (specifically identified and including the condition precedent, together with
any applicable default) to funding a loan under this Agreement cannot be satisfied) or generally
under other agreements in which it commits to extend credit, (c) has failed, within three (3)
Business Days after written request by a Credit Party, acting in good faith, to provide a
certification in writing from an authorized officer of such Lender that it will comply with its
obligations to fund prospective Loans and participations in then outstanding Letters of Credit
under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to
this clause (c) upon such Credit Party’s receipt of such certification in form and substance
satisfactory to it and the Administrative Agent, or (d) has become, or has a Parent that has
become, the subject of a Bankruptcy Event.
“Dollars” and “$” shall mean lawful currency of the United States.
“Environmental Claims” shall mean, with respect to any Person, 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 such Person or any of its
Subsidiaries (a) in the ordinary course of such Person’s business or (b) as required in connection
with a financing transaction or an acquisition or disposition of real estate) or proceedings
relating in any way to any 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
6
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.
“Existing L/C” shall have the meaning provided in Section 3.1.
“FATCA” means Section 1471 through 1474 of the Code, as of the date of this Agreement, and any
regulations or official interpretations thereof.
“Federal Funds Effective Rate” shall mean, for any day, the weighted average of the per annum
rates on overnight federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that is a Business Day, the
average of the quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
“Fees” shall mean all amounts payable pursuant to, or referred to in, Section 4.1.
“Finance Parties” shall mean the Administrative Agent and the Lenders.
“Fronting Fee” shall have the meaning provided in Section 4.1(c).
“F.R.S. Board” shall mean the Board of Governors of the Federal Reserve System or any
successor thereto.
“GAAP” shall mean generally accepted accounting principles in the United States as in effect
from time to time.
“Governmental Authority” shall mean any nation or government, any state or other political
subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
“Guarantee Obligations” shall mean, as to any Person, any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness of any other Person (the “primary 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
7
(assuming such Person is required to perform thereunder)
as determined by such Person in good faith or, if the Guarantee Obligation is expressly limited to
a specified amount, such specified amount.
“Hazardous Material” shall mean (a) any petroleum or petroleum products, radioactive
materials, friable asbestos, urea formaldehyde foam insulation, transformers or other equipment
that contain dielectric fluid containing regulated levels of polychlorinated biphenyls, and radon
gas; (b) any chemicals, materials or substances defined as or included in the definition of
“hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous waste”,
“restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, or
“pollutants”, or words of similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, exposure to which is prohibited, limited or regulated by any
Governmental Authority.
“Hostile Take-Over Bid” shall mean an offer to purchase a controlling interest in any Person
by the Borrower or any of its Subsidiaries or in which the Borrower or any of its Subsidiaries is
involved, in respect of which the board of directors (or equivalent governing body for such entity)
of the target entity has recommended against acceptance of such offer to the target entity’s
shareholders or equity holders or which is similarly opposed or contested.
“Holdings Existing Credit Agreement” means the Revolving Credit Agreement dated as of March
29, 2007 (as amended, supplemented or otherwise modified from time to time) among the Borrower,
various financial institutions and other persons from time to time party thereto and JPMCB as
administrative agent.
“including” and “include” shall mean including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement, the parties hereto agree that
the rule of ejusdem generis shall not be applicable to limit a general statement, which is followed
by or referable to an enumeration of specific matters, to matters similar to the matters
specifically mentioned.
“Indebtedness” of any Person shall mean (a) all indebtedness of such Person for borrowed
money, (b) the deferred purchase price of assets or services that in accordance with GAAP would be
classified as a liability on the balance sheet of such Person, (c) the face amount 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 Midwest” shall mean ITC Midwest LLC, a Michigan limited liability company and Subsidiary
of the Borrower.
8
“ITC Midwest First Mortgage Indenture” shall mean the First Mortgage Deed of Trust dated as of
January 14, 2008 between ITC Midwest and The Bank of New York Mellon Trust Company, N.A. (f/k/a The
Bank of New York Trust Company, N.A.), as trustee thereunder, as the same may be amended,
supplemented or otherwise modified and in effect from time to time.
“ITCTransmission” shall mean International Transmission Company, a Michigan corporation and
Subsidiary of the Borrower.
“ITCTransmission First Mortgage Indenture” shall mean the First Mortgage and Deed of Trust,
dated as of July 15, 2003, between ITCTransmission and The Bank of New York Mellon Trust Company,
N.A. (f/k/a The Bank of New York Trust Company, N.A.) (as successor to BNY Midwest Trust Company),
as trustee thereunder, as the same may be amended, supplemented or otherwise modified and in effect
from time to time.
“ITCTransmission/METC Existing Credit Agreement” shall mean the Revolving Credit Agreement,
dated as of March 29, 2007 (as amended, supplemented or otherwise modified from time to time),
among ITCTransmission, METC, the various financial institutions and other Persons from time to time
parties thereto and JPMCB, as administrative agent.
“ITCTransmission Credit Agreement” shall mean the Revolving Credit Agreement, dated as of the
date hereof (as amended, supplemented or otherwise modified from time to time), among
ITCTransmission, the various financial institutions and other Persons from time to time parties
thereto and JPMCB, as administrative agent.
“L/C Maturity Date” shall mean the date that is five Business Days prior to the Revolving
Credit Maturity Date.
“L/C Participant” shall have the meaning provided in Section 3.3(a).
“L/C Participation” shall have the meaning provided in Section 3.3(a).
“Lender” and “Lenders” shall have the respective meanings provided in the preamble to this
Agreement.
“Letter of Credit” shall mean (i) each standby letter of credit issued pursuant to Section
3.1 and (ii) each Existing L/C.
“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).
9
“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 Reuters Page LIBOR1 (or
any successor page which displays an average British Bankers Association Interest Settlement Rate)
as of 11:00 a.m. (London time) on the second Business Day prior to the commencement of such LIBOR
Period; provided that if such Service is not available on such day, then the interest rate at which
the Administrative Agent is offered deposits of Dollars by leading banks in the London interbank
market as of 11:00 a.m. (London time) on the second Business Day prior to the commencement of such
LIBOR Period, for delivery on the first day of such LIBOR Period for the number of days comprised
in such LIBOR Period and in an amount comparable to the amount of such LIBOR Loan.
“LIBOR Loan” shall mean each Loan bearing interest at the rate provided in Section
2.8(b).
“LIBOR Period” shall mean, with respect to a LIBOR Loan, the interest period selected by the
Borrower for such LIBOR Loan in accordance with Section 2.9.
“Lien” shall mean any mortgage, pledge, security interest, hypothecation, assignment by way of
security, lien (statutory or other) or similar encumbrance (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement or any lease in the nature
thereof).
“Material Adverse Effect” shall mean a circumstance or condition affecting the business,
assets, operations, properties or financial condition of the Borrower and its Subsidiaries taken as
a whole that would materially adversely affect the ability of the Borrower to perform its
obligations under this Agreement.
“Material Subsidiary” shall mean, as at any date, a Subsidiary (the “Subject Subsidiary”),
including its subsidiaries, which meet any of the following conditions:
(a) The Borrower’s and its other Subsidiaries’ investments in and advances to the
Subject Subsidiary and its Subsidiaries exceeds 10% of the total assets of the Borrower and
its Subsidiaries consolidated as of the end of the then most recently completed fiscal year;
or
(b) The Borrower’s and its other Subsidiaries’ proportionate share of the total assets
(after intercompany eliminations) of the Subsidiary exceeds 10% of the total assets
10
of the
Borrower and its Subsidiaries consolidated as of the end of the then most recently completed
fiscal year; or
(c) The Borrower’s and its other Subsidiaries’ equity in the income from continuing
operations before income taxes, extraordinary items and cumulative effect of a change in
accounting principles of the Subject Subsidiary and its Subsidiaries exceeds 10% of such
income of the Borrower and its Subsidiaries consolidated for the then most recently
completed fiscal year.
“METC” means Michigan Electric Transmission Company, LLC, a Michigan corporation and
Subsidiary of the Borrower.
“METC Credit Agreement” shall mean the Revolving Credit Agreement, dated as of the date hereof
(as amended, supplemented or otherwise modified from time to time), among METC, the various
financial institutions and other Persons from time to time parties thereto and JPMCB, as
administrative agent.
“METC First Mortgage Indenture” means the First Mortgage Indenture, dated as of December 10,
2003, between METC and The Bank of New York Mellon Trust Company, N.A. (f/k/a The Bank of New York
Trust Company, N.A.) (as successor to 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 Xxxxx’x Investors Service, Inc. or any successor by merger or
consolidation to its business.
“Net Tangible Assets” means the amount shown as consolidated total assets on the Borrower’s
most recently delivered audited consolidated balance sheet prepared in accordance with GAAP, less
the following: (i) intangible assets including, without limitation, such items as goodwill,
trademarks, tradenames, patents and unamortized debt discount and expense and other regulatory
assets carried as an asset on such balance sheet; and (ii) appropriate adjustments, if any, on
account of minority interests.
“Non-U.S. Lender” shall mean any Lender that is not a “United States person”, as defined under
Section 7701(a)(30) of the Code.
“Notice of Borrowing” shall mean a Notice of Borrowing provided pursuant 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.
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“Other Taxes” shall have the meaning provided in Section 12.5.
“Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or
indirectly, a subsidiary.
“Participant” shall have the meaning provided in Section 12.6(c)(i).
“Pension Plan” shall mean a “pension plan”, as such term is defined in Section 3(2) of ERISA,
which is subject to Title IV of ERISA (other than a multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which the Borrower or any corporation, trade or business
that is, along with the Borrower, a member of a Controlled Group, is a contributing employer or a
sponsor.
“Permitted Liens” shall mean (a) Liens for taxes, assessments, customs duties or governmental
charges or claims not yet due or which are being contested in good faith and by appropriate
proceedings for which appropriate provisions have been established in accordance with GAAP; (b)
Liens in respect of property or assets of the Borrower or any of its Subsidiaries imposed by law,
such as carriers’, warehousemen’s and or mechanics’ Liens, and other similar Liens arising in the
ordinary course of business and Liens arising under zoning laws and ordinances and municipal bylaws
and regulations, in each case so long as such Liens arise in the ordinary course of business and do
not individually or in the aggregate have a Material Adverse Effect; (c) Liens arising out of
pledges or deposits under workmen’s compensation laws or similar legislation and Liens of judgments
thereunder which are not currently dischargeable, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of money) or leases to which the Borrower or any
Subsidiary is a party, or deposits to secure public or statutory obligations of the Borrower or any
Subsidiary, or deposits in connection with obtaining or maintaining self-insurance or to obtain the
benefits of any law, regulation or arrangement pertaining to unemployment insurance, old age
pensions, social security or similar matters, or deposits of cash or obligations of the United
States of America to secure surety, appeal or customs bonds to which the Borrower or any Subsidiary
is a party, or deposits in litigation or other proceedings such as, but not limited to,
interpleader proceedings, and, to the extent not securing Indebtedness, other similar obligations
incurred in the ordinary course of business; (d) easements, rights-of-way, restrictive covenants or
agreements, minor defects or irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business of the Borrower and its Subsidiaries taken as
a whole; and (e) to the extent not securing Indebtedness, (i) liens arising from judgments or
decrees in circumstances not constituting an Event of Default under Section 10.7; (ii)
ground leases in respect of real property on which facilities owned or leased by the Borrower or
any of its Subsidiaries are located; (iii) any interest or title of a lessor or secured by a
lessor’s interest under any lease not prohibited by this Agreement; (iv) liens incurred by the
licensing of trademarks by the Borrower or any of its Subsidiaries to others in the ordinary course
of business; and (v) leases or subleases granted to others, not interfering in any material respect
with the business of the Borrower and its Subsidiaries taken as a whole.
“Person” shall mean any individual, partnership, joint venture, firm, corporation, limited
liability company, association, trust or other enterprise or any Governmental Authority.
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“Projections” shall have the meaning provided in Section 6.1(i).
“Real Estate” shall have the meaning provided in Section 8.1(e).
“Register” shall have the meaning provided in Section 12.6(b)(iv).
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and
the respective directors, officers, employees, agents and advisors of such Person and such Person’s
Affiliates.
“Required Lenders” shall mean, at any date, Lenders having or holding more than 50% of the
Total Revolving Credit Commitment at such date (provided that in the case of a Defaulting Lender,
for this purpose only, its Revolving Credit Commitment shall be deemed to be equal to the
outstanding principal amount of all Revolving Credit Loans of such Defaulting Lender at such date)
or, if the Revolving Credit Commitments have terminated, more than 50% of the outstanding principal
amount of all Revolving Credit Loans and Letter of Credit Exposure on such date.
“Requirement of Law” shall mean, as to any Person, the Certificate of Incorporation and
By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule,
regulation, guideline, policy or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its property or assets
or to which such Person or any of its property or assets is subject and whether or not having the
force of law.
“Revolving Credit Commitment” shall mean, (a) with respect to each Lender that is a Lender on
the date hereof, the amount set forth on Schedule I as such Lender’s “Revolving Credit
Commitment” and (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, in each case as the same may be changed from time to time
pursuant to the terms hereof (including pursuant to Sections 4.2 and 12.6).
“Revolving Credit Commitment Percentage” shall mean, with respect to any Lender, the
percentage of the Total Revolving Credit Commitment represented by such Lender’s Revolving Credit
Commitment; provided that in the case of Section 2.14 when a Defaulting Lender
shall exist, “Revolving Credit Commitment Percentage” shall mean the percentage of the Total
Revolving Credit Commitment (disregarding any Defaulting Lender’s Revolving Credit Commitment)
represented by such Lender’s Revolving Credit Commitment. If the Total Revolving Credit
Commitments have terminated or expired, the Revolving Credit Commitment Percentages shall be
determined based upon the Revolving Credit Commitments most recently in effect, giving effect to
any assignments and to the Lender’s status as a Defaulting Lender at the time of determination.
“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.
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“Revolving Credit Loan” shall have the meaning provided in Section 2.1(a).
“Revolving Credit Maturity Date” shall mean May 17, 2016, or, if earlier, the date on which
the Revolving Credit Commitments shall have terminated or shall have been reduced to zero.
“Sale and Leaseback Transaction” shall have the meaning provided in Section 9.5.
“S&P” shall mean Standard & Poor’s Ratings 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. Unless otherwise
expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of the
Borrower.
“Successor Borrower” shall have the meaning provided in Section 9.2(a).
“Taxes” shall have the meaning provided in Section 5.3(a)(i).
“Total Capitalization” shall mean, as of any date of determination, the sum, without
duplication, of (a) Total Debt and (b) the total stockholder’s equity of the Borrower as determined
in accordance with GAAP; provided that the term “Total Capitalization” shall exclude the non-cash
effects of the March 31, 2006 FAS Statement titled “Employers’ Accounting for Defined Pension and
Postretirement Plans”.
“Total Debt” shall mean, as of any date of determination, (a) the sum, without duplication, of
(i) all Indebtedness of the Borrower and its Subsidiaries for borrowed money outstanding on such
date, (ii) all Capitalized Lease Obligations of the Borrower and its Subsidiaries outstanding on
such date and (iii) all Indebtedness of the Borrower and its Subsidiaries of the types described in
clauses (b) and (d) of the definition of Indebtedness (but in the case of clause (d), only to the
extent such Indebtedness is assumed by the Borrower or any
14
Subsidiary), all calculated on a
consolidated basis in accordance with GAAP and to the extent reflected as Indebtedness on the
consolidated balance sheet of the Borrower in accordance with GAAP minus (b) the aggregate amount
of cash held by the Borrower and its Subsidiaries as at such date and included in the cash accounts
listed on the consolidated balance sheet of the Borrower and its Subsidiaries and deposited with
the Administrative Agent to the extent the use thereof for application to payment of Indebtedness
of the Borrower and its Subsidiaries is not prohibited by law or any contract to which the Borrower
or any of its Subsidiaries is a party (but
in each case excluding equity securities that are mandatorily redeemable 91 or more days after
the Revolving Credit Maturity Date and that are classified as hybrid securities by Moody’s and/or
S&P).
“Total Revolving Credit Commitment” shall mean the sum of the Revolving Credit Commitments of
all the Lenders, which as of the Closing Date was $200,000,000.
“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 effective until such notice
shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any
other provision contained herein, all terms of an accounting or financial nature used herein shall
be construed, and all computations of amounts and ratios referred to herein shall be made (i)
without giving effect to any election under Accounting Standards Codification 000-00-00 (previously
referred to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards
Codification or Financial Accounting Standard having a similar result or effect) to value any
Indebtedness or other liabilities of the
15
Borrower or any Subsidiary at “fair value”, as defined
therein and (ii) without giving effect to any treatment of Indebtedness in respect of convertible
debt instruments under Accounting Standards Codification 470-20 to value any such Indebtedness in a
reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be
valued at the full stated principal amount thereof.
1.3 Interpretation.
The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Unless the context requires otherwise all references herein to Sections and
Schedules shall be construed to refer to Sections of, and Schedules to, this Agreement.
ARTICLE 2
AMOUNT AND TERMS OF CREDIT
AMOUNT AND TERMS OF CREDIT
2.1 Commitments.
(a) Subject to and upon the terms and conditions herein set forth, each Lender severally
agrees to make a loan or loans (each a “Revolving Credit Loan” and, collectively, the “Revolving
Credit Loans”) to the Borrower, which Revolving Credit Loans (i) shall be made at any time and from
time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (ii)
may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans
or LIBOR Loans (provided that all Revolving Credit Loans made by each of the Lenders pursuant to
the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of
Revolving Credit Loans of the same Type), (iii) may be repaid and reborrowed in accordance with the
provisions hereof and shall be repaid in full on the Revolving Credit Maturity Date, (iv) for any
such Lender at any time, shall not result in such Lender’s Revolving Credit Exposure at such time
exceeding such Lender’s Revolving Credit Commitment at such time and (v) after giving effect
thereto and to the application of the proceeds thereof, shall not result at any time in the
aggregate amount of the Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit
Commitment then in effect. As of the Closing Date, the Total Revolving Credit Commitment will be
$200,000,000.
(b) The Borrower shall use the Letters of Credit and the proceeds from the Revolving Credit
Loans for general corporate purposes of the Borrower and its Subsidiaries (including to finance
acquisitions); provided that, notwithstanding any of the foregoing, none of the proceeds from
Revolving Credit Loans may be used to finance any Hostile Take-Over Bid.
2.2 Minimum Amount of Each Borrowing; Maximum Number of Borrowings.
The aggregate principal amount of each Borrowing of Revolving Credit Loans shall be in a
multiple of $100,000 and shall not be less than the Minimum Borrowing Amount. More than one
Borrowing may be incurred on any date; provided that at no time shall there be outstanding more
than 15 Borrowings of LIBOR Loans under this Agreement.
2.3 Notice of Borrowing.
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(a) Whenever the Borrower desires to incur Revolving Credit Loans hereunder (other than
Borrowings to repay Unpaid Drawings), it shall give the Administrative Agent at an office of the
Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but
initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)), (i) a
written Notice of Borrowing (or telephonic notice promptly confirmed in writing) prior to 12:00
noon (New York time) at least three Business Days prior to the proposed day of each Borrowing of
LIBOR Loans and (ii) a written Notice of Borrowing (or telephonic notice promptly confirmed in
writing) prior to 10:00 a.m. (New York time) on the proposed day of each
Borrowing of ABR Loans. Each such Notice of Borrowing, except as otherwise expressly provided
in Section 2.10, shall be irrevocable and shall specify (i) the aggregate principal amount
of the Revolving Credit Loans to be made pursuant to such Borrowing, (ii) the date of Borrowing
(which shall be a Business Day), (iii) whether the Borrowing shall consist of ABR Loans or LIBOR
Loans, (iv) if such Borrowing shall consist of LIBOR Loans, the LIBOR Period to be initially
applicable thereto and (v) the number and location of the account to which funds are to be
disbursed. The Administrative Agent shall promptly give each Lender written notice (or telephonic
notice promptly confirmed in writing) of each proposed Borrowing of Revolving Credit Loans, of such
Lender’s proportionate share thereof and of the other matters covered by the related Notice of
Borrowing.
(b) Borrowings to reimburse Unpaid Drawings shall be made upon the notice specified in
Section 3.4(c).
(c) Without in any way limiting the obligation of the Borrower to confirm in writing any
notice it may give hereunder by telephone, the Administrative Agent may act prior to receipt of
written confirmation without liability upon the basis of such telephonic notice believed by the
Administrative Agent in good faith to be from an Authorized Officer of the Borrower. In each such
case the Borrower hereby waives the right to dispute the Administrative Agent’s record of the terms
of any such telephonic notice.
2.4 Disbursement of Funds.
(a) No later than 12:00 Noon (New York time) on the date specified in each Notice of
Borrowing, each Lender will make available its pro rata portion, if any, of each Borrowing
requested to be made on such date in the manner provided below.
(b) Each Lender shall make available all amounts it is to fund under any Borrowing in
immediately available funds to the Administrative Agent at an office of the Administrative Agent
from time to time notified by the Administrative Agent to the Lenders (but initially the office set
forth for the Administrative Agent in Section 12.2(a)(ii)), and the Administrative Agent
will (except in the case of Borrowings to repay Unpaid Drawings) make available to the Borrower by
depositing such funds as specified in the applicable Notice of Borrowing, the aggregate of the
amounts so made available. Unless the Administrative Agent shall have been notified by any Lender
prior to the date of any such Borrowing that such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, the
Administrative Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation
17
to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not in fact made available to the
Administrative Agent by such Lender and the Administrative Agent has made available same to the
Borrower, the Administrative Agent shall be entitled to recover such corresponding amount from such
Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative
Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower, and the
Borrower shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from such Lender or the Borrower, as the
case may be, interest on
such corresponding amount in respect of each day from the date such corresponding amount was
made available by the Administrative Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (i) if paid by such Lender, at
the Federal Funds Effective Rate or (ii) if paid by the Borrower, the then-applicable rate of
interest, calculated in accordance with Section 2.8, for the respective Revolving Credit
Loans.
(c) Nothing in this Section 2.4 shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights that the Borrower may
have against any Lender as a result of any default by such Lender hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other Lender to fulfill its
commitments hereunder).
2.5 Repayment of Loans; Evidence of Debt.
(a) The Borrower shall, for the benefit of the Lenders, on the Revolving Credit Maturity Date,
(i) repay to the Administrative Agent the then-unpaid Revolving Credit Loans and (ii) retire all
other then-outstanding Revolving Credit Exposure.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the Indebtedness of the Borrower to the appropriate lending office of such Lender
resulting from each Revolving Credit Loan made by such lending office of such Lender from time to
time, including the amounts and currency of principal and interest payable and paid to such lending
office of such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to Section 12.6, and
a sub-account for each Lender, in which Register and sub-accounts (taken together) shall be
recorded (i) the amount of each Revolving Credit Loan made hereunder, the Type of each Revolving
Credit Loan made and the LIBOR Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower
and each Lender’s share thereof.
(d) The entries made in the Register and accounts and subaccounts maintained pursuant to
paragraphs (b) and (c) of this Section shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations of the Borrower therein recorded;
provided that the failure of any Lender or the Administrative Agent to maintain such account, such
Register or such subaccount, as applicable, or any error therein, shall not in any manner affect
the obligation of the Borrower to repay (with applicable interest) the Revolving
18
Credit Loans made
to the Borrower by such Lender in accordance with the terms of this Agreement. In the event that
there is an inconsistency between the accounts maintained by a Lender pursuant to Section
2.5(b) and the Register maintained by the Administrative Agent pursuant to Section
12.6, the said Register shall prevail.
(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.
(f) Any Lender may request that Revolving Credit Loans made by it be evidenced by a promissory
note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory
note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Revolving
Credit Loans evidenced by such promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 12.6) be represented by one or more promissory notes
in such form payable to the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
2.6 Changes in Type of Revolving Credit Loan.
(a) The Borrower shall have the option on any Business Day to convert all or a portion equal
to at least the Minimum Borrowing Amount of the outstanding principal amount of Revolving Credit
Loans made to the Borrower of one Type into a Borrowing or Borrowings of another permitted Type or
to continue the outstanding principal amount of any LIBOR Loans as LIBOR Loans for an additional
LIBOR Period; provided that (i) no partial continuation of LIBOR Loans shall reduce the outstanding
principal amount of LIBOR Loans made pursuant to a single Borrowing to less than the Minimum
Borrowing Amount, (ii) ABR Loans may not be converted into LIBOR Loans, if a Default or Event of
Default is in existence on the date of the proposed conversion and the Administrative Agent has or
the Required Lenders have determined in its or their sole discretion not to permit such conversion,
(iii) LIBOR Loans may not be continued as LIBOR Loans for an additional LIBOR Period if a Default
or Event of Default is in existence on the date of the proposed continuation and the Administrative
Agent has or the Required Lenders have determined in its or their sole discretion not to permit
such continuation, (iv) no LIBOR Period in excess of one month may be selected for any LIBOR Loan
if a Default or Event of Default is in existence on the date of the proposed continuation and the
Administrative Agent has or the Required Lenders have determined in its or their sole discretion
not to permit such longer LIBOR Period, (v) Borrowings resulting from continuations or conversions
pursuant to this Section 2.6 shall be limited in number as provided in Section 2.2
and (vi) the outstanding principal amount of a Revolving Credit Loan of one Type may not be
converted into a Borrowing of another permitted Type until the end of the current LIBOR Period for
such Revolving Credit Loan. Each such continuation or conversion shall be effected by the Borrower
by giving the Administrative Agent at the location set forth in Section 12.2 prior to 12:00
Noon (New York time) at least three Business Days’ prior written notice substantially in the form
of Exhibit B (or telephonic notice promptly confirmed in writing) (each a “Notice of
Continuation”) specifying the Revolving Credit Loans to be so continued or converted, the Type of
Revolving Credit
19
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 2.6
shall not be construed to permit the Borrower to change the currency of any Borrowing.
(b) If any Default or Event of Default is in existence at the time of any proposed
continuation of any LIBOR Loans and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such continuation, such LIBOR Loans shall
be automatically converted on the last day of the current LIBOR Period into ABR Loans.
(c) If upon the expiration of any LIBOR Period, the Borrower has failed to elect a new LIBOR
Period to be applicable thereto as provided in paragraph (a) above, the Borrower shall be deemed to
have elected to convert such Borrowing of LIBOR Loans, as the case may be, into a Borrowing of ABR
Loans, as the case may be, effective as of the expiration date of such current LIBOR Period.
2.7 Pro Rata Borrowings.
Each Borrowing of Revolving Credit Loans under this Agreement shall be made by the Lenders pro
rata on the basis of their then-applicable Revolving Credit Commitment Percentage; provided that
the Administrative Agent may adjust the proportions of the Lenders with respect to any Borrowing to
be made by such Lenders to ensure that no Lender’s Revolving Credit Exposure (after granting its
portion of such Borrowing) exceeds its Revolving Credit Commitment. It is understood that no Lender
shall be responsible for any default by any other Lender in its obligation to make Revolving Credit
Loans hereunder and that each Lender shall be obligated to make the Revolving Credit Loans provided
to be made by it hereunder, regardless of the failure of any other Lender to fulfill its
commitments hereunder.
2.8 Interest and Fees.
(a) The unpaid principal amount of each ABR Loan shall bear interest from the date of the
Borrowing thereof until maturity (whether by acceleration or otherwise and both before and after
default and judgment) at a rate per annum that shall at all times be equal to the Applicable Margin
for ABR Loans plus the ABR in effect from time to time.
(b) The unpaid principal amount of each LIBOR Loan shall bear interest from the date of the
Borrowing thereof until maturity (whether by acceleration or otherwise and both before and after
default and judgment) at a rate per annum that shall at all times be equal to the Applicable Margin
for LIBOR Loans plus the relevant LIBOR.
(c) If all or a portion of (i) the principal amount of any Revolving Credit Loan or (ii) any
interest thereon or fees payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per
annum that is (x) in the case of overdue principal, equal to the rate that would otherwise be
applicable thereto plus, to the extent permitted by applicable law, 2.00% (after as well as before
maturity and judgment), (y) in the case of any overdue interest with respect to any Revolving
20
Credit Loan, equal to the rate of interest applicable to such Revolving Credit Loan plus, to the
extent permitted by applicable law, 2.00%, or (z) in the case of any overdue fees or other amounts
owing hereunder, equal to the rate of interest then applicable to Revolving Credit Loans maintained
as ABR Loans plus 2.00%, in each case from and including the date of such 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.
(d) Interest on each Revolving Credit Loan shall accrue from and including the date such
Revolving Credit Loan is made to but excluding the date of any repayment thereof and shall, except
as otherwise provided pursuant to Section 2.8(c), be payable (i) in respect of each ABR
Loan, quarterly in arrears on the last Business Day of each of March, June, September and December
(for the three-month period (or portion thereof) ended on such day), (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 and (iii) in respect of each Revolving Credit Loan on any payment or prepayment (on
the amount paid or prepaid), at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.
(e) All computations of interest hereunder shall be made in accordance with Section
5.4.
(f) The Administrative Agent, upon determining the interest rate for any Borrowing of LIBOR
Loans, shall promptly notify the 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 the Borrower gives a Notice of Borrowing or Notice of Continuation in respect of
the making of, or conversion into or continuation as, a Borrowing of LIBOR Loans prior to 10:00
a.m. (New York time) on the third Business Day prior to the applicable date of making or conversion
or continuation of such LIBOR Loans, the Borrower shall have the right to elect by giving the
Administrative Agent written notice of (or telephonic notice promptly confirmed in writing) the
LIBOR Period applicable to such Borrowing, which LIBOR Period shall, at the option of the Borrower,
be two weeks or one, two, three or six months. Notwithstanding anything to the contrary contained
above:
(a) the initial LIBOR Period for any Borrowing of LIBOR Loans shall commence on the
date of such Borrowing (including the date of any conversion from a Borrowing of ABR Loans)
and each LIBOR Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding LIBOR Period expires;
(b) if any LIBOR Period relating to a Borrowing of LIBOR Loans begins on the last
Business Day of a calendar month or begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such LIBOR Period,
21
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) the Borrower shall not be entitled to elect any LIBOR Period in respect of any
LIBOR Loan if such LIBOR Period would extend beyond the Revolving Credit Maturity Date.
2.10 Increased Costs, Illegality, etc.
(a) In the event that any Lender shall have reasonably determined (which determination shall,
absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining LIBOR for a Borrowing of LIBOR Loans for any LIBOR
Period that by reason of any changes arising on or after the date hereof affecting the
London interbank market (x) deposits in Dollars in the principal amounts of the Revolving
Credit Loans comprising such Borrowing are not readily available to such Lender in the
London interbank market or (y) adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of LIBOR; or
(ii) at any time, that such Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any Revolving Credit Loans (other
than any such increase or reduction attributable to (A) Taxes, (B) Other Taxes or (C) taxes
excluded by Section 5.3(a)(i)) 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 or
the imposition of any tax on the Administrative Agent or any Lender on its loans, loan
principal, letters of credit, commitments, or other obligations, or its deposits, reserves,
other liabilities or capital attributable thereto), and/or (y) with respect to LIBOR Loans
only, other circumstances affecting the London interbank market; or
(iii) at any time, that the making or continuance of any LIBOR Loan has become unlawful
by compliance by such Lender in good faith with any law, governmental rule, regulation,
guideline or order (or would conflict with any such governmental rule, regulation, guideline
or order not having the force of law even though
22
the failure to comply therewith would not
be unlawful), or has become impracticable as a result of a contingency occurring after the
date hereof that materially and adversely affects the London interbank market;
then, and in any such event, such Lender shall within a reasonable time thereafter give notice (if
by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to each of the other
Lenders). Thereafter (x) in the case of clause (i) above, LIBOR Loans shall no longer be available
from such Lender (and such Lender’s obligation to make such Revolving Credit Loans shall be
suspended) until such time as such Lender notifies the Administrative Agent, the Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer
exist (which notice such Lender agrees to give at such time when such circumstances no longer
exist), and any Notice of Borrowing or Notice of Continuation given by the Borrower with respect to
LIBOR Loans that have not yet been incurred shall be deemed, with respect to such Lender only, to
be a Notice of Borrowing or Notice of Continuation for ABR Loans, (y) in the case of clause (ii)
above, the Borrower shall pay to such Lender, promptly after receipt of written demand therefor,
such additional amounts (in the form of an increased rate of, or a different method of calculating,
interest or otherwise as such Lender in its reasonable discretion shall determine) as shall be
required to compensate such Lender for such increased costs or reductions in amounts receivable
hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender,
showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by
such Lender shall, absent clearly demonstrable error, be final and conclusive and binding upon all
parties hereto) other than any such increase or reduction attributable to taxes and (z) in the case
of clause (iii) above, the Borrower shall take one of the actions specified in Section
2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any LIBOR Loan is affected by the circumstances described in Section
2.10(a)(ii) or 2.10(a)(iii), the Borrower may (and in the case of a LIBOR Loan affected
pursuant to Section 2.10(a)(iii) shall) either (i) if the affected LIBOR Loan is then being
made pursuant to a Credit Event or Borrowing by way of conversion into a LIBOR Loan, cancel said
Credit Event or Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly
in writing) thereof on the same date that the Borrower was notified by a Lender pursuant to
Section 2.10(a)(ii) or 2.10(a)(iii), or (ii) if the affected LIBOR Loan is then
outstanding, upon at least three Business Days notice to the Administrative Agent, require the
affected Lender to convert each such LIBOR Loan into an ABR Loan; provided that if more than one
Lender is affected at any time, then all affected Lenders must be treated in the same manner
pursuant to this Section 2.10(b).
(c) If, after the date hereof, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, or compliance by a Lender or its parent with
any request or directive made or adopted after the date hereof regarding capital adequacy (whether
or not having the force of law) of any such Governmental Authority, has or would have the effect of
reducing the rate of return on such Lender’s or its parent’s capital or assets as a consequence of
such Lender’s commitments or obligations hereunder to a level below that which such Lender or its
parent could have achieved but for such adoption, effectiveness, change or
23
compliance (taking into
consideration such Lender’s or its parent’s policies with respect to capital adequacy), then from
time to time, promptly after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender
or its parent for such reduction, it being understood and agreed, however, that a Lender shall not
be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any
request or directive to comply with, any such law,
rule or regulation as in effect on the date hereof. Each Lender, upon determining in good
faith that any additional amounts will be payable pursuant to this Section 2.10(c), will
give prompt written notice thereof to the Borrower, which notice shall set forth in reasonable
detail the basis 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 the Borrower’s
obligations to pay additional amounts pursuant to this Section 2.10(c) upon receipt of such
notice.
(d) For purposes of this Section 2.10, and notwithstanding anything herein to the
contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests,
rules, requirements, guidelines and directives thereunder or issued in connection therewith or in
implementation thereof and (ii) all requests, rules, guidelines, requirements and directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign regulatory authorities, in
each case pursuant to Basel III, shall in each case shall be deemed to have been enacted, adopted
and issued after the date hereof, regardless of the date enacted, adopted, issued or implemented.
2.11 Compensation.
If (a) any payment of principal of any LIBOR Loan, or any continuation of any LIBOR Loan, is
made by the Borrower (or a replacement Lender in the case of Section 12.7) to or for the
account of a Lender other than on the last day of the LIBOR Period pursuant to Section 2.5,
2.6, 2.10, 5.1 or 12.7, as a result of acceleration of the maturity
of the Revolving Credit Loans pursuant to Article 10 or for any other reason, (b) any
Borrowing of LIBOR Loans is not made as a result of a withdrawn Notice of Borrowing, (c) any ABR
Loan is not converted into a LIBOR Loan as a result of a withdrawn Notice of Continuation, (d) any
LIBOR Loan is not continued as a LIBOR Loan as a result of a withdrawn Notice of Continuation or
(e) any prepayment of principal of any LIBOR Loan is not made as a result of a withdrawn notice of
prepayment pursuant to Section 5.1, the Borrower shall, after receipt of a written request
by such Lender (which request shall set forth in reasonable detail the basis for requesting such
amount), pay to the Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that such Lender may reasonably
incur as a result of such payment, failure to convert, failure to continue or failure to prepay,
including any loss, cost or expense (excluding loss of anticipated profits) actually incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund
or maintain such LIBOR Loan.
2.12 Change of Lending Office.
If any Lender requests compensation under Section 2.10, or if the Borrower is required
to pay any additional amount to any
24
Lender or any Governmental Authority for the account of any
Lender pursuant to Section 5.3, then such Lender shall, if requested by the Borrower, use
reasonable efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.10 or 5.3, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not
otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.
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 Defaulting Lenders.
Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a
Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of
such Defaulting Lender pursuant to Section 4.1; and
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender
shall not be included in determining whether all Lenders or the Required Lenders have taken or may
take any action hereunder (including any consent to any amendment or waiver pursuant to Section
12.1; provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the
case of an amendment, waiver or other modification requiring the consent of such Lender or each
Lender affected thereby;
(c) if any Letter of Credit Exposure exists at the time such Lender becomes a Defaulting
Lender then:
(i) so long as (x) the conditions set forth in Section 6.2 are satisfied at the
time of reallocation (and, unless the Borrower shall have otherwise notified the
Administrative Agent at such time, the Borrower shall be deemed to have represented and
warranted that such conditions are satisfied at such time) and (y) no Default shall be
continuing, all or any part of the Letter of Credit Exposure of such Defaulting Lender shall
be reallocated among the non-Defaulting Lenders in accordance with their respective
Revolving Credit Commitment Percentages but only to the extent the sum of all non-Defaulting
Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s
25
Letter of Credit Exposure
does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Borrower shall within one (1) Business Day following notice by the
Administrative Agent cash collateralize for the benefit of the Letter of Credit Issuer only
the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit
Exposure (after giving effect to any partial reallocation pursuant to clause (i)
above) in accordance with the procedures set forth in Section 10.10 for so long as such
Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s
Letter of Credit Exposure pursuant to clause (ii) above, the Borrower shall not be required
to pay any fees to such Defaulting Lender (or the Administrative Agent or any other Lender)
pursuant to Section 4.1(b) with respect to such Defaulting Lender’s Letter of Credit
Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash
collateralized;
(iv) if the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated
pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section
4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’
Revolving Credit Commitment Percentage; and
(v) if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is
neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then,
without prejudice to any rights or remedies of the Letter of Credit Issuer or any other
Lender hereunder, all letter of credit fees payable under Section 4.1(b) with respect to
such Defaulting Lender’s Letter of Credit Exposure shall be payable to the Letter of Credit
Issuer (and not to such Defaulting Lender) until and to the extent that such Letter of
Credit Exposure is reallocated and/or cash collateralized; and
(d) So long as such Lender is a Defaulting Lender, the Letter of Credit Issuer shall not be
required to issue, amend or increase any Letter of Credit, unless it is satisfied that the
Defaulting Lender’s then outstanding Letter of Credit Exposure will be 100% covered by the
Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided
by the Borrower in accordance with Section 2.14(c), and participating interests in any such newly
issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner
consistent with Section 2.14(c)(i) (and such Defaulting Lender shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Letter of Credit Issuer
each agrees in writing that a Defaulting Lender has adequately remedied all matters that caused
such Lender to be a Defaulting Lender, then the Letter of Credit Exposure of the Lenders shall be
readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date
such Lender shall purchase at par such of the Revolving Credit Loans of the other Lenders as the
Administrative Agent shall determine may be necessary in order for such Lender
26
to hold such Loans
in accordance with its Revolving Credit Commitment Percentage, whereupon such Lender shall cease to
be a Defaulting Lender.
ARTICLE 3
LETTERS OF CREDIT
LETTERS OF CREDIT
3.1 Letters of Credit.
(a) Subject to and upon the terms and conditions herein set forth, the Borrower, at any time
and from time to time on or after the Closing Date and prior to the L/C Maturity Date, may request
that the Letter of Credit Issuer issue, for the account of the Borrower, a standby letter of credit
or letters of credit (in such form as may be approved by the Letter of Credit Issuer in its
reasonable discretion) which is participated by the Letter of Credit Issuer pursuant to Section
3.3 (each such letter of credit, a “Letter of Credit”). Notwithstanding the foregoing, the
letters of credit identified on Schedule V (the “Existing L/Cs”) shall be deemed to be a
“Letter of Credit” issued on the Closing Date for all purposes of this Agreement.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount
of which, when added to the sum of (x) the Letter of Credit Outstanding at such time and (y) the
aggregate principal of all Revolving Credit Loans then outstanding would exceed the Total Revolving
Credit Commitment then in effect (it being understood that if no Revolving Credit Loans are then
outstanding, the Letter of Credit Outstanding (calculated giving effect to the Stated Amount of
such proposed Letter of Credit) may equal, but in no event shall exceed, the Total Revolving Credit
Commitment then in effect); (ii) each Letter of Credit shall have an expiry date occurring no later
than one year after the date of issuance thereof; provided that in no event shall such expiry date
occur later than the L/C Maturity Date; (iii) each Letter of Credit shall be denominated in Dollars
and shall provide for drawings thereunder to be made in Dollars; and (iv) no Letter of Credit shall
be issued by the Letter of Credit Issuer after it has received a written notice from the Borrower
or any Lender stating that a Default or Event of Default has occurred and is continuing until such
time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such
notice from the party or parties originally delivering such notice (provided that in the case of
any such notice delivered by the Borrower, the Administrative Agent has not objected to or
contested such rescission) or (y) the waiver of such Default or Event of Default in accordance with
the provisions of Section 12.1.
3.2 Letter of Credit Requests and Information to Administrative Agent.
(a) Whenever the Borrower desires that a Letter of Credit be issued for its account, it shall
give the Administrative Agent and the Letter of Credit Issuer at least three (or such lesser number
as may be agreed upon by the Administrative Agent and the Letter of Credit Issuer) Business Days’
written notice thereof. Each notice shall be executed by the Borrower and shall be in the form of
Exhibit C (each a “Letter of Credit Request”). The Administrative Agent shall promptly
transmit copies of each Letter of Credit Request to each Lender.
27
(b) The making of each Letter of Credit Request shall be deemed to be a representation and
warranty by the Borrower that the Letter of Credit may be issued in accordance with, and will not
violate the requirements of, Section 3.1(b).
(c) The Letter of Credit Issuer shall, as soon as practicable following the issuance,
cancellation or termination of any Letter of Credit, provide a copy of such Letter of Credit,
cancellation or termination to the Administrative Agent.
3.3 Letter of Credit Participations.
(a) Immediately upon the issuance by the Letter of Credit Issuer of any Letter of Credit, the
Letter of Credit Issuer shall be deemed to have sold and transferred to each other Lender that has
a Revolving Credit Commitment (each such other Lender, in its capacity under this Section
3.3, an “L/C Participant”), and each such L/C Participant shall be deemed irrevocably and
unconditionally to have purchased and received from the Letter of Credit Issuer, without recourse
or warranty, an undivided interest and participation (each an “L/C Participation”), to the extent
of such L/C Participant’s Revolving Credit Commitment Percentage from time to time, in such Letter
of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of
the Borrower under this Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto (although the Letter of Credit Fee will be paid directly to the Administrative
Agent for the ratable account of the L/C Participants as provided in Section 4.1(b) and the
L/C Participants shall have no right to receive any portion of any Fronting Fees).
(b) In determining whether to pay under any Letter of Credit, the Letter of Credit Issuer
shall have no obligation relative to the L/C Participants other than to confirm that any documents
required to be delivered under such Letter of Credit have been delivered and that they appear to
comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to
be taken by the Letter of Credit Issuer under or in connection with any Letter of Credit issued by
it, unless taken or omitted through its gross negligence or willful misconduct as determined by a
final judgment of a court of competent jurisdiction, shall not create for the Letter of Credit
Issuer any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any payment under any Letter of Credit
issued by it and the Borrower shall not have repaid the amount in full to the Letter of Credit
Issuer pursuant to Section 3.4(a), the Letter of Credit Issuer shall promptly notify the
Administrative Agent (who shall in turn promptly notify each L/C Participant) of the failure, and
each L/C Participant shall promptly and unconditionally pay to the Administrative Agent, for the
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
28
of the Letter of
Credit Issuer, the L/C Participant agrees to pay to the Administrative Agent for the account of the
Letter of Credit Issuer, forthwith on demand, the amount, together with interest thereon for each
day from the date until the date the amount is paid to the Administrative Agent for the account of
the Letter of Credit Issuer at the Federal Funds Effective Rate. The failure of any L/C Participant
to make available to the Administrative Agent for the account of a Letter of Credit Issuer the L/C
Participant’s Revolving Credit Commitment Percentage of any payment under any Letter of Credit
shall not relieve any other L/C Participant of its obligation hereunder to make available to the
Administrative Agent for the account of the Letter of Credit Issuer the other L/C Participant’s
Revolving Credit Commitment Percentage of any payment under the Letter of Credit on the date
required, as specified above, but no L/C Participant shall
be responsible for the failure of any other L/C Participant to make available to the
Administrative Agent the other L/C Participant’s Revolving Credit Commitment Percentage of the
payment. Notwithstanding the foregoing, the Administrative Agent shall be entitled to adjust the
proportions of any of the foregoing amounts required to be paid by the L/C Participants to ensure
that no L/C Participant’s Revolving Credit Exposure exceeds its Revolving Credit Commitment.
(d) Whenever the Letter of Credit Issuer receives a payment in respect of an unpaid
reimbursement obligation as to which the Administrative Agent has received for the account of the
Letter of Credit Issuer any payments from the L/C Participants pursuant to paragraph (c) above, the
Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each L/C Participant that has paid its applicable portion of such reimbursement
obligation, in Dollars and in same day funds, an amount equal to such L/C Participant’s share
(based upon the proportionate aggregate amount originally funded by such L/C Participant to the
aggregate amount funded by all L/C Participants) of the principal amount of such reimbursement
obligation and interest thereon accruing after the purchase of the respective L/C Participations.
(e) The obligations of the L/C Participants to make payments to the Administrative Agent for
the account of the Letter of Credit Issuer with respect to Letters of Credit issued by it shall be
irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or
exception whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement;
(ii) the existence of any claim, set-off, defense or other right that the Borrower may
have at any time against a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee may be acting), the
Administrative Agent, the Letter of Credit Issuer, any Lender or other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction between the Borrower and
the beneficiary named in any such Letter of Credit);
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(iii) any draft, certificate or any other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of
any of the terms of this Agreement; or
(v) the occurrence of any Default or Event of Default;
provided that no L/C Participant shall be obligated to pay to the Administrative Agent for the
account of the Letter of Credit Issuer such L/C Participant’s Revolving Credit Commitment
Percentage of any unreimbursed amount arising from any wrongful payment made by the Letter of
Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit Issuer as determined by a final
judgment of a court of competent jurisdiction.
3.4 Agreement to Repay Letter of Credit Drawings.
(a) The Borrower hereby agrees to reimburse the Letter of Credit Issuer, by making payment to
the Administrative Agent in Dollars in immediately available funds at the office of the
Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but
initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)), for
any payment or disbursement made by the Letter of Credit Issuer under any Letter of Credit (each
such amount so paid until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on
the date of, such payment, with interest on the amount so paid or disbursed by the Letter of Credit
Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on the date of such payment
or disbursement, from and including the date paid or disbursed to but excluding the date the Letter
of Credit Issuer is reimbursed therefor, at a rate per annum that shall at all times be 2% above
the Applicable Margin for Revolving Credit Loans plus the ABR as in effect from time to time.
(b) The Borrower’s obligations under this Section 3.4 to reimburse the Letter of
Credit Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment that the Borrower or any other Person may have or have had
against the Letter of Credit Issuer, the Administrative Agent or any Lender (including in its
capacity as an L/C Participant), including any defense based upon the failure of any drawing under
a Letter of Credit (each a “Drawing”) to conform to the terms of the Letter of Credit, any
nonapplication or misapplication by the beneficiary of the proceeds of such Drawing or any of the
circumstances described in Sections 3.3(e)(i) to 3.3(e)(v), inclusive; provided
that the Borrower shall not be obligated to reimburse the Letter of Credit Issuer for any wrongful
payment made by the Letter of Credit Issuer under the Letter of Credit issued by it as a result of
acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of
Credit Issuer as determined by a final judgment of a court of competent jurisdiction.
(c) Each payment by the Letter of Credit Issuer under any Letter of Credit shall constitute a
request by the Borrower for a Revolving Credit Loan, subject to Section 6.2, in the
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amount
of the Unpaid Drawing in respect of such Letter of Credit. The Letter of Credit Issuer shall notify
the Borrower and the Administrative Agent, by 10:00 a.m. (New York time) on any Business Day on
which the Letter of Credit Issuer intends to honor a drawing under a Letter of Credit, of (i) the
Letter of Credit Issuer’s intention to honor such drawing and (ii) the amount of such drawing.
Unless instructed by the Borrower by 10:30 a.m. (New York time) on such Business Day that it
intends to reimburse the Letter of Credit Issuer for the amount of such drawing with funds other
than the proceeds of Loans, the Administrative Agent shall promptly notify each Lender of such
drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Lender
shall be irrevocably obligated to make ABR Loans to the Borrower in the amount of such Lender’s
Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York
time) on such Business Day by making the amount of such Revolving Credit Loan available to the
Administrative Agent at the office of the Administrative Agent from time to time notified by the
Administrative Agent to the
Borrower (but initially the office set forth for the Administrative Agent in Section
12.2(a)(ii)). Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing
Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for
the purpose of reimbursing the Letter of Credit Issuer for the related Unpaid Drawing.
3.5 Increased Costs.
If after the date hereof, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or administration
thereof, or actual compliance by the Letter of Credit Issuer or any L/C Participant with any
request or directive made or adopted after the date hereof (whether or not having the force of
law), by any such authority, central bank or comparable agency shall either (a) impose, modify or
make applicable any reserve, deposit, capital adequacy or similar requirement against letters of
credit issued by the Letter of Credit Issuer, or any L/C Participant’s L/C Participation therein,
or (b) impose on the Letter of Credit Issuer or any L/C Participant any other conditions affecting
its obligations under this Agreement in respect of Letters of Credit or L/C Participations therein
or any Letter of Credit or such L/C Participant’s L/C Participation therein; and the result of any
of the foregoing is to increase the cost to the Letter of Credit Issuer or such L/C Participant of
issuing, maintaining or participating in such Letter of Credit, or to reduce the amount of any sum
received or receivable by the Letter of Credit Issuer or such L/C Participant hereunder (other than
any such increase or reduction attributable to taxes) in respect of Letters of Credit or any L/C
Participations therein, then, promptly after receipt of written demand to the Borrower by the
Letter of Credit Issuer or such L/C Participant, as the case may be (a copy of which notice shall
be sent by the Letter of Credit Issuer or such L/C Participant to the Administrative Agent), the
Borrower shall pay to the Letter of Credit Issuer or such L/C Participant such additional amount or
amounts as will compensate the Letter of Credit Issuer or such L/C Participant for such increased
cost or reduction, it being understood and agreed, however, that neither the Letter of Credit
Issuer nor any L/C Participant shall be entitled to such compensation as a result of such Person’s
compliance with, or pursuant to any request or directive to comply with, any such law, rule or
regulation as in effect on the date hereof. A certificate submitted to the Borrower by the Letter
of Credit Issuer or any L/C Participant, as the case may be (a copy of which certificate shall be
sent by the Letter of Credit Issuer or such L/C Participant to the Administrative Agent), setting
forth in reasonable detail the basis for the
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determination of such additional amount or amounts
necessary to compensate the Letter of Credit Issuer or such L/C Participant as aforesaid shall be
conclusive and binding on the Borrower absent clearly demonstrable error.
For purposes of this Section 3.5, and notwithstanding anything herein to the contrary, (i) the
Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, requirements,
guidelines and directives thereunder or issued in connection therewith or in implementation thereof
and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for
International Settlements, the Basel Committee on Banking Supervision (or any successor or similar
authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel
III, shall in each case shall be deemed to have been enacted, adopted and issued after the date
hereof, regardless of the date enacted, adopted, issued or implemented.
3.6 Successor Letter of Credit Issuer.
The Letter of Credit Issuer may resign as the Letter of Credit Issuer upon 60 days’ prior
written notice to the Administrative Agent, the Lenders and the Borrower. If the Letter of Credit
Issuer shall resign as the Letter of Credit Issuer under this Agreement, then the Borrower shall
appoint from among the Lenders with Revolving Credit Commitments a successor issuer of Letters of
Credit, whereupon such successor issuer shall succeed to the rights, powers and duties of the
Letter of Credit Issuer, and the term “Letter of Credit Issuer” shall mean such successor issuer
effective upon such appointment. At the time such resignation shall become effective, the Borrower
shall pay to the resigning Letter of Credit Issuer all accrued and unpaid fees pursuant to
Sections 4.1(c) and 4.1(d). The acceptance of any appointment as the Letter of
Credit Issuer hereunder by a successor Lender shall be evidenced by an agreement entered into by
such successor, in a form satisfactory to the Borrower and the Administrative Agent and, from and
after the effective date of such agreement, such successor Lender shall have all the rights and
obligations of the previous Letter of Credit Issuer under this Agreement. After the resignation of
the Letter of Credit Issuer hereunder, the resigning Letter of Credit Issuer shall remain a party
hereto and shall continue to have all the rights and obligations of the Letter of Credit Issuer
under this Agreement with respect to Letters of Credit issued by it prior to such resignation, but
shall not be required to issue additional Letters of Credit. After any retiring Letter of Credit
Issuer’s resignation as Letter of Credit Issuer, the provisions of this Agreement relating to the
Letter of Credit Issuer shall inure to its benefit as to any actions taken or omitted to be taken
by it (a) while it was the Letter of Credit Issuer under this Agreement or (b) at any time with
respect to Letters of Credit issued by the Letter of Credit Issuer.
ARTICLE 4
FEES; COMMITMENTS
FEES; COMMITMENTS
4.1 Fees.
(a) The Borrower agrees to pay to the Administrative Agent, for the account of each Lender (in
each case pro rata according to the respective Available Revolving Credit Commitments of all such
Lenders), a commitment fee for each day from and including the Closing Date to but excluding the
Revolving Credit Maturity Date on the average daily closing
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balances of the unused amount of the
Total Revolving Credit Commitment. Such commitment fee shall be payable in arrears (i) on the last
Business Day of each of March, June, September and December (for the three-month period (or portion
thereof) ended on such day) and (ii) on the Revolving Credit Maturity Date (for the period ended on
such date for which no payment has been received pursuant to clause (i) above), and shall be
computed during such period at the Commitment Fee Rate on the average daily closing balances of the
unused amount of the Total Revolving Credit Commitment. Notwithstanding the foregoing, the Borrower
shall not be obligated to pay any amounts to any Defaulting Lender pursuant to this Section
4.1.
(b) The Borrower agrees to pay to the Administrative Agent, for the account of the Lenders pro
rata on the basis of their respective Letter of Credit Exposure, a fee in respect of each Letter of
Credit (the “Letter of Credit Fee”), for the period from and including the date of issuance of such
Letter of Credit to, but not including, the termination date of such Letter of Credit computed
during such period at a per annum rate equal to the Applicable Margin then in
effect for Revolving Credit Loans that are LIBOR Loans on the average daily Stated Amount of
such Letter of Credit. Such Letter of Credit Fees shall be due and payable quarterly in arrears on
the last Business Day of each of March, June, September and December (for the three-month period
(or portion thereof) ended on such day) and on the date upon which the Total Revolving Credit
Commitment terminates and the Letters of Credit Outstanding shall have been reduced to zero.
(c) The Borrower agrees to pay directly to the Letter of Credit Issuer a fee in respect of
each Letter of Credit issued by it (the “Fronting Fee”), for the period from and including the date
of issuance of such Letter of Credit to but not including the termination date of such Letter of
Credit, computed during such period at a per annum rate equal to a rate mutually agreed upon
between the Borrower and the Letter of Credit Issuer on the average daily Stated Amount of such
Letter of Credit. Such Fronting Fees shall be due and payable quarterly in arrears on the last
Business Day of each of March, June, September and December (for the three-month period (or portion
thereof) ended on such day) and on the date upon which the Total Revolving Credit Commitment
terminates and the Letters of Credit Outstanding shall have been reduced to zero.
(d) The Borrower agrees to pay directly to the Letter of Credit Issuer upon each renewal of,
drawing under and/or amendment of a Letter of Credit issued by it such amount as the Letter of
Credit Issuer and the Borrower may agree upon for issuances or renewal or drawings under or
amendments of letters of credit issued by it.
(e) The Borrower agrees to pay to the Administrative Agent, for the benefit of the
Administrative Agent, the fees for acting as administrative agent in the amounts and on the dates
previously agreed to in writing by the Borrower and the Administrative Agent, as amended from time
to time by agreement between the Administrative Agent and the Borrower.
(f) The Borrower agrees to pay on the Closing Date to the Arrangers, for the benefit of the
Arrangers, the fees in the amounts previously agreed to in writing by the Borrower and the
Arrangers.
4.2 Voluntary Reduction of Revolving Credit Commitments.
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Upon at least two Business Days’ prior written notice (or telephonic notice promptly confirmed
in writing) to the Administrative Agent (which notice the Administrative Agent shall promptly
transmit to each of the Lenders), the Borrower shall have the right, without premium or penalty, on
any day, to permanently terminate or reduce the Total Revolving Credit Commitment in whole or in
part; provided that (i) any such reduction shall apply proportionately and permanently to reduce
the Revolving Credit Commitment of each of the Lenders, (ii) any partial reduction pursuant to this
Section 4.2 shall be in the amount of at least $1,000,000, (iii) after giving effect to any
such partial reduction of the Total Revolving Credit Commitment, the Total Revolving Credit
Commitment shall be at least $5,000,000 and (iv) after giving effect to such termination or
reduction and to any prepayments of the Revolving Credit Loans made on the date thereof in
accordance with this Agreement, the sum of (A) the aggregate outstanding principal amount of the
Revolving Credit Loans and (B) the Letters of Credit Outstanding shall not exceed the Total
Revolving Credit Commitment.
4.3 Mandatory Termination of Commitments.
The Total Revolving Credit Commitment shall terminate at 2:00 p.m. (New York time) on the
Revolving Credit Maturity Date.
ARTICLE 5
PAYMENTS
PAYMENTS
5.1 Prepayments.
The Borrower shall have the right to prepay any Borrowing, without premium or penalty, in
whole or in part at any time and from time to time. Such prepayment of Revolving Credit Loans shall
be subject to the following conditions: (a) the Borrower shall give the Administrative Agent
written notice (or telephonic notice promptly confirmed in writing) of its intent to make such
prepayment, the amount of such prepayment and (in the case of LIBOR Loans) the specific
Borrowing(s) to be prepaid, which notice shall be given by the Borrower no later than 10:00 a.m.
(New York time) three Business Days prior to the date of such prepayment and shall promptly be
transmitted by the Administrative Agent to each of the Lenders; (b) each partial prepayment of
Revolving Credit Loans shall be in an amount that is a multiple of $100,000 and in an aggregate
principal amount of at least $5,000,000; provided that no partial prepayment of LIBOR Loans
made pursuant to a single Borrowing shall reduce the outstanding LIBOR Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount for LIBOR Loans; and (c) any
prepayment of LIBOR Loans pursuant to this Section 5.1 on any day other than the last day
of a LIBOR Period applicable thereto shall be subject to compliance by the Borrower with the
applicable provisions of Section 2.11; provided further that at the Borrower’s
election in connection with any prepayment pursuant to this Section 5.1, such prepayment
shall not be applied to any Revolving Credit Loan of a Defaulting Lender. Each prepayment of a
Borrowing shall be applied ratably to the Revolving Credit Loans included in the prepaid Borrowing.
5.2 Method and Place of Payment.
(a) Except as otherwise specifically provided herein, all payments to be made by the Borrower
under this Agreement shall be made, without set-off, counterclaim or deduction of any
34
kind, to the
Administrative Agent for, as the case may be, the (i) ratable account of all the Lenders holding
Revolving Credit Loans or (ii) account of each Letter of Credit Issuer, not later than 12:00 Noon
(New York time) on the date when due. Such payments shall be made in immediately available funds at
the office of the Administrative Agent from time to time notified by the Administrative Agent to
the Borrower (but initially the office set forth for the Administrative Agent in Section
12.2(a)(ii)), it being understood that written or facsimile notice by the Borrower to the
Administrative Agent to make a payment from the funds in its account at an office of the
Administrative Agent shall constitute the making of such payment to the extent of such funds held
in such account. The Administrative Agent will thereafter cause to be distributed on the same day
(if payment was actually received by the Administrative Agent prior to 2:00 p.m. (New York time) on
such day, otherwise the next Business Day) like funds relating to the payment of principal or
interest or Fees ratably to the Lenders entitled thereto. A payment shall be deemed to have been
made by the Administrative Agent on the date on which it is required to be made under this
Agreement if the Administrative Agent has, on or before such date, taken steps to make such payment in accordance with the regulations or operating
procedures of the clearing or settlement system used by the Administrative Agent in order to make
such payment.
(b) Any payments under this Agreement that are made later than 2:00 p.m. (New York time) shall
be deemed to have been made on the next succeeding Business Day. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof shall
be extended to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect immediately prior
to such extension.
5.3 Net Payments.
(a) (a) All payments made by the Borrower under this Agreement shall be made free and clear
of, and without deduction or withholding for or on account of, any current or future income, stamp
or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding
(i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any
Lender as a result of a current or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such connection arising solely
from the Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement) (“Taxes”) except to the
extent that such deduction or withholding is required by any applicable law, as modified by the
administrative practice of any relevant Governmental Authority then in effect. If any such Taxes
are required to be withheld from any amounts payable to the Administrative Agent or any Lender
hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full
amount required to be deducted or withheld (including the full amount of
35
Taxes
required to be deducted or withheld from any additional amount paid by the Borrower
to the Administrative Agent or such Lender under this Section 5.3(a);
(C) as promptly as possible thereafter, forward to the Administrative Agent and
such Lender an official receipt (or a certified copy), or other documentation
reasonably acceptable to the Administrative Agent and such Lender, evidencing such
payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment
to which the Administrative Agent or such Lender is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure that the net amount
actually received by the Administrative Agent or such Lender (free and clear of any
such Taxes, whether assessed against the Borrower, the Administrative Agent or such
Lender) will equal the full amount the
Administrative Agent or such Lender would have received had no such deduction
or withholding been required.
(ii) If the Borrower fails to pay to the relevant Governmental Authority when due any
Taxes that it was required to deduct or withhold under this Section 5.3(a) in
respect of any payment to or for the benefit of the Administrative Agent or any Lender under
this Agreement or fails to furnish the Administrative Agent or such Lender, as applicable,
with the documentation referred to in this Section 5.3(a) when required to do so,
the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such
Lender for any incremental taxes, interest, costs or penalties that may become payable by
the Administrative Agent or such Lender as a result of such failure.
(iii) The Borrower’s obligations under this Section 5.3(a) shall survive the
termination of this Agreement and the payment of the Revolving Credit Loans and all other
amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or
pay any additional amounts in respect of withholding tax (including FATCA) applicable to any amount
payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender,
except if any such Revolving Credit Loans were assigned, participated or transferred to such
Non-U.S. Lender at the request of the Borrower or were assigned, participated or transferred to
such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default
pursuant to Section 10.1 or 10.5.
(c) Each Non-U.S. Lender shall:
(i) deliver to the Borrower and the Administrative Agent two copies of either (x) in
the case of a Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”,
United States Internal Revenue Service Form W-8BEN, (together with a certificate
representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the
Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Code) of the Borrower and is not a controlled foreign corporation
36
related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form
W-8BEN or W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on
payments by the Borrower under this Agreement;
(ii) deliver to the Borrower and the Administrative Agent two further copies of any
such form or certification (or any applicable successor form) on or before the date that any
such form or certification expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete such forms or
certifications as may reasonably be requested in writing by the Borrower or the
Administrative Agent;
unless, in any such case, any change in treaty, law or regulation, has occurred prior to the date
on which any such delivery would otherwise be required that renders any such form inapplicable or
would prevent such Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the Borrower and the Administrative Agent. Each Person that shall become a
Participant pursuant to Section 12.6 or a Lender pursuant to Section 12.6 shall,
upon the effectiveness of the related transfer, be required to provide all the forms and statements
required pursuant to this Section 5.3(c), provided that in the case of a Participant such
Participant shall furnish all such required forms and statements to the Lender from which the
related participation shall have been purchased.
(d) If the Borrower determines in good faith that a reasonable basis exists for contesting any
taxes for which indemnification has been demanded hereunder, the relevant Lender or the
Administrative Agent, as applicable, shall cooperate with the Borrower in challenging such taxes at
the Borrower’s expense if so requested by the Borrower. If any Lender or the Administrative Agent,
as applicable, receives a refund of, or credit for, a Tax for which a payment has been made by the
Borrower pursuant to this Agreement, which refund or credit in the good faith judgment of such
Lender or the Administrative Agent, as the case may be, is attributable to such payment made by the
Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse the
Borrower for such amount as the Lender or the Administrative Agent, as the case may be, determines
to be the proportion of the refund or credit as will leave it, after such reimbursement, in no
better or worse position than it would have been in if the payment had not been required. A Lender
or Administrative Agent shall claim any refund or credit that it determines is available to it,
unless it concludes in its reasonable discretion that it would be adversely affected by making such
a claim. Neither such Lender nor the Administrative Agent shall be obliged to disclose any
information regarding its tax affairs or computations to the Borrower in connection with this
paragraph (d) or any other provision of this Section 5.3.
(e) Each Lender shall severally indemnify the Administrative Agent for any taxes (but, in the
case of any Taxes or Other Taxes, only to the extent that the Borrower has not already indemnified
the Administrative Agent for such Taxes or Other Taxes and without
37
limiting the obligation of the
Borrower to do so) attributable to such Lender that are paid or payable by the Administrative Agent
in connection with this Agreement and any reasonable expenses arising therefrom or with respect
thereto, whether or not such taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The indemnity under this Section 5.3(e) shall be paid within ten
(10) days after the Administrative Agent delivers to the applicable Lender a certificate stating
the amount of taxes so paid or payable by the Administrative Agent. Such certificate shall be
conclusive of the amount so paid or payable absent manifest error.
5.4 Computations of Interest and Fees.
(a) All interest and fees hereunder shall be computed on the basis of a year of 360 days,
except that interest computed by reference to the ABR at times when the ABR is based on the prime
rate of the Administrative Agent shall be computed on the basis of a year of 365 days (or 366 days
in a leap year), and in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable ABR or LIBOR rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent manifest error.
(b) All interest payments to be made under this Agreement shall be paid without allowance or
deduction for deemed re-investment or otherwise, both before and after maturity and before and
after default and/or judgment, if any, until payment of the amount on which such interest is
accruing, and interest will accrue on overdue interest, if any.
(c) The amount of costs and expenses required to be paid or reimbursed by the Borrower
pursuant to Section 12.5 or any other provision of this Agreement shall bear interest until
paid, as well after as before demand, default, maturity and judgment, at the highest rate provided
for in Section 2.8(c).
(d) If interest is not paid on the indebtedness of the Borrower to the Lenders hereunder, or
any part thereof, as and when interest is due and payable hereunder, unpaid interest shall bear
interest until paid, as well after as before demand, default, maturity and judgment, at the rates
provided for in Section 2.8(c).
ARTICLE 6
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT
6.1 Conditions Precedent to Initial Effectiveness.
The obligation of each Lender to make any Revolving Credit Loan requested to be made by it on
any date and the obligations of each Letter of Credit Issuer to issue, extend or increase Letters
of Credit shall become effective on the date on which each of the following conditions are
satisfied:
(a) Credit Agreement. The Administrative Agent shall have received this Agreement,
executed and delivered by a duly authorized officer of each of the parties hereto.
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(b) Closing Certificate. The Administrative Agent shall have received a certificate of
the Borrower, dated the Closing Date, substantially in the form of Exhibit D, with
appropriate insertions, executed by the President or any Vice President and the Secretary or
any Assistant Secretary of the Borrower.
(c) Proceedings of the Borrower. The Administrative Agent shall have received a copy
of the resolutions, in form and substance satisfactory to the Administrative Agent, of the
Board of Directors of the Borrower (or a duly authorized committee thereof) authorizing (a)
the execution, delivery and performance of this Agreement (and any agreements relating
thereto) and (b) the extensions of credit contemplated hereunder.
(d) Organic Documents. The Administrative Agent shall have received (i) true and
complete copies of the articles of incorporation and by-laws of the Borrower, (ii) a
certificate of good standing with respect to the Borrower issued by its jurisdiction of
incorporation or organization and (iii) to the extent reasonably requested in writing by any
of the Lenders, all documentation and other information required by bank regulatory
authorities under applicable “know-your-customer” and anti-money laundering rules and
regulations, including the USA PATRIOT Act, at least two Business Days prior to the Closing
Date.
(e) Fees. The Administrative Agent, the Arrangers and the Lenders shall have received
all fees and other amounts due and payable on or prior to the Closing Date, including the
fees referred to in Section 4.1(e) to be received on the Closing Date.
(f) Existing and Successor Credit Agreements. The Administrative Agent shall have
received reasonably satisfactory evidence that:
(i) the Holdings Existing Credit Agreement shall be simultaneously terminated
and all loans and other amounts due and payable thereunder shall have been paid in
full and all letters of credit issued and outstanding thereunder shall have been
terminated, replaced or continued under this Agreement;
(ii) the ITCTransmission/METC Existing Credit Agreement shall be simultaneously
terminated and all loans and other amounts due and payable thereunder shall have
been paid in full and all letters of credit issued and outstanding thereunder shall
have been terminated, replaced or continued under the ITCTransmission Credit
Agreement or the METC Credit Agreement, as applicable;
(iii) the ITCTransmission Credit Agreement shall be effective prior to or
substantially concurrently with the effectiveness of this Agreement; and
(iv) the METC Credit Agreement shall be effective prior to or substantially
concurrently with the effectiveness of this Agreement.
(g) Legal Opinions. The Administrative Agent shall have received in form and substance
reasonably satisfactory to it the executed legal opinions of (i) counsel to
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the Borrower
with respect to the execution and delivery of this Agreement by the Borrower, the validity,
binding effect, legality and enforceability of this Agreement, compliance with certain
applicable law and such other matters as the Administrative Agent may reasonably request in
form and substance satisfactory to the Administrative Agent and (ii) special Michigan
counsel to the Borrower with respect to the status and capacity of the Borrower, the due
authorization of this Agreement, compliance with the Organic Documents of the Borrower and
with certain applicable law and such other matters as the Administrative Agent may
reasonably request in form and substance satisfactory to the Administrative Agent.
(h) Governmental Approvals. The Administrative Agent shall have received evidence that
all governmental approvals necessary in connection with the
transactions contemplated hereby (including, without limitation, approval from the
United States of America Federal Energy Regulatory Commission of the application pursuant to
section 204 of the Federal Power Act) shall have been obtained and are in full force and
effect.
(i) Financial Statements and Projections. The Lenders shall have received (i)
satisfactory audited consolidated financial statements of the Borrower for the fiscal years
ended December 31, 2009 and December 31, 2010, (ii) satisfactory unaudited interim
consolidated financial statements of the Borrower for the quarterly period ended March 31,
2011 and (iii) satisfactory financial statement projections through and including the
Borrower’s 2015 fiscal year (the “Projections”).
6.2 Conditions Precedent to All Credit Events.
The obligation of each Lender to make any Revolving Credit Loan requested to be made by it on
any date (including its initial Revolving Credit Loans) and the obligation of each Letter of Credit
Issuer to issue, extend or increase Letters of Credit on any date is subject to the satisfaction of
the following conditions precedent:
(a) No Default; Representations and Warranties True and Correct. At the time of each
Credit Event and also after giving effect thereto (i) there shall exist no Default or Event
of Default and (ii) all representations and warranties made by the Borrower contained herein
(other than, except in the case of the initial Credit Event, Section 7.14 hereof)
shall be true and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such Credit Event
(except where such representations and warranties expressly relate to an earlier date, in
which case such representations and warranties shall have been true and correct in all
material respects as of such earlier date).
(b) Notice of Borrowing; Letter of Credit Request. Prior to the making of each
Revolving Credit Loan, the Administrative Agent shall have received a Notice of Borrowing
(whether in writing or by telephone) meeting the requirements of Section 2.3. Prior
to the issuance of each Letter of Credit, the Administrative Agent and the Letter of Credit
Issuer shall have received a Letter of Credit Request meeting the requirements of
Section 3.2(a).
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The acceptance of the benefits of each Credit Event shall constitute a representation and
warranty by the Borrower to each of the Lenders that all the applicable conditions specified above
exist as of that time.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to make the Revolving Credit
Loans and issue or participate in Letters of Credit as provided for herein, the Borrower (as to
itself and each of its Subsidiaries) makes the following representations and warranties to, and
agreements with, the Lenders, all of which shall survive the execution and delivery of this
Agreement and the making of the Revolving Credit Loans and the issuance of Letters of Credit.
7.1 Organizational Status.
The Borrower is validly organized and existing and in good standing under the laws of the
state or jurisdiction of its incorporation or organization, is duly qualified to do business and is
in good standing as a foreign entity in each jurisdiction where the nature of its business requires
such qualification (except where the failure to be so qualified could not reasonably be expected to
result in a Material Adverse Effect), and has full power and authority and holds all requisite
governmental licenses, permits and other approvals to enter into and perform its obligations under
this Agreement, to own and hold under lease its property and to conduct its business substantially
as currently conducted by it.
7.2 Capacity, Power and Authority.
The Borrower has the capacity, power and authority to execute, deliver and carry out the terms
and provisions of this Agreement and has taken all necessary action, partnership, corporate or
otherwise, to authorize the execution, delivery and performance of this Agreement. The Borrower has
duly executed and delivered this Agreement and this Agreement constitutes the legal, valid and
binding obligation of the Borrower enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and subject to general principles of equity.
7.3 No Violation.
Neither the execution, delivery nor performance by the Borrower of this Agreement nor
compliance with the terms and provisions thereof and the other transactions contemplated therein
will (a) contravene any applicable provision of any material law, statute, rule, regulation, order,
writ, injunction or decree of any court or Governmental Authority, (b) result in any breach of any
of the terms, covenants, conditions or provisions of, or constitute a default under, or result in
the creation or imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of the Borrower or any of its Subsidiaries pursuant to, the terms of any
material indenture, loan agreement, lease agreement, mortgage, deed of trust, agreement or other
material instrument to which the Borrower or any of its Subsidiaries is a party or by which it or
any of its property or assets is bound or (c) violate any provision of the Borrower’s Organic
Documents.
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7.4 Litigation.
There are no actions, suits or proceedings pending or, to the knowledge of the Borrower or any
of its Subsidiaries (after due internal inquiry), threatened with respect to the Business, the
Borrower or any of its Subsidiaries that could reasonably be expected to result in a Material
Adverse Effect.
7.5 Governmental Approvals.
No order, consent, approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or notice to, any Governmental Authority (other than those that
have been, or on the Closing Date will be, obtained and are in full force and effect) is required
to authorize or is required in connection with (a) the execution, delivery and
performance of this Agreement or (b) the legality, validity, binding effect or enforceability
of this Agreement.
7.6 True and Complete Disclosure.
To the knowledge of the Borrower, after due inquiry:
(a) All written factual information and data (taken as a whole) heretofore or
contemporaneously furnished (other than any projections and pro forma financial information
and information of a general industry nature), by or on behalf of the Borrower or any of its
Subsidiaries or any of their respective authorized consultants, agents or representatives in
writing to the Administrative Agent and/or any Lender on or before the Closing Date
(including all information contained in this Agreement) for purposes of or in connection
with this Agreement or any transaction contemplated herein was true and complete in all
material respects on the date as of which such information or data is dated or certified and
did not contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, taken as a whole, not
materially misleading at such time in light of the circumstances under which such statements
were made.
(b) The Projections were prepared in good faith based upon assumptions believed by the
Borrower to be reasonable at the time made, it being recognized by the Administrative Agent
and the Lenders that such projections are not to be viewed as facts, that whether such
projections will be achieved will depend on future events, some of which are not within the
Borrower’s control, and that actual results during the period or periods covered by any such
projections may differ from the projected results and that such variances can be
significant.
7.7 Financial Condition; Financial Statements.
The Borrower has heretofore furnished to the Lenders (i) the financial statements with respect
to the Borrower and its Subsidiaries for the fiscal year ended December 31, 2010 and with respect
to the fiscal quarter ended March 31, 2011 and (ii) the Projections. The financial statements
referred to in clause (i) of the immediately preceding sentence present fairly in all material
respects the consolidated financial position of the Borrower and its Subsidiaries at the
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respective
dates of said statements and the results of operations for the respective periods covered thereby,
subject, in the case of quarterly financial statements, to changes resulting from audit and normal
year-end adjustments and other adjustments (consisting of normal recurring adjustments) necessary
for a fair statement of the results for the interim period. All such financial statements have
been prepared in accordance with GAAP consistently applied, except to the extent provided in the
notes to said financial statements. All balance sheets, all statements of income and of cash flow
and all other financial information of each of the Borrower and its Subsidiaries furnished pursuant
to Section 8.1 have been and will for periods following the Closing Date be prepared in
accordance with GAAP consistently applied, and do or will present fairly the consolidated financial
condition of the Persons covered thereby as at the dates thereof and the results of their
operations for the periods covered thereby, subject, in the case of quarterly financial statements
to changes resulting from audit and normal year-end adjustments
and other adjustments (consisting of normal recurring adjustments) necessary for a fair
statement of the results for the interim period.
7.8 Tax Returns and Payments.
Each of the Borrower and its Subsidiaries has filed all material tax returns, domestic and
foreign, required to be filed by it and has paid all material taxes and assessments payable by it
that have become due, other than those not yet delinquent or contested in good faith. The Borrower
and each of its respective Subsidiaries have paid, or have provided adequate reserves (in the good
faith judgment of the management of the Borrower) in accordance with GAAP for the payment of, all
material income taxes applicable for all prior fiscal years and for the current fiscal year to the
Closing Date.
7.9 Environmental Matters.
Except as set forth in Schedule II:
(a) Other than instances of noncompliance that could not reasonably be expected to have
a Material Adverse Effect: (i) the Borrower and each of its Subsidiaries are in compliance
with all Environmental Laws in all jurisdictions in which the Borrower and each of its
Subsidiaries are currently doing business (including having obtained all material permits
required under Environmental Laws) and (ii) the Borrower will comply and cause each of its
Subsidiaries to comply with all such Environmental Laws (including all permits required
under Environmental Laws); and
(b) Neither the Borrower nor any of its Subsidiaries has treated, stored, transported
or disposed of Hazardous Materials at or from any currently or formerly owned Real Estate or
facility relating to its business in a manner that could reasonably be expected to have a
Material Adverse Effect.
7.10 Properties.
The Borrower and each of its Subsidiaries has good title to or a leasehold or easement
interest in all of its properties that are necessary for the operation of its respective business
as currently conducted and as proposed to be conducted, free and clear in each case of all Liens
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(other than any Liens permitted by this Agreement) except where the failure to have such good title
could not reasonably be expected to have a Material Adverse Effect.
7.11 Pension and Welfare Plans.
During the twelve-consecutive-month period prior to the Closing Date and prior to the date of
any Credit Event hereunder, except as could not reasonably be expected have a Material Adverse
Effect, (a) no steps have been taken to terminate any Pension Plan, (b) no contribution failure has
occurred with respect to any Pension Plan sufficient to give rise to a Lien under Section 303(k) of
ERISA, (c) no condition exists or event or transaction has occurred with respect to any Pension
Plan which might result in the incurrence by the Borrower or any member of the Controlled Group of
any liability (other than any liability that relates to the accrual of benefits), fine or penalty
and (d) except as disclosed in Schedule III, neither the Borrower nor
any member of the Controlled Group has any contingent liability with respect to any
post-retirement benefit under a Welfare Plan, other than liability for continuation coverage
described in Part 6 of Title I of ERISA.
7.12 Regulations U and X.
Neither the making of any Revolving Credit Loan hereunder nor the use of the proceeds thereof
will violate the provisions of F.R.S. Board Regulation U or Regulation X.
7.13 Investment Company Act.
Neither the Borrower nor any of its Subsidiaries is an “investment company” within the meaning
of the Investment Company Act of 1940, as amended.
7.14 No Material Adverse Change.
There has been no material adverse change in the business, assets, operations, property or
financial condition of the Borrower and its Subsidiaries taken as a whole since December 31, 2010.
7.15 Deemed Repetition of Representations and Warranties.
The representations and warranties set out in Sections 7.1 to 7.13 inclusive
(and solely in the case of the initial Credit Event, Section 7.14) will be deemed to be
repeated by the Borrower as of the date of each request for a new Credit Event, by the Borrower
(but not the conversion or continuation of a Borrowing) and as of the date on which a Successor
Borrower assumes all of the obligations of the Borrower under this Agreement pursuant to
Section 9.2(a) (but after giving effect to such assumption), except to the extent that on
or prior to such date (a) the Borrower has advised the Administrative Agent in writing of a
variation in any such representation or warranty, and (b) the Required Lenders have approved such
variation, and except where such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties shall have been true and correct in all
material respects as of such earlier date.
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ARTICLE 8
AFFIRMATIVE COVENANTS
AFFIRMATIVE COVENANTS
The Borrower (on its own behalf and on behalf of each of its Subsidiaries) hereby covenants
and agrees that on the Closing Date and thereafter, for so long as this Agreement is in effect and
until the Revolving Credit Maturity Date:
8.1 Information Covenants.
The Borrower will furnish to each Lender and the Administrative Agent:
(a) Annual Financial Statements. As soon as available and in any event on or before
the date that is 90 days after the end of each fiscal year of the Borrower, the consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such
fiscal year and the related consolidated statement of operations and cash flows for
such fiscal year prepared in accordance with GAAP consistently applied, setting forth
comparative consolidated figures for the preceding fiscal year, and audited by an
independent auditing firm of recognized national standing whose opinion shall not be
qualified as to the scope of audit or as to the status of the Borrower or any of its
Subsidiaries as a going concern, together in any event with a no-default letter from such
auditing firm stating that in the course of its regular audit of the business of the
Borrower and its Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, as established by the Auditing Standards Board (United States)
and with auditing standards of the Public Company Accounting Oversight Board (United
States), such auditing firm has obtained no knowledge of any Default or Event of Default
relating to Section 9.4 that has occurred and is continuing or, if in the opinion of
such auditing firm such a Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof.
(b) Quarterly Financial Statements. As soon as available and in any event on or before
the date that is 45 days after the end of each of the first three fiscal quarters in each
fiscal year of the Borrower, the consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal quarter and the related consolidated statement of
operations for such fiscal quarter and for the elapsed portion of the fiscal year ended with
the last day of such fiscal quarter, and the related consolidated statement of cash flows
and for the elapsed portion of the fiscal year ended with the last day of such fiscal
quarter, and setting forth comparative consolidated figures for the related periods in the
prior fiscal year or, in the case of such consolidated balance sheet, for the last day of
the prior fiscal year, and prepared in accordance with GAAP consistently applied, all of
which shall be certified by an Authorized Officer of the Borrower, subject to changes
resulting from audit and normal year-end adjustments and other adjustments (consisting of
normal recurring adjustments) necessary for a fair statement of the results for the interim
period.
(c) Officer’s Certificates. At the time of the delivery of the financial statements
provided for in Sections 8.1(a) and (b), a certificate of an Authorized
Officer of the Borrower in substantially the form of Exhibit E (a “Compliance
Certificate”) to
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the effect that no Default or Event of Default exists or, if any Default or
Event of Default does exist, specifying the nature and extent thereof, which certificate
shall be in form and detail satisfactory to the Administrative Agent, acting reasonably, and
setting forth the calculations required to establish whether the Borrower was in compliance
with the provisions of Section 9.4 as at the end of such fiscal year or period, as
the case may be.
(d) Notice of Default or Litigation. Promptly after an Authorized Officer of the
Borrower or any of its Subsidiaries obtains knowledge thereof, notice of (i) the occurrence
of any event that constitutes a Default or Event of Default, which notice shall specify the
nature thereof, the period of existence thereof and what action the Borrower proposes to
take with respect thereto and (ii) any litigation or governmental proceeding pending or
threatened against the Borrower or any of its Subsidiaries that could reasonably be expected
to result in a Material Adverse Effect.
(e) Environmental Matters. Promptly after an Authorized Officer of the Borrower or any
of its Subsidiaries obtains knowledge or notice of any one or more of the following
environmental matters, unless such environmental matters would not, individually or when
aggregated with all other such matters, be reasonably expected to result in a Material
Adverse Effect:
(i) Any pending or threatened Environmental Claim against the Borrower or any
of its Subsidiaries or any Real Estate (as defined below);
(ii) Any condition or occurrence that (x) results in non-compliance by the
Borrower or any of its Subsidiaries with any applicable Environmental Law or (y)
could reasonably be anticipated to form the basis of an Environmental Claim against
the Borrower or any of its Subsidiaries or any Real Estate;
(iii) Any condition or occurrence on any Real Estate that could reasonably be
anticipated to cause such Real Estate to be subject to any restrictions on the
ownership, occupancy, use or transferability of such Real Estate under any
Environmental Law; and
(iv) The taking of any removal or remedial action in response to the actual or
alleged presence of any Hazardous Material on any Real Estate.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the Borrower’s
response thereto. The term “Real Estate” shall mean land, buildings and improvements owned
or leased by the Borrower or any of its Subsidiaries, but excluding all operating fixtures
and equipment, whether or not incorporated into improvements.
(f) Pension Plans. Promptly after an Authorized Officer of the Borrower or any of its
Subsidiaries obtains knowledge thereof where the liability, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect, notice of
and copies of all documentation relating to (i) the institution of any steps by any Person
to terminate any Pension Plan, (ii) the failure to make a required contribution to any
Pension Plan if such failure is sufficient to give rise to a Lien under Section 302(f) of
46
ERISA, (iii) the taking of any action with respect to a Pension Plan which could result in
the requirement that the Borrower or any of its Subsidiaries furnish a bond or other
security to such Pension Plan, or (iv) the occurrence of any event with respect to any
Pension Plan which could result in the incurrence by the Borrower or any of its Subsidiaries
of any material liability, fine or penalty.
(g) Other Information. Promptly upon filing thereof, copies of any filings or
registration statements with, and reports to, any Governmental Authority in any relevant
jurisdiction by the Borrower or any of its Subsidiaries pursuant to applicable securities
laws (other than amendments to any registration statement (to the extent such registration
statement, in the form it becomes effective, is delivered to the Lenders), exhibits to any
registration statement) and copies of all financial statements, proxy statements, notices
and reports that the Borrower or any of its Subsidiaries shall send to the holders of any
publicly issued securities of the Borrower and/or any of its Subsidiaries in their
capacity as such holders (in each case to the extent not theretofore delivered to the
Lenders pursuant to this Agreement or filed with the Securities and Exchange Commission and
publicly available on XXXXX; provided, that the Borrower shall give prompt notice to
the Administrative Agent of such filing and if requested by any Lender, the Borrower shall
promptly deliver a copy of such filing to such requesting Lender) and, with reasonable
promptness, such other information (financial or otherwise) as the Administrative Agent on
its own behalf or on behalf of any Lender may reasonably request in writing from time to
time.
8.2 Books, Record and Inspections.
The Borrower will, and will cause each of its Subsidiaries to, (i) permit officers and
designated representatives of the Administrative Agent or the Required Lenders to visit and inspect
any of the properties or assets of the Borrower and its Subsidiaries in whomever’s possession to
the extent that it is within the Borrower’s or its Subsidiaries’ control to permit such inspection,
and to examine the books of account of the Borrower and any such Subsidiaries and discuss the
affairs, finances and accounts of the Borrower and of any such Subsidiaries with, and be advised as
to the same by, its and their officers and independent accountants, and (ii) permit officers and
designated representatives of Lenders to view copies of contracts of the Borrower and its
Subsidiaries (subject to reasonable confidentiality arrangements established by the Borrower), all
at such reasonable times during normal business hours and intervals and to such reasonable extent
as the Administrative Agent, the Required Lenders or the Lenders, as the case may be, may desire.
8.3 Maintenance of Insurance.
The Borrower will, and will cause each of its Subsidiaries to, at all times maintain in full
force and effect, with insurance companies that the Borrower believes (in the good faith judgment
of the management of the Borrower) are financially sound and responsible at the time the relevant
coverage is placed or renewed, insurance in at least such amounts and against at least such risks
(and with such risk retentions) as are usually insured against in the same general area by
companies engaged in the same or a similar business.
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8.4 Payment of Taxes.
The Borrower will pay and discharge, and will cause each of its Subsidiaries to pay and
discharge, all material taxes, assessments and governmental charges or levies imposed upon it or
upon its capital, income or profits, or upon any properties belonging to it, prior to the date on
which material penalties attach thereto, and all lawful material tax or similar claims that, if
unpaid, could reasonably be expected to become a material Lien upon any properties of the Borrower
or any of its Subsidiaries; provided that neither the Borrower nor any of its Subsidiaries shall be
required to pay any such tax, assessment, charge, levy or claim that is being contested in good
faith and by proper proceedings if it has maintained adequate reserves (in the good faith judgment
of the management of the Borrower) with respect thereto in accordance with GAAP.
8.5 Organizational Existence.
The Borrower will do, and will cause each of its Subsidiaries to do, or cause to be done, all
things necessary to preserve and keep in full force and effect its existence and its corporate or
other organizational rights and authority, except to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect; provided that, in any case, (a) the
Borrower and its Subsidiaries may consummate any transaction permitted under Section 9.2,
(b) any Subsidiary of the Borrower may merge with and into any other wholly-owned Subsidiary of the
Borrower and (c) except to the extent as could reasonably be expected to have a Material Adverse
Effect, any Subsidiary of the Borrower may enter into any merger or consolidation for the purpose
of changing its organizational form from a corporation to a limited liability company or from a
limited liability company to a corporation.
8.6 Compliance with Statutes, Obligations, etc.
The Borrower will, and will cause each of its Subsidiaries to, comply with all applicable
laws, rules, regulations and orders (including Environmental Laws), except to the extent the
failure to do so could not reasonably be expected to have a Material Adverse Effect.
8.7 Good Repair.
The Borrower will, and will cause each of its Subsidiaries to, ensure that its properties and
equipment used or useful in its business in whomever’s possession they may be to the extent that it
is within the Borrower’s or its Subsidiaries’ control to cause the same, are kept in good repair,
working order and condition, normal wear and tear excepted, and that from time to time there are
made in such properties and equipment all needful and proper repairs, renewals, replacements,
extensions, additions, betterments and improvements thereto, to the extent and in the manner
customary for companies in similar businesses and consistent with third party leases, except in
each case to the extent the failure to do so could not be reasonably expected to have a Material
Adverse Effect.
8.8 Transactions with Affiliates.
The Borrower will conduct, and will cause each of its Subsidiaries to conduct, all
transactions with any of its Affiliates on terms that are substantially as favorable to the
Borrower
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or such Subsidiary as it would obtain in a comparable arm’s-length transaction with a
Person that is not an Affiliate; provided that the foregoing restrictions shall not apply to (a)
transactions in the ordinary course of business at prices and on terms and conditions not less
favorable to the Borrower or such Subsidiary than could be obtained on an arm’s length basis from
unrelated third parties, (b) transactions between and among the Borrower and its wholly owned
Subsidiaries that do not involve any other Affiliate and (c) transactions permitted by Section
9.2 or Section 9.3.
8.9 End of Fiscal Years; Fiscal Quarters.
The Borrower will, for financial reporting purposes, cause (a) each of its, and each of its
Subsidiaries’, fiscal years to be comprised of twelve calendar months ending on December 31 of each
year and (b) each of its, and each of its Subsidiaries’, fiscal quarters to end on dates consistent
with such fiscal year-end; provided that the Borrower may, upon written notice to the Administrative Agent, change the financial reporting convention specified above to any other
financial reporting convention reasonably acceptable to the Administrative Agent, in which case the
Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any
adjustments to this Agreement that are necessary in order to reflect such change in financial
reporting.
8.10 Use of Proceeds.
The Borrower will use the Letters of Credit and the proceeds of all the Revolving Credit Loans
only for the purposes set forth in Section 2.1(b).
8.11 Changes in Business.
From the Closing Date, the Borrower and its Subsidiaries taken as a whole will not
fundamentally and substantively alter the character of their business taken as a whole from the
business conducted by the Borrower and its Subsidiaries taken as a whole on the Closing Date and
other business activities incidental or related to any of the foregoing (the “Business”).
ARTICLE 9
NEGATIVE COVENANTS
NEGATIVE COVENANTS
The Borrower (on its own behalf and on behalf of each of its Subsidiaries) hereby covenants
and agrees that on the Closing Date and thereafter until the Revolving Credit Maturity Date:
9.1 Limitation on Liens.
The Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume
or suffer to exist any Lien upon any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any of its Subsidiaries, whether now owned or hereafter acquired,
except:
(a) Permitted Liens;
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(b) Liens (i) on assets of ITCTransmission (of the same type as constitute collateral
under the ITCTransmission First Mortgage Indenture on the date hereof) to secure
Indebtedness of ITCTransmission under the ITCTransmission First Mortgage Indenture,
including, without limitation, any notes issued thereunder, (ii) on assets of METC (of the
same type as constitute collateral under the METC First Mortgage Indenture on the date
hereof) to secure Indebtedness of METC under the METC First Mortgage Indenture, including,
without limitation, any notes issued thereunder, (iii) on assets of ITC Midwest (of the same
type as constitute collateral under the ITC Midwest First Mortgage Indenture on the date
hereof) to secure Indebtedness of ITC Midwest under the ITC Midwest First Mortgage
Indenture, including, without limitation, any notes issued thereunder, and (iv) on assets of
any other Subsidiary (of the same type that constitute collateral under the ITCTransmission
First Mortgage Indenture, the METC First Mortgage Indenture and/or the ITC Midwest First
Mortgage Indenture on the date
hereof) to secure Indebtedness of any Subsidiary under any similar mortgage bond
indenture, including, without limitation, any notes issued thereunder;
(c) Liens existing on the Closing Date and as set out on Schedule IV;
(d) Liens existing on the assets or Capital Stock of any Person that becomes a
Subsidiary, or existing on assets acquired; provided that such Liens attach at all times
only to the same assets that such Liens attached to and secure only the same Indebtedness
that such Liens secured, immediately prior to such acquisition;
(e) Liens in favor of the Borrower or any Subsidiary;
(f) Liens in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the United States of
America or any State thereof or political entity affiliated therewith, to secure partial,
progress, advance or other payments, or other obligations, pursuant to any contract or
statute to secure any Indebtedness incurred for the purpose of financing all or any part of
the cost of acquiring, constructing or improving property subject to such Liens (including
Liens incurred in connection with pollution control, industrial revenue or similar
financings);
(g) Liens on any property created, assumed or otherwise brought into existence in
contemplation of the sale or other disposition of the underlying property, whether directly
or indirectly, by way of share disposition or otherwise; provided that 180 days from the
creation of such Liens the Borrower or the relevant Subsidiary shall have disposed of such
property and any Indebtedness secured by such Liens shall be without recourse to the
Borrower or any Subsidiary;
(h) Rights of other Persons to take minerals, timber, gas, water or other products
produced by the Borrower or by other Persons on the property of the Borrower;
(i) Liens created by or resulting from any litigation or other proceeding which is
being contested in good faith by appropriate proceedings, including Liens arising out of
judgments or awards against the Borrower or any Subsidiary with respect to which the
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Borrower or such Subsidiary is in good faith prosecuting an appeal or proceedings for
review; or Liens that the Borrower or any Subsidiary incurs for the purpose of obtaining a
stay or discharge in the course of any litigation or other proceeding to which the Borrower
or such Subsidiary is a party;
(j) Liens which have been bonded for the full amount in dispute;
(k) additional Liens so long as the aggregate outstanding principal amount of the
obligations so secured does not exceed the greater of (x) 10% of Net Tangible Assets and (y)
10% of Consolidated Capitalization at any time;
(l) Liens on any property acquired, constructed or improved by the Borrower or any
Subsidiary after the date hereof which are created or assumed contemporaneously with such
acquisition, construction or improvement, or within 270 days after the
completion thereof, to secure or provide for the payment of all or any part of the cost
of such acquisition, construction or improvement (including related expenditures capitalized
for Federal income tax purposes in connection therewith) incurred after the date hereof; and
(m) the replacement, extension or renewal of any Lien permitted by clauses (a) through
(l) above upon or in the same assets theretofore subject to such Lien or the replacement,
extension or renewal (without increase in the amount or change in any direct or contingent
obligor except to the extent otherwise permitted hereunder) of the Indebtedness secured
thereby.
9.2 Limitation on Fundamental Changes.
The Borrower will not enter into any merger or consolidation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all its business units, assets or other
properties, except that:
(a) any Subsidiary of the Borrower or any other Person may be merged or consolidated
(including by way of liquidation or winding up) with or into the Borrower; provided that (i)
either (x) the Borrower shall be the continuing or surviving entity or (y) the debt rating
of the Person (if other than the Borrower) who is the continuing or surviving entity (the
Borrower or Person, as the case may be, being herein referred to as the “Successor
Borrower”) shall after giving effect to such merger or consolidation be BBB- or higher from
S&P or Baa3 or higher from Xxxxx’x (provided that in no event shall such Successor Borrower
have a debt rating of BB or lower from S&P or Ba2 or lower from Xxxxx’x), as determined
pursuant to the definition of “Applicable Margin”, (ii) the Successor Borrower shall be an
entity organized or existing under the laws of the United States or any State thereof, (iii)
the Successor Borrower shall expressly assume all the obligations of the Borrower under this
Agreement pursuant to a supplement hereto in form and substance reasonably satisfactory to
the Administrative Agent, (iv) no Default or Event of Default is then existing and no
Default or Event of Default would result from the consummation of such merger or
consolidation, (v) the Borrower shall be in
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compliance, on a pro forma basis after giving
effect to such merger or consolidation, with the covenant set forth in Section 9.4
as such covenant is recomputed as at the last day of the most recently ended fiscal quarter
under each such Section as if such merger or consolidation had occurred on the last day of
such fiscal quarter, and (vi) the Borrower shall have delivered to the Administrative Agent
an officer’s certificate, in form and substance reasonably satisfactory to the
Administrative Agent, certifying the compliance referred to in clause (v) above and stating
that such merger or consolidation and such supplement to this Agreement comply with this
Agreement and a legal opinion (in form and substance reasonably satisfactory to the
Administrative Agent) with respect to this Agreement to be delivered, if any, pursuant to
clause (iii) above; provided further that if the foregoing are satisfied, such Successor
Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower
under this Agreement; and
(b) the Borrower may enter into any merger or consolidation for the purpose of changing
its organizational form from a corporation to a limited liability company or from a limited
liability company to a corporation; provided that such change has no adverse affect on the
rights of the Finance Parties.
9.3 Limitation on Dividends.
If any Default or Event of Default then exists or would result therefrom, the Borrower will
not declare or pay any distributions (other than distributions payable solely in its Capital Stock)
or return any capital to its shareholders or make any other distribution, payment or delivery of
property or cash to its shareholders as such, or redeem, retire, purchase or otherwise acquire,
directly or indirectly, for consideration, any of its Capital Stock or the Capital Stock of any
direct or indirect shareholder of the Borrower now or hereafter outstanding (or any warrants for or
options or stock appreciation rights in respect of any of its Capital Stock), or set aside any
funds for any of the foregoing purposes, or permit any of its Subsidiaries to purchase or otherwise
acquire for consideration any Capital Stock of the Borrower, now or hereafter outstanding (or any
options or warrants or stock appreciation rights issued by such Person with respect to its Capital
Stock), provided that the Borrower may take any of the actions in this Section 9.3 so long
as (a) after giving effect to such action the Borrower’s debt rating shall be BBB- or higher from
S&P or Baa3 or higher from Xxxxx’x (provided that in no event shall the Borrower have a debt rating
of BB or lower from S&P or Ba2 or lower from Xxxxx’x), as determined pursuant to the definition of
“Applicable Margin” or (b) the Revolving Credit Commitment is unused and there are no Letters of
Credit Outstanding.
9.4 Debt to Capitalization Ratio.
The Borrower will not permit the Debt to Capitalization Ratio of the Borrower to be greater
than 75%, as of the last day of each fiscal quarter.
9.5 Limitation on Sale-Lease Back Transactions.
The Borrower will not enter into any sale-leaseback transaction (a “Sale and Leaseback
Transaction”) involving any of its property or assets whether now owned or hereafter acquired,
whereby the Borrower sells or otherwise transfers such property or assets and thereafter leases or
52
subleases such property or assets or any part thereof or any other property or assets that the
Borrower intends to use for substantially the same purpose or purposes as the property or assets
sold or otherwise transferred unless (a) the Borrower would be entitled to incur Indebtedness
secured by a Lien on such property or assets pursuant to Section 9.1 or (b) the
Attributable Value of all Sale and Leaseback Transactions entered into pursuant to this Section
9.5 does not exceed $20,000,000. A Sale and Leaseback Transaction shall not be deemed to result
in the creation of a Lien.
ARTICLE 10
EVENTS OF DEFAULT
EVENTS OF DEFAULT
Each of the following specified events or occurrences described in Sections 10.1
through 10.9 below shall constitute an “Event of Default”:
10.1 Payments.
The Borrower shall (a) default in the payment when due of any principal of the Revolving
Credit Loans or (b) default, and such default shall continue for five or more days, in the payment
when due of any interest on the Revolving Credit Loans or any Fees or any Unpaid Drawings or of any
other amounts owing hereunder.
10.2 Representations, etc.
Any representation, warranty or statement made or deemed made by the Borrower herein or any
certificate delivered or required to be delivered pursuant hereto shall prove to be untrue in any
material respect on the date as of which made or deemed made.
10.3 Covenants.
The Borrower shall (i) default in the due performance or observance by it of any term,
covenant or agreement contained in Section 8.1(d), Section 8.5 (solely with respect
to the Borrower), Section 8.11 or Article 9, or (ii) default in the due performance
or observance by it of any term, covenant or agreement (other than those referred to in Section
10.1 or 10.2 or clause (i) of this Section 10.3) contained in this Agreement
and such default shall continue unremedied for a period of at least 30 days after the receipt of
written notice by the Borrower from the Administrative Agent or the Required Lenders.
10.4 Default Under Other Agreements.
(a) The Borrower or any of its Subsidiaries shall (i) default in any payment with respect to
any Indebtedness, in excess of $15,000,000 in the aggregate, beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was created or (ii) default
in the observance or performance of any agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating thereto beyond the period
of grace, if any, provided in the instrument or agreement under which such Indebtedness was
created, or any other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such
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Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause, any such Indebtedness to become due
prior to its stated maturity; or
(b) without limiting the provisions of clause (a) above, any such Indebtedness shall be
declared to be due and payable, or required to be prepaid other than by a regularly scheduled
required prepayment or as a mandatory prepayment, prior to the stated maturity thereof.
10.5 Bankruptcy, etc.
The Borrower or any Material Subsidiary shall commence a voluntary case concerning itself
under the Bankruptcy Code as now or hereafter in effect, or any successor thereto or any similar
legislation in any other applicable jurisdiction (collectively, the “Bankruptcy Code”); or an
involuntary case is commenced against the Borrower or any Material Subsidiary and the petition or
application is not contested within 10 days after commencement of the case; or an involuntary case
is commenced against the Borrower or any Material Subsidiary and the petition
or application is not dismissed within 45 days after commencement of the case; or a receiver,
trustee, liquidator, custodian or similar official is appointed for, or takes charge of, all or
substantially all of the property of the Borrower or any Material Subsidiary or the Borrower or any
Material Subsidiary commences any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Borrower or any Material Subsidiary
itself; or there is commenced against the Borrower or any Material Subsidiary any such proceeding
that remains undismissed for a period of 45 days; or the Borrower or any Material Subsidiary is
adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower or any Material Subsidiary makes a general assignment for
the benefit of creditors, files under the Bankruptcy Act or takes a similar action under the
Bankruptcy Act; or any corporate or similar action is taken by the Borrower or any Material
Subsidiary for the purpose of effecting any of the foregoing; or the Borrower or any Material
Subsidiary is unable to pay its debts as they fall due, or makes a general assignment for the
benefit of or a composition with its creditors generally; or the Borrower or any Material
Subsidiary takes any corporate or similar action or other steps are taken or legal proceedings are
started for its winding-up, dissolution, administration or insolvent re-organization or for the
appointment of a liquidator, administrator or administrative receiver of it.
10.6 Non-ownership of Material Subsidiaries.
The Borrower on any date is not the direct or (through its Subsidiaries) indirect owner of
100% of the capital stock of ITCTransmission, METC, ITC Midwest or any of its other Material
Subsidiaries.
10.7 Judgments.
One or more judgments or decrees shall be entered against the Borrower or any of its
Subsidiaries involving a liability of $15,000,000 or more in the aggregate for all such judgments
and decrees for the Borrower or any of its Subsidiaries (to the extent not paid or fully covered by
insurance provided by a carrier not disputing coverage) and any such judgments or decrees shall
54
not
have been satisfied, vacated, discharged or stayed or bonded pending appeal within 60 days from the
entry thereof.
10.8 Change of Ownership.
A Change of Ownership shall occur.
10.9 Pension Plans.
Any of the following events shall occur with respect to any Pension Plan: (a) the institution
of any steps by the Borrower or any other Person to terminate a Pension Plan if, as a result of
such termination, the Borrower or any of its Subsidiaries could be required to make a contribution
to such Pension Plan, or could reasonably expect to incur a liability or obligation to such Pension
Plan in respect of such termination; or (b) a contribution failure occurs with respect to any
Pension Plan sufficient to give rise to a Lien under section 302(f) of ERISA, where in
each case under clauses (a) or (b) such contribution, liability, obligation or Lien would
reasonably be expected to have a Material Adverse Effect.
10.10 Remedies.
Upon the occurrence of any Event of Default described above, and in any such event, and at any
time thereafter, if any Event of Default shall then be continuing, the Administrative Agent shall,
upon the written request of the Required Lenders, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of the Administrative Agent to
enforce its claims against the Borrower, except as otherwise specifically provided for in this
Agreement (provided that, if an Event of Default specified in Section 10.5 shall occur with
respect to the Borrower, the result that would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i), and (ii) below shall occur automatically without
the giving of any such notice): (i) declare the Total Revolving Credit Commitment terminated,
whereupon the Revolving Credit Commitments of each Lender shall forthwith terminate immediately and
any Fees theretofore accrued shall forthwith become due and payable without any other notice of any
kind; (ii) declare the principal of and any accrued interest in respect of all Revolving Credit
Loans and all obligations owing hereunder to be, whereupon the same shall become, forthwith due and
payable without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower; (iii) terminate any Letter of Credit that may be terminated in accordance
with its terms; (iv) direct the Borrower to pay (and the Borrower agrees that upon receipt of such
notice, or upon the occurrence of an Event of Default specified in Section 10.5 with
respect to the Borrower, it will pay) to the Administrative Agent at the office of the
Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but
initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)) such
additional amounts of cash, to be held as security for the Borrower’s reimbursement obligations for
Drawings that may subsequently occur thereunder, equal to the aggregate Stated Amount of all
Letters of Credit issued and then outstanding; and/or (v) exercise any other remedies that may be
available under this Agreement or applicable law.
10.11 Remedies Cumulative.
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The rights and remedies of the Administrative Agent and the Lenders under this Agreement are
cumulative and are in addition to and not in substitution for any rights or remedies provided by
law or by equity, and any single or partial exercise by the Lenders of any right or remedy for a
default or breach of any term, covenant, condition or agreement herein contained shall not be
deemed to be a waiver of or to alter, affect, or prejudice any other right or remedy or other
rights or remedies to which the Lenders may be lawfully entitled for the same default or breach,
and any waiver by the Administrative Agent or the Lenders of the strict observance, performance or
compliance with any term, covenant, condition or agreement herein contained, and any indulgence
granted by the Administrative Agent or the Lenders shall be deemed not to be a waiver of any
subsequent default. In the event that the Administrative Agent or the Lenders shall have proceeded
to enforce any such right, remedy or power contained herein and such proceedings shall have been
discontinued or abandoned for any reason, by written agreement between the Lenders and the
Borrower, then in each such event the Borrower and the Lenders shall be restored to their former
positions and the rights, remedies and powers of the Lenders shall continue as if no such
proceedings had been taken.
ARTICLE 11
THE ADMINISTRATIVE AGENT
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Letter of Credit Issuer hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms
hereof, together with such actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 12.1), and (c) except as expressly
set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 12.1) or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the
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Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this Agreement, (ii) the
contents of any certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall
have the right, with the consent of the Borrower (not to be unreasonably withheld), to appoint a
successor. If no successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent gives notice of
its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the
Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and
become vested with all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article
and Section 12.5 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while it was acting as Administrative Agent.
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Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
Notwithstanding anything herein to the contrary the Joint Bookrunners, the Joint Lead
Arrangers and the Syndication Agent named on the cover page of this Agreement shall not have any
duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.
ARTICLE 12
MISCELLANEOUS
MISCELLANEOUS
12.1 Amendments and Waivers.
Neither this Agreement, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 12.1. The Required
Lenders may from time to time (a) enter into with the Borrower and Administrative Agent, as
applicable, written amendments, supplements or modifications hereto for the purpose of adding or
amending any provisions to this Agreement or changing in any manner the rights of the Lenders or of
the Borrower hereunder or thereunder, (b) waive, on such terms and conditions as the Required
Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the
requirements of this Agreement or any Default or Event of Default and its consequences; provided
that no such waiver and no such amendment, supplement or modification shall directly (i) forgive
any portion of, or extend or waive the final scheduled maturity date of, any Revolving Credit Loan,
or reduce the stated rate of, forgive any portion of or extend the date for the payment of any
interest or fee payable hereunder (other than as a result of waiving the applicability of any
post-default increase in interest rates) or extend the final expiration date of any Lender’s
Revolving Credit Commitment or extend the final expiration date of any Letter of Credit beyond the
L/C Maturity Date or increase the amount of any of the Revolving Credit Commitments of any Lender
or amend Section 3.2, in each case without the written consent of each Lender whose
Revolving Credit Loan, interest, fee or Revolving Credit Commitment is changed as set forth above
thereby, or (ii) amend, modify or waive any provision of this Section 12.1 or reduce the
percentages specified in the definitions of the terms “Required Lenders” or consent to the
assignment or transfer by the Borrower of its rights and obligations under this Agreement (except
as permitted pursuant to Section 9.1), in each case without the written consent of each
Lender, or (iii) amend, modify or waive any provision of Article 11 without the written
consent of the then-current Administrative Agent, or (iv) amend, modify or waive any provision of
Article 3 or Section 12.6(a)(ii) (to the extent it relates to the Letter of Credit
Issuer) without the written consent of the Letter of Credit Issuer, or (v) amend Section
5.2(a) to the extent that it relates to payments for the ratable account of Lenders without the
written consent of each Lender directly and adversely affected thereby, in each case without the
written consent of all the Lenders except as otherwise specifically provided in this Section
12.1 and provided further that at any time that no Default or Event of Default has occurred and
is continuing, the
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Revolving Credit Commitment of any Lender may be increased for any purpose
permitted hereunder, with the consent of such Lender, the Borrower and the Administrative Agent
(which consent, in the case of the Administrative Agent, shall not be unreasonably withheld) and
without the consent of the Required Lenders, as provided for in this Section 12.1.
Any such waiver and any such amendment, supplement or modification shall apply equally to each
of the affected Lenders and shall be binding upon the Borrower, such Lenders, the Administrative
Agent and all future holders of the affected Revolving Credit Loans. In the case of any waiver, the
Borrower, the Lenders and the Administrative Agent shall be restored to their former positions and
rights hereunder, and any Default or Event of Default waived shall be deemed to be cured and not
continuing, it being understood that no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereon.
12.2 Notices.
(a) Notices generally. All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by facsimile transmission) and, unless
otherwise expressly provided herein, if mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid courier service, shall be deemed given when received and,
if transmitted by facsimile, shall be deemed given when the confirmation of transmission thereof is
received by the transmitter, in each case addressed as follows in the case of the Borrower, the
Administrative Agent and as set forth on Schedule I in the case of each Lender (or as set
forth in the Assignment and Acceptance of any Lender which is an Assignee) or to such other address
as may be hereafter notified by the respective parties hereto:
(i) | The Borrower: |
ITC Holdings Corp. 00000 Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxx X. Xxxxxx Facsimile No.: (000) 000-0000 Telephone No.: (000) 000-0000 |
(ii) | The Administrative Agent: |
JPMorgan Chase Bank, N.A. Loan Operations 00 Xxxxx Xxxxxxxx, 0xx Xxxxx Xxxxxxx, XX 00000 Attention: Xxxxxxxx Xxxx Facsimile No.: (000) 000-0000 with copy to (except in the case of notices relating to borrowings, continuations, conversions and letters of credit): JPMorgan Chase Bank, N.A. |
59
10 South Dearborn, 9th Floor Mail Code XX0-0000 Xxxxxxx, XX 00000 Attention: Xxxxx X. Xxxxxx Credit Executive, Corporate Client Banking, Power and Utilities Facsimile No.: (000) 000-0000 and JPMorgan Chase Bank, N.A. Portfolio Management Administration 00 Xxxxx Xxxxxxxx, 0xx Xxxxx Mail Code IL1-0874 Xxxxxxx, XX 00000 Attention: Xxxx XxXxxxx Facsimile No.: (000) 000-0000 |
provided that any notice, request or demand to or upon the Administrative Agent or the Lenders
pursuant to Sections 2.3, 2.6, 2.10, 4.2 and 5.1 shall not
be effective until received.
(b) Electronic Communications. Notices and other communications to the Lenders hereunder may
be delivered or furnished by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices pursuant to
Article 2 unless otherwise agreed by the Administrative Agent and the applicable Lender.
The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices or communications.
(c) Communications on Electronic Transmission System. The Borrower agrees that the
Administrative Agent may make communications available to the Lenders by posting such
communications on Intralinks or a substantially similar electronic transmission system (the
“Platform”). THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY
OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE
PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, THE
“AGENT PARTIES”) HAVE ANY LIABILITY TO THE BORROWER, ANY LENDER OR ANY OTHER PERSON OR
ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL,
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INCIDENTAL OR CONSEQUENTIAL
DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S
OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE
EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF
COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
12.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
12.4 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any document, certificate or
statement delivered pursuant hereto or in connection herewith shall survive the execution and
delivery of this Agreement and the making of the Revolving Credit Loans hereunder.
12.5 Payment of Expenses and Taxes.
(a) The Borrower agrees (i) to pay or reimburse the Arrangers and the Administrative Agent for
all their reasonable and documented out-of-pocket costs and expenses incurred in connection with
the development, preparation and execution of, and any amendment, supplement or modification to,
this Agreement and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and thereby (including the
syndication of the Revolving Credit Commitments), including the reasonable fees, disbursements and
other charges of one counsel to the Administrative Agent, (ii) to pay or reimburse each Lender and
the Administrative Agent for all its reasonable and documented costs and expenses incurred in
connection with the enforcement or preservation of any rights under, or “workout” or restructuring
of, this Agreement and any such other documents, including the reasonable fees, disbursements and
other charges of counsel to each Lender and of counsel to the Administrative Agent, (iii) to pay,
indemnify, defend and hold harmless each Lender and the Administrative Agent from, any and all
recording and filing fees and any and all liabilities with respect to, or resulting from any delay
in paying, stamp, excise and other similar taxes, if any, that may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or administration of any
of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement and any such other documents (collectively,
“Other Taxes”), and (iv) to pay, indemnify, defend and hold harmless each Lender, each Arranger and
the Administrative Agent and their respective directors, officers, employees, trustee, agents and
Affiliates (collectively, the “Indemnitees”) from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
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disbursements of any kind or nature whatsoever (including reasonable and documented fees,
disbursements and other charges of counsel incurred in connection with any investigative,
administrative or judicial proceeding commenced or threatened by any Person, whether or not any
such Indemnitee shall be designated as a party or potential party thereto, and any fees or expenses
incurred by any Indemnitee in enforcing this indemnity), whether direct, indirect or consequential,
whether based on strict liability or negligence, and whether based on any federal, provincial or
foreign laws, statutes, rules, regulations or guidelines (including Environmental Laws), common
law, equity, contract or otherwise that may be imposed on, incurred by or asserted against any
Indemnitee, in any manner arising out of or relating to (A) this Agreement and any other agreements
or documents contemplated hereby or thereby, the other transactions contemplated hereby (including
the execution, delivery, enforcement, performance and administration of this Agreement and the
breach by the Borrower of, or default by the Borrower under, any of the provisions of this
Agreement, any Revolving Credit Loan or Letter of Credit, or the use or proposed use of the
proceeds thereof), (B) the violation of, non-compliance with or
liability under, any Environmental Law applicable to the operations of the Borrower or any of
its Subsidiaries or applicable to any of the Real Estate, or (C) any Environmental Claim or any
Hazardous Materials relating to or arising from, directly or indirectly, any past or present
activity, operation, land ownership, possession or control, or practice of, the Borrower or any of
its Subsidiaries from time to time (all the foregoing in this clause (iv), collectively, the
“indemnified liabilities”); provided that the Borrower shall have no obligation hereunder
to any Indemnitee with respect to indemnified liabilities arising from the gross negligence or
willful misconduct of such Indemnitee as determined by a final judgment of a court of competent
jurisdiction and provided further that the Borrower shall have no obligation hereunder to any
Indemnitee with respect to claims that do not involve an act or omission of the Borrower or any of
its affiliates and that is brought by the Administrative Agent, an Arranger or any Lender against
any other Lender. The agreements in this Section 12.5 shall survive repayment of the
Revolving Credit Loans and all other amounts payable hereunder.
Each of the Lenders, each of the Arrangers and the Administrative Agent agree that any and all
of their respective rights under this Agreement and any other agreements contemplated hereby and
thereby, including recourse for any obligation or claim for any indemnification thereunder, is
limited to recourse to the Borrower and its assets as contemplated hereby, and none of the direct
or indirect limited partners, partners, shareholders, members of the Borrower or any of their
respective employees, directors or officers shall have any obligations or liability, or be subject
to any recourse, in respect of any such obligations or claims hereunder or thereunder.
(b) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent or any Arranger under paragraph (a) of this Section 12.5, each Lender
severally agrees to pay to the Administrative Agent or such Arranger, as the case may be, such
Lender’s Revolving Credit Commitment Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent or such Arranger in its
capacity as such.
12.6 Successors and Assigns; Participations and Assignments.
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(a) Assignments Generally. The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns permitted hereby
(including any Affiliate of the Letter of Credit Issuer that issues any Letter of Credit), except
that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign
or otherwise transfer its rights or obligations hereunder except in accordance with this
Section 12.6. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Letter of Credit Issuer that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section 12.6) and, to the
extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the
Letter of Credit Issuer and the Lenders) any legal or equitable right, remedy or claim under
or by reason of this Agreement.
(b) Assignments by Lenders.
(i) Assignments Generally. Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees (the “Assignee”) all or a portion of
its rights and obligations under this Agreement (including all or a portion of its Revolving
Credit Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld) of:
(A) the Borrower (provided that the Borrower shall be deemed to have consented
to any such assignment unless it shall object thereto by written notice to the
Administrative Agent within fifteen (15) days after having received notice thereof),
provided that no consent of the Borrower shall be required for an assignment
to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default
has occurred and is continuing, any other assignee;
(B) the Administrative Agent; and
(C) the Letter of Credit Issuer.
(ii) Certain Conditions to Assignments. Assignments shall be subject to the following
additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender’s Revolving
Credit Commitment, Revolving Credit Loans, the amount of the Revolving Credit
Commitment, or Revolving Credit Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of the Borrower and the Administrative Agent otherwise
consent, provided that no such consent of the Borrower shall be required if
an Event of Default has occurred and is continuing;
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(B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing and
recordation fee of $3,500; and
(D) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
(iii) Effectiveness of Assignments. Subject to acceptance and recording thereof
pursuant to paragraph (b)(iv) of this Section 12.6, from and after the effective
date specified in each Assignment and Acceptance the Assignee thereunder shall be a
party hereto (the “Assignment Effective Date”) and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.10, 2.11,
3.5 and 12.5). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 12.6 shall
be treated for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (c) of this Section 12.6.
(iv) Maintenance of Register. The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Revolving Credit Commitment of, and principal amount of the Revolving
Credit Loans and Unpaid Drawings owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent, the Letter of Credit Issuer and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower, the Letter of Credit Issuer and
any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Acceptance of Assignments by Administrative Agent. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an assignee, the
assignee’s completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this
Section 12.6 and any written consent to such assignment required by paragraph (b) of
this Section 12.6, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register; provided
that if either the assigning Lender or the assignee shall have failed to make any
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payment
required to be made by it pursuant to Section 2.4(b), 3.3 or 3.4,
the Administrative Agent shall have no obligation to accept such Assignment and Acceptance
and record the information therein in the Register unless and until such payment shall have
been made in full, together with all accrued interest thereon. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(vi) No Assignment to the Borrower or its Affiliates. No assignment pursuant to this
Section 12.6 shall be made to the Borrower or any of its Affiliates.
(c) Participations.
(i) Participations Generally. Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Letter of Credit Issuer, sell participations to one or more
banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Revolving Credit
Commitment and the Revolving Credit Loans owing to it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of such
obligations and (C) the Borrower, the Administrative Agent, the Letter of Credit Issuer and
the other Lenders shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the second sentence of
Section 12.1 that affects such Participant. Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.10, 2.11 and 3.5 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 12.8 as though it were a Lender.
(ii) Limitations on Rights of Participants. A Participant shall not be entitled to
receive any greater payment under Section 2.10 or 3.5 than the applicable
Lender would have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made with the
Borrower’s prior written consent. Any Participant that is a Non-U.S. Lender shall not be
entitled to the benefits of Section 5.3 unless such Participant complies with
Section 5.3(c).
(d) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such Lender, including
without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and
this Section 12.6 shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release a
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Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.
12.7 Replacements of Lenders under Certain Circumstances.
(a) If any Lender requests compensation under Section 2.10, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 5.3, or if any Lender becomes a Defaulting Lender, or if
any Lender is affected in the manner described in Section 2.10(a)(iii) and as a result
thereof any of the actions described in such Section is required to be taken, then the Borrower
may, at its sole expense and effort upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 12.6) all its interests, rights and obligations
under this Agreement to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (i) no Default or Event of
Default shall have occurred and be continuing at the time of such assignment, (ii) the Borrower
shall have received the prior written consent of the Administrative Agent and the Letter of Credit
Issuer, which consents shall not unreasonably be withheld, (iii) the Borrower shall have paid the
Administrative Agent the assignment fee specified in Section 12.6, (iv) such Lender shall
have received payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts), (v) in the case of any such assignment resulting from payments required
to be made pursuant to Section 2.10 or a claim for compensation under Section 2.11,
such assignment will result in a reduction in such compensation or payments and (vi) such
assignment does not conflict with applicable law. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise,
the circumstances entitling the Borrower to require such assignment and delegation cease to apply;
or
(b) In the event that S&P or Xxxxx’x shall, after the date that any Lender with a Revolving
Credit Commitment becomes a Lender, downgrade the long-term certificate of deposit rating or
long-term senior unsecured debt rating of such Lender, and the resulting rating shall be below BBB-
or Baa3 respectively, then the Borrower shall have the right, but not the obligation, upon notice
to such Lender and the Administrative Agent, to replace such Lender with an Assignee in accordance
with and subject to the restrictions contained in Section 12.6, and such Lender hereby
agrees to transfer and assign without recourse (in accordance with and subject to the restrictions
contained in Section 12.6) all its interests, rights and obligations in respect of its
Revolving Credit Commitment under this Agreement to such Assignee; provided that (i) no such
assignment shall conflict with any law, regulation or order of any governmental authority and (ii)
such Assignee shall pay to such Lender in immediately available funds on the date of such
assignment the principal of and interest and fees (if any) accrued to the date of payment on the
Revolving Credit Loans made by such Lender hereunder and all other amounts accrued for such
Lender’s account or owed to it hereunder.
12.8 Adjustments; Set-off.
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(a) If any Defaulting Lender shall fail to make any payment required to be made by it pursuant
to Section 2.4(b), 3.3(c), 3.4(c), 12.5(b) or 12.8(c), then
the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof,
(i) apply for the benefit of the Administrative Agent, the Letter of Credit Issuer or any Lender
any amounts thereafter received by the Administrative Agent for the account of such Lender to
satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are
fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and
application to, any future funding obligations of such Lender under such Sections; in the case of
each of (i) and (ii) above, in any order as determined by the Administrative Agent in its
discretion.
(b) After the occurrence and during the continuance of an Event of Default, in addition to any
rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Lender or any branch or agency thereof to or for the credit or the
account of the Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative
Agent after any such set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application.
(c) If any Finance Party shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of setoff or otherwise) on account of any Credit Event (other than
pursuant to the terms of Section 2.10, 2.11 or 5.3) in excess of its pro
rata share of payments obtained by all Finance Parties, such Finance Party shall purchase from the
other Finance Parties such participations in Credit Events made by them as shall be necessary to
cause such purchasing Finance Party to share the excess payment or other recovery ratably (to the
extent such other Finance Parties were entitled to receive a portion of such payment or recovery)
with each of them; provided that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Finance Party, the purchase shall be rescinded and each
Finance Party which has sold a participation to the purchasing Finance Party shall repay to the
purchasing Finance Party the purchase price to the ratable extent of such recovery together with an
amount equal to such selling Finance Party’s ratable share (according to the proportion of (a) the
amount of such selling Finance Party’s required repayment to the purchasing Finance Party to (b)
total amount so recovered from the purchasing Finance Party) of any interest or other amount paid
or payable by the purchasing Finance Party in respect of the total amount so recovered. The
Borrower agrees that any Finance Party purchasing a participation from another Finance Party
pursuant to this Section 12.8 may, to the fullest extent permitted by law, exercise all its
rights of payment (including pursuant to clause (b) above) with respect to such participation as
fully as if such Finance Party were the direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar law any Finance
Party receives a secured claim in lieu of a setoff to which this Section 12.8 applies, such
Finance Party shall, to the extent practicable, exercise its rights in respect of such secured
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claim in a manner consistent with the rights of the Lenders entitled under this Section
12.8 to share in the benefits of any recovery on such secured claim.
12.9 Marshalling; Payments Set Aside.
Neither the Administrative Agent nor any Lender shall be under any obligation to marshal any
assets in favor of the Borrower or any other party or against or in payment of any or all of the
Borrower’s obligations hereunder. To the extent that the Borrower makes a payment or payments to
the Administrative Agent, any Letter of Credit Issuer or Lenders (or to the Administrative Agent
for the benefit of Lenders), or the Administrative Agent, any Letter of Credit Issuer or Lenders
enforce any security interests or exercise their rights of setoff, and such payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, any other
provincial, state or federal law, common law or any equitable cause, then, to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights
and remedies therefor or related thereto, shall be revived and continued in full force and effect
as if such payment or payments had not been made or such enforcement or setoff had not occurred.
12.10 Counterparts.
This Agreement may be executed by one or more of the parties to this Agreement on any number
of separate counterparts (including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent.
12.11 Severability.
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.
12.12 Integration.
This Agreement represents the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative to subject matter
hereof not expressly set forth or referred to herein.
12.13 Governing Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK AND THE LAWS OF
THE UNITED STATES APPLICABLE THEREIN
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(EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE WHICH MIGHT
REFER SUCH CONSTRUCTION TO THE LAWS OF ANOTHER JURISDICTION).
12.14 Submission to Jurisdiction; Waivers.
The Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to
this Agreement, or for recognition and enforcement of any judgment in respect thereof, to
the exclusive jurisdiction of the courts of the State of New York or of the United States
for the Southern District of New York, and any appellate court from any thereof, in each
case which are located in the Borough of Manhattan in the county of New York;
(b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected in
accordance with the local rules of civil procedure or by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail), postage prepaid,
to the Borrower at its address set forth in Section 12.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to xxx in any other jurisdiction;
and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim
or recover in any legal action or proceeding referred to in this Section 12.14 any
special, exemplary, punitive or consequential damages.
12.15 Acknowledgements.
The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement;
(b) neither the Administrative Agent nor any Lender (in any capacity) has any fiduciary
relationship with or duty to the Borrower arising out of or in connection with this
Agreement, and the relationship between Administrative Agent and Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is solely that of
debtor and creditor; and
(c) no joint venture is created hereby or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or among the Borrower and the Lenders.
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12.16 Waivers of Jury Trial.
THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
12.17 Confidentiality.
The Administrative Agent and each Lender shall hold all non-public information furnished by or
on behalf of the Borrower in connection with such Lender’s evaluation of whether to become a Lender
hereunder or obtained by such Lender or the Administrative Agent
pursuant to the requirements of this Agreement (“Confidential Information”), in accordance
with its customary procedure for handling confidential information of this nature and (in the case
of a Lender that is a bank) in accordance with safe and sound banking practices and in any event
may make disclosure as required or requested by any Governmental Authority, representatives thereof
or any nationally recognized rating agency that requires access to information about such Lender’s
investment portfolio in connection with ratings issued with respect to such Lender or pursuant to
legal process or to such Lender’s or the Administrative Agent’s lawyers, professional advisors or
independent auditors or Affiliates; provided that, unless specifically prohibited by applicable law
or court order, each Lender and the Administrative Agent shall notify the Borrower of any request
by any governmental agency or representative thereof (other than any such request in connection
with an examination of the financial condition or regulatory compliance of such Lender by such
Governmental Authority or in connection with ratings by such rating agency with respect to such
Lender) for disclosure of any such non-public information prior to disclosure of such information,
and provided further that in no event shall any Lender or the Administrative Agent be obligated or
required to return any materials furnished by the Borrower or any Subsidiary of the Borrower. Each
Lender and the Administrative Agent agrees that it will not provide to prospective Assignees or
Participants or to prospective direct or indirect contractual counterparties in swap agreements to
be entered into in connection with Revolving Credit Loans made hereunder any of the Confidential
Information unless such Person shall have previously executed a Confidentiality Agreement
substantially in the form prescribed from time to time by the Loan Sales and Trading Association.
12.18 Treatment of Revolving Credit Loans.
(a) The Borrower does not intend to treat the Revolving Credit Loans and related transactions
as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4).
In the event the Borrower determines to take any action inconsistent with such intention, it will
promptly notify the Administrative Agent thereof.
(b) The Borrower acknowledges that the Administrative Agent and one or more of the Lenders may
treat its Revolving Credit Loans as part of a transaction that is subject to Treasury Regulation
Section 1.6011-4 or Section 301.6112-1, and the Administrative Agent and such Lender or Lenders, as
applicable, may file such IRS forms or maintain such lists and other records as they may determine
is required by such Treasury Regulations.
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12.19 USA Patriot Act.
Each Lender hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), such Lender may be required
to obtain, verify and record information that identifies the Borrower, which information includes
the name and address of the Borrower and other information that will allow such Lender to identify
the Borrower in accordance with said Act.
12.20 No Fiduciary Duty.
The Administrative Agent, each Lender and their Affiliates (collectively, solely for purposes
of this paragraph, the “Lenders”), may have economic interests that conflict with
those of the Borrower and its affiliates. The Borrower agrees that nothing in this Agreement
or otherwise shall be deemed to create an advisory, fiduciary or agency relationship or fiduciary
or other implied duty between the Lenders and the Borrower, its stockholders or its affiliates. The
Borrower acknowledges and agrees that (i) the transactions contemplated by this Agreement are
arm’s-length commercial transactions between the Lenders, on the one hand, and the Borrower, on the
other, (ii) in connection therewith and with the process leading to such transaction each of the
Lenders is acting solely as a principal and not the agent or fiduciary of the Borrower, its
management, stockholders, creditors or any other person, (iii) no Lender has assumed an advisory or
fiduciary responsibility in favor of the Borrower with respect to the transactions contemplated
hereby or the process leading thereto (irrespective of whether any Lender or any of its affiliates
has advised or is currently advising the Borrower on other matters) or any other obligation to the
Borrower except the obligations expressly set forth in this Agreement and (iv) the Borrower has
consulted its own legal and financial advisors to the extent it deemed appropriate. The Borrower
further acknowledges and agrees that it is responsible for making its own independent judgment with
respect to such transactions and the process leading thereto. The Borrower agrees that it shall not
claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary
or similar duty to the Borrower, in connection with such transaction or the process leading
thereto.
[Remainder of page intentionally left blank]
71
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement
to be duly executed and delivered as of the date first above written.
ITC HOLDINGS CORP., as the Borrower |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Executive Vice President, Treasurer & Chief Financial Officer | |||
Signature Page to ITC Holdings Credit Agreement
JPMORGAN CHASE BANK, N.A. as Administrative Agent, a Lender and as Letter of Credit Issuer |
||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Name: | Xxxxx X. Xxxxxx | |||
Title: | Credit Executive | |||
Signature Page to ITC Holdings Credit Agreement
BARCLAYS BANK PLC, as a Lender |
||||
By: | /s/ Xxx X. Xxxxxx | |||
Name: | Xxx X. Xxxxxx | |||
Title: | Director | |||
Signature Page to ITC Holdings Credit Agreement
COMERICA BANK, as a Lender |
||||
By: | /s/ Xxxxxxx Xxxxxxxx | |||
Name: | Xxxxxxx Xxxxxxxx | |||
Title: | Vice President | |||
Signature Page to ITC Holdings Credit Agreement
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH as a Lender |
||||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Vice President | |||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Associate | |||
Signature Page to ITC Holdings Credit Agreement
XXXXX FARGO BANK NATIONAL ASSOCIATION, as a Lender |
||||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Director | |||
Signature Page to ITC Holdings Credit Agreement
BANK OF AMERICA, N.A., as a Lender |
||||
By: | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Senior Vice President | |||
Signature Page to ITC Holdings Credit Agreement
DEUTSCHE BANK AG, NEW YORK BRANCH, as a Lender |
||||
By: | /s/ Xxxxxxxx Xxxxxxxxx | |||
Name: | Xxxxxxxx Xxxxxxxxx | |||
Title: | Managing Director | |||
By: | /s/ Xxxxxx X. Xxxxx | |||
Name: | Xxxxxx X. Xxxxx | |||
Title: | Director | |||
Signature Page to ITC Holdings Credit Agreement
XXXXXXX SACHS BANK USA, as a Lender |
||||
By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Authorized Signatory | |||
Signature Page to ITC Holdings Credit Agreement
XXXXXX XXXXXXX BANK, N.A., as a Lender |
||||
By: | /s/ Xxxxxxxx Xxxxxx | |||
Name: | Xxxxxxxx Xxxxxx | |||
Title: | Authorized Signatory | |||
Signature Page to ITC Holdings Credit Agreement
PNC BANK, NATIONAL ASSOCIATION, as a Lender |
||||
By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxx | |||
Title: | Senior Vice President | |||
Signature Page to ITC Holdings Credit Agreement
SCHEDULE I
COMMITMENTS
COMMITMENTS
REVOLVING | ||||||||||
REVOLVING | CREDIT | |||||||||
CREDIT | COMMITMENT | |||||||||
LENDER | ADDRESS FOR NOTICES | COMMITMENT | PERCENTAGE | |||||||
JPMorgan Chase | JPMorgan Chase Bank, N.A. |
$ | 32,500,000 | 16.25 | % | |||||
Bank, N.A. | Loan Operations 00 Xxxxx Xxxxxxxx, 0xx Xxxxx Xxxxxxx, XX 00000 Attention: Xxxxxxxx Xxxx Facsimile No.: (000) 000-0000 |
|||||||||
with copy to (except in the case of
notices relating to borrowings,
continuations and conversions): |
||||||||||
JPMorgan Chase Bank, N.A. 00 Xxxxx Xxxxxxxx, 0xx Xxxxx Mail Code XX0-0000 Xxxxxxx, XX 00000 Attention: Xxxxx X. Xxxxxx Credit Executive, Corporate Client Banking, Power and Utilities Facsimile No.: (000) 000-0000 |
||||||||||
and |
||||||||||
JPMorgan Chase Bank, N.A. Portfolio Management Administration 00 Xxxxx Xxxxxxxx, 0xx Xxxxx Mail Code IL1-0874 Xxxxxxx, XX 00000 Attention: Xxxx XxXxxxx Facsimile No.: (000) 000-0000 |
||||||||||
Barclays Bank PLC | Barclays Capital |
$ | 32,500,000 | 16.25 | % | |||||
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxxxx Fax: (000) 000-0000 |
||||||||||
Comerica Bank | Comerica Bank |
$ | 22,500,000 | 11.25 | % | |||||
0000 Xxxxxx Xxxx |
||||||||||
Xxxxxx Xxxxx, XX 00000 |
||||||||||
Attention: Xxxxxxx Xxxxxxxx |
||||||||||
Fax: 000-000-0000 |
REVOLVING | ||||||||||
REVOLVING | CREDIT | |||||||||
CREDIT | COMMITMENT | |||||||||
LENDER | ADDRESS FOR NOTICES | COMMITMENT | PERCENTAGE | |||||||
Credit Suisse AG, Cayman Islands Branch | Credit Suisse AG, Cayman Islands Branch Eleven Madison Avenue |
$ | 22,500,000 | 11.25 | % | |||||
Xxx Xxxx, XX 00000 Attention: Xxxxxxx Xxxxx Fax: 000-000-0000 |
||||||||||
Xxxxx Fargo Bank, National Association | Xxxxx Fargo Bank, National Association |
$ | 22,500,000 | 11.25 | % | |||||
00 X. 0xx Xxxxxx |
||||||||||
XXX: X0000-000 Xxxxxxxxxxx, XX 00000 Attention: Xxxxx Xxxxxx Fax: (000) 000-0000 |
||||||||||
Bank of America, | Bank of America Xxxxxxx Xxxxx |
$ | 13,500,000 | 6.75 | % | |||||
N.A. | 000 X. XxXxxxx Xxxxxx XX 4-135-04-61 Xxxxxxx, XX 00000 Attention: Xxxxxx Xxxxxxx Fax: (000) 000-0000 |
|||||||||
Deutsche Bank AG New York Branch | Deutsche Bank AG New York Branch |
$ | 13,500,000 | 6.75 | % | |||||
00 Xxxx Xxxxxx, Xxxxx 0 Xxx Xxxx, XX 00000 Attention: Xxxxx X. Xxxxxxxxx Fax: (000) 000-0000 |
||||||||||
Xxxxxxx Xxxxx Bank | Xxxxxxx Sachs Bank USA |
$ | 13,500,000 | 6.75 | % | |||||
USA | 000 Xxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxx Xxx Fax: 000-000-0000 |
|||||||||
Xxxxxx Xxxxxxx | Xxxxxx Xxxxxxx Loan Servicing |
$ | 13,500,000 | 6.75 | % | |||||
Bank, N.A. | 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 Fax: 000-000-0000 |
|||||||||
PNC Bank, National Association | PNC Bank, National Association |
$ | 13,500,000 | 6.75 | % | |||||
000 Xxxxx Xxxxxx Xxxxxxxxxx, XX 00000 Attention: Xxxxx X Xxxxxx Fax: 000-000-0000 |
||||||||||
Total amount |
$200,000,000.00 | 100 | % |
SCHEDULE II
ENVIRONMENTAL MATTERS
ENVIRONMENTAL MATTERS
None.
SCHEDULE III
PENSION AND WELFARE MATTERS
PENSION AND WELFARE MATTERS
The International Transmission Company Postretirement Welfare Plan as described in Note 11 to
the Borrower’s financial statements set forth in the Borrower’s Form 10-K for the period ending
December 31, 2010.
SCHEDULE IV
OUTSTANDING LIENS ON CLOSING DATE
OUTSTANDING LIENS ON CLOSING DATE
None.
SCHEDULE V
EXISTING LETTERS OF CREDIT
EXISTING LETTERS OF CREDIT
Ref number
|
Outstanding | Release Date | Maturity Date | Beneficiary Name | ||||||
CPCS-724007
|
$ | 800,000.00 | APR 21, 2009 | FEB 28, 2012 | Federal Insurance Company |
EXHIBIT A
Form of Notice of Borrowing
NOTICE OF BORROWING
TO: | JPMorgan Chase Bank, N.A. Loan Operations 00 Xxxxx Xxxxxxxx, 0xx Xxxxx Xxxxxxx, XX 00000 Attention: Xxxxxxxx Xxxx Facsimile No.: (000) 000-0000 |
Pursuant to the Revolving Credit Agreement, dated as of May 17, 2011 (as the same may be
amended, modified, supplemented, restated or replaced from time to time, the “Revolving Credit
Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein
defined), among ITC Holdings Corp., a Michigan corporation (the “Borrower”), the various financial
institutions and other persons from time to time referred to as “Lenders” in the Revolving Credit
Agreement, and JPMorgan Chase Bank, N.A., as the Administrative Agent, this represents the
Borrower’s request to borrow as follows:
Revolving Credit Loan:
1. | Date of borrowing: | |
2. | Amount of borrowing: | |
3. | Lender(s): Lenders, in accordance with their Revolving Credit Commitments under the Revolving Credit Agreement | |
4. | Interest rate option: |
Type: | |||
Tenor: |
Please wire transfer the proceeds of the Borrowing in accordance with the funds flow
memorandum delivered under separate cover.
The undersigned officer, to the best of his or her knowledge, in his or her capacity as an
officer of the Borrower certifies that:
(i) All representations and warranties made by the Borrower contained in the Revolving
Credit Agreement are true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of the date hereof
(except where such representations and warranties expressly relate to an earlier date, in
which case such representations and warranties are true and correct in all material
respects as of such earlier date) provided that, the representation made in Section
7.14 shall be made only on the Closing Date; and
(ii) No event has occurred and is continuing or would result from the consummation of
the Borrowing contemplated hereby that would constitute a Default or an Event of Default.
Dated:
ITC HOLDINGS CORP. |
||||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT B
Form of Notice of Continuation
TO: | JPMorgan Chase Bank, N.A., as Administrative Agent under the Credit Agreement (as defined below) Loan Operations 00 Xxxxx Xxxxxxxx, 0xx Xxxxx Xxxxxxx, XX 00000 Attention: Xxxxxxxx Xxxx Facsimile No.: (000) 000-0000 |
Pursuant to the Revolving Credit Agreement, dated as of May 17, 2011 (as the same may be
amended, modified, supplemented, restated or replaced from time to time, the “Revolving Credit
Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein
defined), among ITC Holdings Corp., a Michigan corporation (the “Borrower”), the various financial
institutions and other persons from time to time referred to as “Lenders” in the Revolving Credit
Agreement (the “Lenders”), JPMorgan Chase Bank, N.A., as the Administrative Agent, this represents
the Borrower’s request to continue Revolving Credit Loans as follows:
1. | Date of continuation or conversion: | ||
_________________, _____ | |||
2. | Amount of Revolving Credit Loans being continued or converted: | ||
$_______________________ | |||
3. | Nature of continuation or conversion: |
__________ | a. | Conversion of a LIBOR Loan as an ABR Loan | ||||
__________ | b. | Conversion of an ABR Loan as a LIBOR Loan | ||||
__________ | c. | Continuation (rollover) of LIBOR Loans as LIBOR Loans |
4. | If Revolving Credit Loans are being continued as or converted into LIBOR Loans, the duration of the new LIBOR Period that commences on the continuation or conversion date: | ||
__________ month(s) |
Dated: ___________________
ITC HOLDINGS CORP. |
||||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT C
Form of Letter of Credit Request
TO: | JPMorgan Chase Bank, N.A. Loan Operations 00 Xxxxx Xxxxxxxx, 0xx Xxxxx Xxxxxxx, XX 00000 Attention: Xxxxxx Xxxxx Relationship Executive Senior, Corporate Client Banking Power and Utilities Facsimile No.: (000) 000-0000 |
Pursuant to the Revolving Credit Agreement, dated as of May 17, 2011 (as the same may be
amended, modified, supplemented, restated or replaced from time to time, the “Revolving Credit
Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein
defined), among ITC Holdings Corp., a Michigan corporation (the “Borrower”), the various financial
institutions and other persons from time to time referred to as “Lenders” in the Revolving Credit
Agreement (the “Lenders”), and JPMorgan Chase Bank, N.A., as the Administrative Agent, this
represents the Borrower’s request to issue letter(s) of credit as follows:
Letter of Credit Request: | ||||||||||
1. | Date of issuance: | |||||||||
2. | Stated Amount of Letter of Credit: | |||||||||
3. | Beneficiary Name: | |||||||||
Address: | ||||||||
Telephone: | ||||||||
Facsimile: | ||||||||
Email: | ||||||||
4. | Expiration Date: | |||||||||
5. | Proposed Terms or Verbatim Text attached: | |||||||||
The undersigned officer, to the best of [his/her]
knowledge, in [his/her] capacity as an officer of the Borrower
certifies that:
(i.) All representations and warranties made by the Borrower contained in the Revolving
Credit Agreement are true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of the date hereof
(except where such representations and warranties expressly relate to an earlier date, in
which case such representations and warranties are true and correct in all material respects
as of such earlier date); and
(ii.) No event has occurred and is continuing or would result from the consummation of the
Borrowing contemplated hereby that would constitute a Default or an Event of Default.
Dated:
ITC HOLDINGS CORP. |
||||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT D
Form of Closing Certificate
CLOSING CERTIFICATE
ITC HOLDINGS CORP.
TO: The Lenders and the Administrative Agent (each, as defined below)
RE: Revolving Credit Agreement, dated as of May 17, 2011 (as the same may be amended, modified,
supplemented, restated or replaced from time to time, the “Revolving Credit Agreement”; the terms
defined therein and not otherwise defined herein being used herein as therein defined), among ITC
Holdings Corp., a Michigan corporation (the “Borrower”), the various financial institutions and
other persons from time to time referred to as “Lenders” in the Revolving Credit Agreement, and
JPMorgan Chase Bank, N.A., as the Administrative Agent.
I, the undersigned, an Authorized Officer of the Borrower, hereby certifies to the best of my
knowledge, information and belief, for and on behalf of the Borrower, and not in my personal
capacity, in connection with the initial Borrowing on this date under the Revolving Credit
Agreement, that:
1. | the conditions precedent set forth in the Revolving Credit Agreement were satisfied as of the Closing Date; | |
2. | attached to this certificate as Schedule A is a true and complete copy of the Certificate of Incorporation of the Borrower as filed in the Office of the Secretary of State of the State of Michigan, together with all amendments thereto adopted through the date hereof and as in effect on the date hereof and the Borrower has not passed, confirmed or consented to any amendments or variations to such Certificate of Incorporation; | |
3. | attached to this certificate as Schedule B is a correct and complete copy of the Bylaws of the Borrower and such Bylaws are in full force and effect on the date hereof and as of the date hereof the Borrower has not passed, confirmed or consented to any amendments or variations to such Bylaws; | |
4. | Attached hereto as Schedule C is a true and complete copy of the resolutions duly adopted by the Board of Directors of the Borrower at a meeting of such Board of Directors held on [_____] [__], 20[__], approving and authorizing the execution, delivery and performance of the Revolving Credit Agreement and the transactions contemplated thereby. Such resolutions have not been amended, modified, revoked or rescinded since the date of adoption thereof, are in full force and effect on the date hereof and are the only resolutions that have been adopted by the Board of Directors of the Borrower with respect to the subject matter thereof; | |
5. | The persons whose names appear on Schedule D attached hereto are duly elected, qualified and acting officers of the Borrower occupying the offices set forth opposite their respective names on Schedule D, and the signature set forth opposite their respective |
names are their true and genuine signatures, and each of such officers is duly authorized to execute and deliver the Revolving Credit Agreement on behalf of the Borrower and each of the related documents to which it is a party and any other agreement, instrument or document to be delivered by the Borrower pursuant to the Credit Agreement. |
* * * * *
IN WITNESS WHEREOF, I have signed this Certificate this ___ day of May, 2011.
Name: | Xxxxxx X. Xxxxxxx | |||||
Title: | Senior Vice President and General Counsel |
I, Xxxxxxx X. Xxxxxx, Executive Vice President, Treasurer and Chief Financial Officer of the
Borrower, DO HEREBY CERTIFY that Xxxxxx X. Xxxxxxx has been duly elected (or appointed) and has
duly qualified as, and on this day is, the Senior Vice President and General Counsel of the
Borrower, and the signature above is his genuine signature.
Name: | Xxxxxxx X. Xxxxxx | |||||
Title: | Executive Vice President, Treasurer | |||||
and Chief Financial Officer |
Schedule A
Certificate of Incorporation
[See Attached]
Schedule B
Bylaws
[See Attached]
Bylaws
[See Attached]
Schedule C
Resolutions
[See Attached]
Schedule D
Incumbency
Xxxxxx X. Xxxxxxx |
||||
Senior Vice President and |
||||
General Counsel
|
||||
Xxxxxxx X. Xxxxxx |
||||
Executive Vice President, Treasurer |
||||
and Chief Financial Officer
|
EXHIBIT E
Form of Compliance Certificate
ITC HOLDINGS CORP.
TO: The Lenders and the Administrative Agent
The undersigned, an Authorized Officer of ITC Holdings Corp. (the “Borrower”), in such capacity and
not personally, hereby certifies to the best of my knowledge, information and belief that:
1. | I am the duly appointed ___________________________ of the Borrower named in the Revolving Credit Agreement, dated as of May 17, 2011 (as the same may be amended, modified, supplemented, restated or replaced from time to time, the “Revolving Credit Agreement”), among ITC Holdings Corp., a Michigan corporation (the “Borrower”), the various financial institutions and other persons from time to time referred to as “Lenders” in the Revolving Credit Agreement, and JPMorgan Chase Bank, N.A., as the Administrative Agent and as such I am providing this certificate for and on behalf of the Borrower pursuant to Section 8.1(c) of the Revolving Credit Agreement. Unless the context otherwise requires, capitalized terms in the Revolving Credit Agreement which appear herein without definitions shall have the meanings ascribed thereto in the Revolving Credit Agreement. | |
2. | I am familiar with and have examined the provisions of the Revolving Credit Agreement including those of Articles 7, 8, 9 and 10 therein and have reviewed and am familiar with the contents of this certificate. | |
3. | Delivered herewith are the financial statements required to be delivered pursuant to Section 8.1[(a)] [(b)] of the Revolving Credit Agreement. | |
4. | No Default or Event of Default has occurred and is continuing as of the date hereof [or if any Default or Event of Default does exist, specify the nature and extent thereof]. | |
5. | As of the last day of the fiscal quarter ending ________, the financial ratio referred to in Section 9.4 of the Revolving Credit Agreement is ____:____ and was calculated as set forth in Schedule I. |
Dated this day of _________, ___.
Schedule I
ITC HOLDINGS CORP.
Debt to Capitalization Ratio1
1. Total Debt as of the last day of the fiscal quarter ending _______. |
$ | ___________ | ||
2. Total Capitalization as of the last day of the fiscal quarter
ending _______. |
||||
(a) Total Debt |
$ | ___________ | ||
(b) Total stockholder’s equity of the Borrower |
$ | ___________ | ||
(c) Total Capitalization: The sum of Items 2(a) and 2(b) |
$ | ___________ | ||
3. DEBT TO CAPITALIZATION RATIO: the ratio of Item 1 to Item 2 |
_____ | % | ||
4. Maximum Debt to Capitalization Ratio allowed |
75 | % | ||
5. In compliance |
YES/NO |
1 | Financial covenants shall be calculated (i) without giving effect to any election by the Borrower or any of its subsidiaries to value any of its indebtedness or liabilities at “fair value” pursuant to Accounting Standards Codification 000-00-00 (formerly referred to as Statement of Financial Accounting Standards 159) or any other accounting standards codification or financial accounting standard having a similar result or effect and (ii) without giving effect to any treatment of indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 to value any such indebtedness in a reduced or bifurcated manner as described therein, and such indebtedness shall at all times be valued at the full stated principal amount thereof. |