exv10w63



 





EXHIBIT 10.63




EXECUTION COUNTERPART



U.S. $50,000,000


REVOLVING CREDIT AGREEMENT,


dated as of January 29, 2008,


ITC MIDWEST LLC

as the Borrower,


VARIOUS FINANCIAL INSTITUTIONS AND OTHER

PERSONS FROM TIME TO TIME PARTIES HERETO,

as the Lenders,


JPMORGAN CHASE BANK, N.A.,

as the Administrative Agent


J.P. MORGAN SECURITIES INC.,

as Sole Lead Arranger and Sole Bookrunner


CREDIT SUISSE, CAYMAN ISLANDS BRANCH

as Syndication Agent


LEHMAN BROTHERS BANK, FSB

as Documentation Agent




 









 








	 	 	 	 	 
	 
	 	 	 	 
	ARTICLE 1 DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	1.1 Defined Terms
	 	 	1	 
	 
	 	 	 	 
	1.2 Accounting Terms; GAAP
	 	 	14	 
	 
	 	 	 	 
	1.3 Interpretation
	 	 	14	 
	 
	 	 	 	 
	ARTICLE 2 AMOUNT AND TERMS OF CREDIT
	 	 	14	 
	 
	 	 	 	 
	2.1 Commitments
	 	 	14	 
	 
	 	 	 	 
	2.2 Minimum Amount of Each Borrowing; Maximum Number of Borrowings
	 	 	15	 
	 
	 	 	 	 
	2.3 Notice of Borrowing
	 	 	15	 
	 
	 	 	 	 
	2.4 Disbursement of Funds
	 	 	16	 
	 
	 	 	 	 
	2.5 Repayment of Loans; Evidence of Debt
	 	 	17	 
	 
	 	 	 	 
	2.6 Changes in Type of Revolving Credit Loan
	 	 	18	 
	 
	 	 	 	 
	2.7 Pro Rata Borrowings
	 	 	19	 
	 
	 	 	 	 
	2.8 Interest and Fees
	 	 	19	 
	 
	 	 	 	 
	2.9 Interest Periods
	 	 	20	 
	 
	 	 	 	 
	2.10
Increased Costs, Illegality, etc.
	 	 	21	 
	 
	 	 	 	 
	2.11 Compensation
	 	 	23	 
	 
	 	 	 	 
	2.12 Change of Lending Office
	 	 	23	 
	 
	 	 	 	 
	2.13 Notice of Certain Costs
	 	 	23	 
	 
	 	 	 	 
	2.14 Extension of Commitment Termination Date
	 	 	24	 
	 
	 	 	 	 
	2.15 Swingline Loans
	 	 	25	 
	 
	 	 	 	 
	ARTICLE 3 LETTERS OF CREDIT
	 	 	27	 
	 
	 	 	 	 
	3.1 Generally
	 	 	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
	 	 	34	 
	 
	 	 	 	 
	4.3 Commitment Increases
	 	 	34	 
	 
	 	 	 	 
	4.4 Mandatory Termination of Commitments
	 	 	36	 
	 
	 	 	 	 
	ARTICLE 5 PAYMENTS
	 	 	36	 






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	5.1 Prepayments
	 	 	36	 
	 
	 	 	 	 
	5.2 Method and Place of Payment
	 	 	36	 
	 
	 	 	 	 
	5.3 Net Payments
	 	 	37	 
	 
	 	 	 	 
	5.4 Computations of Interest and Fees
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 6 CONDITIONS PRECEDENT
	 	 	40	 
	 
	 	 	 	 
	6.1 Conditions Precedent to Initial Credit Event
	 	 	40	 
	 
	 	 	 	 
	6.2 Conditions Precedent to All Credit Events
	 	 	41	 
	 
	 	 	 	 
	ARTICLE 7 REPRESENTATIONS AND WARRANTIES
	 	 	42	 
	 
	 	 	 	 
	7.1 Organizational Status
	 	 	42	 
	 
	 	 	 	 
	7.2 Capacity, Power and Authority
	 	 	42	 
	 
	 	 	 	 
	7.3 No Violation
	 	 	43	 
	 
	 	 	 	 
	7.4 Litigation
	 	 	43	 
	 
	 	 	 	 
	7.5 Governmental Approvals
	 	 	43	 
	 
	 	 	 	 
	7.6 True and Complete Disclosure
	 	 	43	 
	 
	 	 	 	 
	7.7 Financial Condition; Financial Statements
	 	 	44	 
	 
	 	 	 	 
	7.8 Tax Returns and Payments
	 	 	44	 
	 
	 	 	 	 
	7.9 Environmental Matters
	 	 	44	 
	 
	 	 	 	 
	7.10 Properties
	 	 	45	 
	 
	 	 	 	 
	7.11 Pension and Welfare Plans
	 	 	45	 
	 
	 	 	 	 
	7.12 Regulations U and X
	 	 	45	 
	 
	 	 	 	 
	7.13 Investment Company Act
	 	 	45	 
	 
	 	 	 	 
	7.14 No Material Adverse Change
	 	 	45	 
	 
	 	 	 	 
	7.15 Deemed Repetition of Representations and Warranties
	 	 	45	 
	 
	 	 	 	 
	ARTICLE 8 AFFIRMATIVE COVENANTS
	 	 	46	 
	 
	 	 	 	 
	8.1 Information Covenants
	 	 	46	 
	 
	 	 	 	 
	8.2 Books, Record and Inspections
	 	 	48	 
	 
	 	 	 	 
	8.3 Maintenance of Insurance
	 	 	48	 
	 
	 	 	 	 
	8.4 Payment of Taxes
	 	 	49	 
	 
	 	 	 	 
	8.5 Organizational Existence
	 	 	49	 
	 
	 	 	 	 
	8.6
Compliance with Statutes, Obligations, etc.
	 	 	49	 
	 
	 	 	 	 
	8.7 Good Repair
	 	 	49	 
	 
	 	 	 	 
	8.8 Transactions with Affiliates
	 	 	49	 
	 
	 	 	 	 
	8.9 End of Fiscal Years; Fiscal Quarters
	 	 	50	 






ii









 






	 	 	 	 	 
	8.10 Use of Proceeds
	 	 	50	 
	 
	 	 	 	 
	8.11 Changes in Business
	 	 	50	 
	 
	 	 	 	 
	ARTICLE 9 NEGATIVE COVENANTS
	 	 	50	 
	 
	 	 	 	 
	9.1 Limitation on Liens
	 	 	50	 
	 
	 	 	 	 
	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 Judgments
	 	 	54	 
	 
	 	 	 	 
	10.7 Change of Ownership
	 	 	55	 
	 
	 	 	 	 
	10.8 Pension Plans
	 	 	55	 
	 
	 	 	 	 
	10.9 Remedies
	 	 	55	 
	 
	 	 	 	 
	10.10 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	 






iii









 






	 	 	 	 	 
	12.13 Governing Law
	 	 	69	 
	 
	 	 	 	 
	12.14 Submission to Jurisdiction; Waivers
	 	 	69	 
	 
	 	 	 	 
	12.15 Acknowledgements
	 	 	69	 
	 
	 	 	 	 
	12.16 Waivers of Jury Trial
	 	 	70	 
	 
	 	 	 	 
	12.17 Confidentiality
	 	 	70	 
	 
	 	 	 	 
	12.18 Treatment of Loans
	 	 	70	 
	 
	 	 	 	 
	12.19 USA Patriot Act
	 	 	71	 






iv









 






	 	 	 
	SCHEDULES:
	 	 
	 
	 	 
	Schedule I
	 	Commitments
	Schedule II
	 	Environmental Matters
	Schedule III
	 	Pension and Welfare Matters
	Schedule IV
	 	Outstanding Liens on Closing Date
	 
	 	 
	EXHIBITS:
	 	 
	 
	 	 
	Exhibit A
	 	Form of Notice of Borrowing
	Exhibit B
	 	Form of Notice of Continuation
	Exhibit C
	 	Form of Closing Certificate
	Exhibit D
	 	Form of New Lender Supplement
	Exhibit E
	 	Form of Commitment Increase Supplement
	Exhibit F
	 	Form of Compliance Certificate
	Exhibit G
	 	Form of Letter of Credit Request






v









 






     REVOLVING CREDIT AGREEMENT, dated as of January 29, 2008, among ITC MIDWEST LLC, a Michigan
limited liability company (the “Borrower”), various financial institutions and other Persons from
time to time parties hereto as lenders (each a “Lender” and, collectively, the “Lenders” (which
term shall include, unless the context otherwise requires, the Swingline Lender)) 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 $50,000,000 (subject to increase to $75,000,000 as provided herein) at any one
time outstanding. The Lenders are prepared to make such loans upon the terms and conditions
hereof, and, accordingly, the parties hereto agree as follows:



ARTICLE 1

DEFINITIONS




     As used herein, the following terms shall have the meanings specified in this Article 1 unless
the context otherwise requires (it being understood that defined terms in this Agreement shall
include in the singular number the plural and in the plural the singular):



     1.1 Defined Terms.



     “ABR” shall mean, for any day, a rate per annum equal to the greater of (a) the rate of
interest (however designated) established by the Administrative Agent as its prime rate in effect
at its principal office in New York, New York and (b) the Federal Funds Effective Rate in effect on
such day plus 0.5%. Any change in the ABR due to a change in any of the foregoing rates shall be
effective as of the opening of business on the effective date of such change in such rate.



     “ABR Loan” shall mean each Loan bearing interest at the rate provided in Section 2.8(a).



     “Acquisition” shall mean the Borrower’s acquisition of the Purchased Assets in accordance with
the Asset Sale Agreement.



     “Administrative Agent” shall have the meaning provided in the preamble to this Agreement and
shall include such other financial institution as may be appointed as the successor administrative
agent in the manner and to the extent described in Section 11.9.



     “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the
Administrative Agent.



     “Affiliate” shall mean, with respect to any Person, (a) any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common control with such Person,
and (b) any other Person in which such Person directly or indirectly through Subsidiaries has a 10%
or greater equity interest. A Person shall be deemed to control a Person if such Person possesses,
directly or indirectly, the power (i) to vote 10% or more of the Voting Stock having ordinary
voting power for the election of directors (or the equivalent) of such other Person or (ii) to
direct or cause the direction of the management and policies of such other Person, whether through
the ownership of Capital Stock, by contract or otherwise.



 









 





     “Agreement” shall mean this Revolving Credit Agreement, as the same may be amended, modified,
supplemented, restated or replaced from time to time.



     “Applicable Additional Interest Rate” for the purpose of Sections 2.8(d) and 4.1(b) shall have
the meaning given to that term in the definition of “Applicable Margin”.



     “Applicable Margin”, “Applicable Additional Interest Rate” and “Commitment Fee Rate” shall
mean, for any day, the applicable rate per annum set forth below under the caption “Applicable
Margin”, “Applicable Additional Interest Rate”, “Commitment Fee Rate”, respectively, based upon the
ratings by Moody’s and S&P, respectively, applicable on such date to the Borrower’s
non-credit-enhanced long term senior unsecured debt:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Applicable Additional	 	 
	 	 	 	 	 	 	Applicable Margin	 	Interest Rate	 	 
	 	 	Borrower’s Debt	 	LIBOR	 	 	 	 	 	LIBOR	 	 	 	Commitment
	 	 	Rating:	 	Loan	 	ABR Loan	 	Loan	 	ABR Loan	 	Fee Rate
	 
	 	Category 1	 	 	0.20	%	 	 	0	%	 	 	0.05	%	 	 	0	%	 	 	0.05	%
	 
	 	A+/A1 or higher	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Category 2	 	 	0.25	%	 	 	0	%	 	 	0.05	%	 	 	0	%	 	 	0.06	%
	 
	 	 	A/A2	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Category 3	 	 	0.30	%	 	 	0	%	 	 	0.05	%	 	 	0	%	 	 	0.07	%
	 
	 	 	A-/A3	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Category 4	 	 	0.35	%	 	 	0	%	 	 	0.05	%	 	 	0	%	 	 	0.08	%
	 
	 	BBB+/Baa1	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Category 5	 	 	0.45	%	 	 	0	%	 	 	0.05	%	 	 	0	%	 	 	0.10	%
	 
	 	BBB/Baa2	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Category 6	 	 	0.625	%	 	 	0	%	 	 	0.10	%	 	 	0	%	 	 	0.125	%
	 
	 	BBB-/Baa3	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Category 7	 	 	0.75	%	 	 	0	%	 	 	0.10	%	 	 	0	%	 	 	0.175	%
	 
	 	BB+/Ba1	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Category 8	 	 	1.00	%	 	 	0	%	 	 	0.10	%	 	 	0.10	%	 	 	0.20	%
	 
	 	BB/Ba2 or lower	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







     For purposes of this definition, (i) if no non-credit-enhanced long term senior unsecured debt
rating is available, the Applicable Margin, the Applicable Additional Interest Rate and the
Commitment Fee Rate shall be determined by reference to the Category next below the Borrower’s long
term senior secured debt rating, (ii) if the ratings established by Moody’s and S&P shall fall
within different Categories, the Applicable Margin, the Applicable Additional Interest Rate and the
Commitment Fee Rate shall be based on the higher of the two ratings unless one of the two ratings
is two or more Categories lower than the other, in which case the Applicable Margin, the Applicable
Additional Interest Rate and the Commitment Fee Rate shall



2









 




be determined by reference to the Category next below the higher of the two Categories, (iii) if
only one rating is available from either Moody’s or S&P, then such rating shall be used to
determine the applicable Category, (iv) if neither Moody’s nor S&P shall have in effect a rating
for the Borrower’s non-credit-enhanced long term senior unsecured debt and no rating for the
Borrower’s long term senior secured debt, then Category 8 above shall apply, and (v) if the ratings
established or deemed to have been established by Moody’s and S&P shall be changed (other than as a
result of a change in the rating system of Moody’s or S&P), such change shall be effective as of
the date on which it is first announced by the applicable rating agency. Each change in the
Applicable Margin, Applicable Additional Interest Rate and the Commitment Fee Rate shall apply
during the period commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating system of Moody’s
or S&P shall change, or if either such rating agency shall cease to be in the business of rating
corporate debt obligations, the Borrower and the Lenders shall negotiate in good faith to amend
this definition to reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the Applicable Margin, the
Applicable Additional Interest Rate and the Commitment Fee Rate shall be determined by reference to
the rating most recently in effect prior to such change or cessation.




     “Approved Fund” shall mean any Person (other than a natural person) that is or will be engaged
in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business and that is administered or managed by a Lender, an
Affiliate of a Lender or an entity or an Affiliate of an entity that administers or manages a
Lender.



     “Arranger” shall mean J.P. Morgan Securities Inc.



     “Asset Sale Agreement” shall mean the Asset Sale Agreement dated as of January 18, 2007
between Interstate Power and Light Company, an Iowa corporation, and the Borrower.



     “Assignee” shall have the meaning provided in Section 12.6(a)(ii).



     “Assignment and Acceptance” shall mean the assignment and acceptance agreement delivered by
each Assignee pursuant to Section 12.6(a)(ii).



     “Assignment Effective Date” shall have the meaning provided in 12.6(a)(ii).



     “Attributable Value” means, with respect to any Sale and Leaseback Transaction, as of the time
of determination, the lesser of (i) the sale price of the property or assets so leased multiplied
by a fraction the numerator of which is the remaining portion of the base term of the lease
included in such Sale and Leaseback Transaction and the denominator of which is the base term of
such lease, and (ii) the total obligation (discounted to present value at the rate of interest
specified by the terms of such lease) of the lessee for rental payments (other than amounts
required to be paid on account of property taxes as well as maintenance, repairs, insurance, water
rates and other items which do not constitute payments for property rights) during the remaining
portion of the base term of the lease included in such Sale and Leaseback Transaction.



3









 





     “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) the portion of such Lender’s Letter of Credit Exposure.



     “Bankruptcy Code” shall have the meaning provided in Section 10.5.



     “Borrower” shall have the meaning provided in the recitals to this Agreement.



     “Borrowing” shall mean the incurrence of one Type of Revolving Credit Loan on a given date (or
resulting from conversions or continuations on a given date) 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 Holdco; and/or (ii) Holdco
ceases to own, directly or indirectly, 100% of the Voting Stock of the Borrower; and/or (iii) a
majority of the incumbent directors of Holdco cease to be persons who were either (x) directors of
Holdco on the Closing Date or (y) new directors (such persons being called herein “New
Members”) appointed or nominated for election by one or more persons who were members of the
board of directors of Holdco on the Closing Date or who were appointed or nominated by one or more
such New Members whether or not they were members on the Closing Date.



     “Closing Date” shall mean January 29, 2008.



     “Code” shall mean the Internal Revenue Code of 1986, and the regulations thereunder, in each
case as amended, reformed or otherwise modified from time to time.



     “Commitment Fee Rate” shall have the meaning given to that term in the definition of
“Applicable Margin”.



     “Commitment Increase Supplement” shall have the meaning provided for in Section 3.3(d).



     “Compliance Certificate” shall have the meaning provided in Section 8.1(c).



     “Confidential Information” shall have the meaning provided in Section 12.17.



     “Control”, “Controls” and “Controlled”, when used with respect to any Person, shall mean the
power to direct the management and policies of such Person, directly or indirectly, whether through
ownership of Voting Stock, by contract or otherwise.



     “Controlled Group”, when used with respect to any Person, 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.



     “Cost of Funds Rate” shall mean, for any day, the fluctuating rate of interest per annum for
such day equal to the “ASK” rate for Federal funds appearing on Page 5 of the Telerate Service (or
on any successor or substitute page of such Service, or any successor or substitute for such
Service, providing rate quotations comparable to those currently provided on such page of such
Service, as determined by the Administrative Agent from time to time for purposes of providing
quotations of the offer rates applicable to Federal funds for a term of one Business Day) at the
time reviewed by the Administrative Agent.



     “Cost of Funds Rate Loan” shall mean a Swingline Loan that bears interest at a rate based upon
the Cost of Funds Rate.



     “Credit Event” shall mean and include the making (but not the conversion or continuation) of a
Loan and the issuance, extension or increase of a Letter of Credit.



5









 





     “Debt to Capitalization Ratio” shall mean, with respect to any Person, as of any date of
determination, the ratio of (a) Total Debt for such Person for the relevant Test Period to (b)
Total Capitalization for such Person for such Test Period.



     “Default” shall mean any event, act or condition that with notice or lapse of time, or both,
would constitute an Event of Default.



     “Defaulting Lender” shall mean any Lender with respect to which a Lender Default is in effect.



     “Dollars” and “$” shall mean lawful currency of the United States.



     “Environmental Claims” shall mean, 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 thereunder, in each case
as in effect from time to time. References to Sections of ERISA also refer to any successor
Sections thereto.



     “Event of Default” shall have the meaning provided in Article 10.



     “Federal Funds Effective Rate” shall mean, for any day, the weighted average of the per annum
rates on overnight federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that is a Business Day, the
average of the quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.



     “Fees” shall mean all amounts payable pursuant to, or referred to in, Section 4.1.



6









 





     “Finance Parties” shall mean the Administrative Agent and the Lenders.



     “First Mortgage Indenture” shall mean the First Mortgage Deed of Trust dated as of January 14,
2008 between ITC Midwest LLC and 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.



     “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 (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.



7









 





     “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.



     “Holdco” means ITC Holdings Corp., a Michigan corporation.



     “including” and “include” shall mean including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement, the parties hereto agree that
the rule of ejusdem generis shall not be applicable to limit a general statement, which is followed
by or referable to an enumeration of specific matters, to matters similar to the matters
specifically mentioned.



     “Indebtedness” of any Person shall mean (a) all indebtedness of such Person for borrowed
money, (b) the deferred purchase price of assets or services that in accordance with GAAP would be
classified as a liability on the balance sheet of such Person, (c) the face amount of all letters
of credit issued for the account of such Person and, without duplication, all drafts drawn
thereunder, (d) all Indebtedness of a second Person secured by any Lien on any property owned by
such first Person, whether or not such Indebtedness has been assumed, (e) all Capitalized Lease
Obligations of such Person, (f) all existing payment obligations of such Person under interest rate
swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements, (g) all existing payment
obligations of such Person under commodity future contracts and other similar agreements and
(h) without duplication, all Guarantee Obligations of such Person; provided that, Indebtedness
shall not include current payables and accrued expenses, in each case arising in the ordinary
course of business.



     “L/C Maturity Date” shall mean the date that is five Business Days prior to the Revolving
Credit Maturity Date.



     “L/C Participant” shall have the meaning provided in Section 3.3(a).



     “L/C Participation” shall have the meaning provided in Section 3.3(a).



     “Lender” and “Lenders” shall have the respective meanings provided in the preamble to this
Agreement.



     “Lender Default” shall mean a Lender having notified the Administrative Agent and/or the
Borrower that it does not intend to comply with the obligations under Section 2.1(a) as a result of
the control of such Lender being assumed by any regulatory authority or the appointment of a
receiver or conservator with respect to such Lender at the direction or request of any regulatory
agency or authority.



     “Letter of Credit” shall mean each standby letter of credit issued pursuant to Section 3.1.



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     “Letter of Credit Exposure” shall mean, with respect to any Lender, the sum of (a) the amount
of any Unpaid Drawings on Letters of Credit in respect of which such Lender has made (or is
required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(a) and
(b) such Lender’s Revolving Credit Commitment Percentage of the Letter of Credit Outstanding
(excluding the portion thereof consisting of Unpaid Drawings in respect of which the Lenders have
made (or are required to have made) payments to the Letter of Credit Issuer pursuant to
Section 3.4(a)).



     “Letter of Credit Fee” shall have the meaning provided in Section 4.1(b).



     “Letter of Credit Issuer” shall mean JPMCB, any of its Affiliates or any successor thereto
pursuant to Section 3.6.



     “Letter of Credit Outstanding” shall mean, at any time, the sum, without duplication, of
(a) the aggregate Stated Amount of all outstanding Letters of Credit and (b) the aggregate amount
of all Unpaid Drawings in respect of all Letters of Credit.



     “Letter of Credit Request” shall have the meaning provided in Section 3.2.



     “LIBOR” shall mean, with respect to each LIBOR Period for each LIBOR Loan, a rate per annum,
expressed on the basis of a 360 day year, equal to the annual interest rate for deposits of Dollars
for a maturity most nearly comparable to such LIBOR Period which appears on Page 3750 of the
Telerate Service (or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent from time to time for purposes
of providing quotations of interest rates applicable to dollar deposits in the London interbank
market) as of 11:00 a.m. (London time) on the second Business Day prior to the commencement of such
LIBOR Period; provided that if such Service is not available on such day, then the interest rate at
which the Administrative Agent is offered deposits of Dollars by leading banks in the London
interbank market as of 11:00 a.m. (London time) on the second Business Day prior to the
commencement of such LIBOR Period, for delivery on the first day of such LIBOR Period for the
number of days comprised in such LIBOR Period and in an amount comparable to the amount of such
LIBOR Loan.



     “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).



     “Loans” shall mean Revolving Credit Loans and Swingline Loans.



9









 





     “Material Adverse Effect” shall mean, with respect to any Person, a circumstance or condition
affecting the business, assets, operations, properties or financial condition of such Person and
its Subsidiaries taken as a whole that would materially adversely affect the ability of such Person
to perform its obligations under this Agreement.



     “Minimum Borrowing Amount” shall mean $500,000.



     “Moody’s” shall mean Moody’s Investors Service, Inc. or any successor by merger or
consolidation to its business.



     “New Lender” shall have the meaning provided in Section 4.3.



     “New Lender Supplement” shall have the meaning provided in Section 4.3.



     “Non-U.S. Lender” shall mean any Lender that is not a “United States person”, as defined under
Section 7701(a)(30) of the Code.



     “Notice of Borrowing” shall mean a Notice of Borrowing provided pursuant to Section 2.3(a),
substantially in the form of Exhibit A.



     “Notice of Continuation” shall have the meaning provided in Section 2.6(a).



     “Organic Document” shall mean, relative to any Person, its certificate of incorporation,
by-laws, certificate of partnership, partnership agreement, certificate of formation, limited
liability agreement, operating agreement and all shareholder agreements, voting trusts and similar
arrangements applicable to any of such Person’s Capital Stock.



     “Participant” shall have the meaning provided in Section 12.6(a)(i).



     “Pension Plan” shall mean a “pension plan”, as such term is defined in Section 3(2) of ERISA,
which is subject to Title IV of ERISA (other than a multiemployer plan as defined in Section
4001(a)(3) of ERISA), and to which the relevant Person or any corporation, trade or business that
is, along with such Person, a member of a Controlled Group, is a contributing employer or a
sponsor.



     “Permitted Liens” shall mean, with respect to any Person, (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 such Person or any of its
Subsidiaries imposed by law, such as carriers’, warehousemen’s and or mechanics’ Liens, and other
similar Liens arising in the ordinary course of business and Liens arising under zoning laws and
ordinances and municipal bylaws and regulations, in each case so long as such Liens arise in the
ordinary course of business and do not individually or in the aggregate have a Material Adverse
Effect; (c) Liens arising from judgments or decrees in circumstances not constituting an Event of
Default under Section 10.6; (d) Liens (other than those arising by Requirement of Law that are not
permitted by clause (a) of this definition) incurred or deposits made in connection with workers’
compensation, unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations,



10









 







surety and appeal bonds, bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations incurred in the ordinary course of business; (e) ground leases
in respect of real property on which facilities owned or leased by such Person or any of its
Subsidiaries are located; (f) easements, rights-of-way, restrictive covenants or agreements, minor
defects or irregularities in title and other similar charges or encumbrances not interfering in any
material respect with the business of such Person and its Subsidiaries taken as a whole; (g) any
interest or title of a lessor or secured by a lessor’s interest under any lease permitted by this
Agreement; (h) Liens incurred by the licensing of trademarks by such Person or any of its
Subsidiaries to others in the ordinary course of business; and (i) leases or subleases granted to
others, not interfering in any material respect with the business of such Person 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.



     “Purchased Assets” shall have the meaning provided in the Asset Sale Agreement.



     “Real Estate” shall have the meaning provided in Section 8.1(e).



     “Register” shall have the meaning provided in Section 12.6(c).



     “Related Parties” means, with respect to any specified Person, such Person’s Affiliates and
the respective directors, officers, employees, agents and advisors of such Person and such Person’s
Affiliates.



     “Required Lenders” shall mean, at any date, Lenders having or holding more than 50% of the
Total Revolving Credit Commitment at such date (provided that in the case of a Defaulting Lender,
for this purpose only, its Revolving Credit Commitment shall be deemed to be equal to the
outstanding principal amount of all Revolving Credit Loans of such Defaulting Lender at such date)
or, if the Revolving Credit Commitments have terminated, more than 50% of the outstanding principal
amount of all Revolving Credit Loans, Letter of Credit Exposure and Swingline Exposure on such
date.



     “Requirement of Law” shall mean, as to any Person, the Certificate of Incorporation and
By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule,
regulation, guideline, policy or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its property or assets
or to which such Person or any of its property or assets is subject and whether or not having the
force of law.



     “Revolving Credit Commitment” shall mean, (a) with respect to each Lender that is a Lender on
the date hereof, the amount set forth on Schedule I as such Lender’s “Revolving Credit Commitment”,
(b) in the case of any Lender that becomes a Lender after the date hereof by assignment, the amount
specified as such Lender’s “Revolving Credit Commitment” in the Assignment and Acceptance
contemplated in Section 12.6 pursuant to which such Lender assumed a portion of the Total Revolving
Credit Commitment, and (c) in the case of any Lender that becomes a Lender after the date hereof
pursuant to Section 4.3, the amount specified as such Lender’s “Revolving Credit Commitment” in the
New Lender Supplement in Section 4.3



11









 







pursuant to which such Lender assumed a Revolving Credit Commitment, in each case as the same
may be changed from time to time pursuant to the terms hereof (including pursuant to Sections 2.14,
4.2 and 12.6).



     “Revolving Credit Commitment Percentage” shall mean, at any time, for each Lender, the
percentage obtained by dividing (a) such Lender’s Revolving Credit Commitment by (b) the Total
Revolving Credit Commitment; provided that at any time when the Total Revolving Credit Commitment
shall have been terminated, each Lender’s Revolving Credit Commitment Percentage shall be the
percentage obtained by dividing (c) such Lender’s Revolving Credit Exposure by (d) the aggregate
amount of the Revolving Credit Exposures of all the Lenders.



     “Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the sum of
(a) the aggregate principal amount of the Revolving Credit Loans of such Lender then outstanding
and (b) such Lender’s Letter of Credit Exposure at such time.



     “Revolving Credit Loan” shall have the meaning provided in Section 2.1(a).



     “Revolving Credit Maturity Date” shall mean January 29, 2013 (subject to extension (in the
case of each Lender consenting thereto) as provided in Section 2.14), or, if earlier, the date on
which the Revolving Credit Commitments shall have terminated or shall have been reduced to zero.



     “Sale and Leaseback Transaction” shall have the meaning provided in Section 9.5.



     “S&P” shall mean Standard & Poor’s Ratings Services or any successor by merger or
consolidation to its business.



     “Securities Act” shall mean the Securities Act of 1933, as amended.



     “Stated Amount” of any Letter of Credit shall mean the maximum amount from time to time
available to be drawn thereunder, determined without regard to whether any conditions to drawing
could then be met.



     “Subsidiary” of any Person shall mean and include (a) any corporation more than 50% of whose
stock of any class or classes having by the terms thereof ordinary voting power to elect a majority
of the directors of such corporation (irrespective of whether or not at the time stock or issued
share capital of any class or classes of such corporation shall have or might have voting power by
reason of the happening of any, contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (b) any partnership, association, joint venture or other entity
in which such Person directly or indirectly through Subsidiaries has more than a 50% equity
interest and more than a 50% voting interest at the time and (c) any other corporation,
partnership, joint venture or other entity (i) the accounts of which would be consolidated with
those of such Person in such Person’s consolidated financial statements if such statements were
prepared in accordance with GAAP and (ii) that is controlled (as defined in clause (b) of the
definition of such term in the definition of the term “Affiliate”) by such Person.



     “Successor Borrower” shall have the meaning provided in Section 9.2(a).



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     “Swingline Exposure” shall mean, at any time, the aggregate principal amount of all Swingline
Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be its
Revolving Credit Commitment Percentage of the total Swingline Exposure at such time.



     “Swingline Lender” shall mean JPMCB, in its capacity as lender of Swingline Loans hereunder,
or such other Lender as shall have been designated by the Borrower as the Swingline Lender pursuant
to a notice to the Administrative Agent (with the consent of such other Swingline Lender in its
sole discretion).



     “Swingline Loan” shall mean a Loan made pursuant to Section 2.15 hereof.



     “Target” shall mean Interstate Power and Light Company, an Iowa corporation.



     “Taxes” shall have the meaning provided in Section 5.3(a)(i).



     “Test Period” shall mean, for any Person, for any determination under this Agreement, the four
consecutive fiscal quarters of such Person then last ended.



     “Total Capitalization” shall mean, as of any date of determination, with respect to any
Person, the sum, without duplication, of (a) Total Debt of such Person and (b) the total
stockholder’s equity of such Person 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, with respect to any Person (a) the
sum, without duplication, of (i) all Indebtedness of such Person and its Subsidiaries for borrowed
money outstanding on such date, (ii) all Capitalized Lease Obligations of such Person and its
Subsidiaries outstanding on such date and (iii) all Indebtedness of such Person 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 such Person or any of
its Subsidiaries), all calculated on a consolidated basis in accordance with GAAP and to the extent
reflected as Indebtedness on the consolidated balance sheet of such Person in accordance with GAAP
minus (b) the aggregate amount of cash held by such Person and its Subsidiaries as at such date and
included in the cash accounts listed on the consolidated balance sheet of such Person and its
Subsidiaries and deposited with the Administrative Agent to the extent the use thereof for
application to payment of Indebtedness of such Person and its Subsidiaries is not prohibited by law
or any contract to which such Person 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 $50,000,000.



     “Transactions” shall mean the execution, delivery and performance by the Borrower of this
Agreement, the borrowing of the Loans and the use of the proceeds thereof and requesting the
issuance of Letters of Credit hereunder.



13









 





     “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.



     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




     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



14









 







each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of Revolving Credit Loans of the same Type), (iii) may be repaid
and reborrowed in accordance with the provisions hereof and shall be repaid in full on the
Revolving Credit Maturity Date, (iv) for any such Lender at any time, shall not result in such
Lender’s Revolving Credit Exposure at such time exceeding such Lender’s Revolving Credit Commitment
at such time, (v) after giving effect thereto and to the application of the proceeds thereof, shall
not result at any time in the aggregate amount of the Lenders’ Revolving Credit Exposures together
with the Swingline Exposure at such time exceeding the Total Revolving Credit Commitment then in
effect. As of the Closing Date, the Total Revolving Credit Commitment will be $50,000,000.



     (b) The Borrower shall use the proceeds from the Loans for general corporate purposes
(including to finance acquisitions); provided that, notwithstanding any of the foregoing, none of
the proceeds from Loans may be used to finance any Hostile Take-Over Bid.



     2.2 Minimum Amount of Each Borrowing; Maximum Number of Borrowings.



     The aggregate principal amount of each Borrowing of Revolving Credit Loans shall be in a
multiple of $100,000 and shall not be less than the Minimum Borrowing Amount. More than one
Borrowing may be incurred on any date; provided that at no time shall there be outstanding more
than 15 Borrowings of LIBOR Loans under this Agreement.



     2.3 Notice of Borrowing.



     (a) Whenever the Borrower desires to incur Revolving Credit Loans hereunder (other than
Borrowings to repay Unpaid Drawings), it shall give the Administrative Agent at an office of the
Administrative Agent from time to time notified by the Administrative Agent to the Borrower (but
initially the office set forth for the Administrative Agent in Section 12.2(a)(ii)), (i) a written
Notice of Borrowing (or telephonic notice promptly confirmed in writing) prior to 12:00 noon (New
York time) at least three Business Days prior to the proposed day of each Borrowing of LIBOR Loans
and (ii) a written Notice of Borrowing (or telephonic notice promptly confirmed in writing) prior
to 10:00 a.m. (New York time) on the proposed day of each Borrowing of ABR Loans. Each such Notice
of Borrowing, except as otherwise expressly provided in Section 2.10, shall be irrevocable and
shall specify (i) the aggregate principal amount of the Revolving Credit Loans to be made pursuant
to such Borrowing, (ii) the date of Borrowing (which shall be a Business Day), (iii) whether the
Borrowing shall consist of ABR Loans or LIBOR Loans, (iv) if such Borrowing shall consist of LIBOR
Loans, the LIBOR Period to be initially applicable thereto and (v) the number and location of the
account to which funds are to be disbursed. The Administrative Agent shall promptly give each
Lender written notice (or telephonic notice promptly confirmed in writing) of each proposed
Borrowing of Revolving Credit Loans, of such Lender’s proportionate share thereof and of the other
matters covered by the related Notice of Borrowing.



     (b) Without in any way limiting the obligation of 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



15









 







such case the applicable Borrower hereby waives the right to dispute the Administrative
Agent’s record of the terms of any such telephonic notice.



     (c) Borrowings to reimburse Unpaid Drawings shall be made upon the notice specified in Section
3.4(c).



     2.4 Disbursement of Funds.



     (a) No later than 12:00 Noon (New York time) on the date specified in each Notice of
Borrowing, each Lender will make available its pro rata portion, if any, of each Borrowing
requested to be made on such date in the manner provided below.



     (b) Each Lender shall make available all amounts it is to fund under any Borrowing in
immediately available funds to the Administrative Agent at an office of the Administrative Agent
from time to time notified by the Administrative Agent to the Lenders (but initially the office set
forth for the Administrative Agent in Section 12.2(a)(ii)), and the Administrative Agent will
(except in the case of Borrowings to repay Unpaid Drawings) make available to the Borrower by
depositing such funds as specified in the applicable Notice of Borrowing, the aggregate of the
amounts so made available. Unless the Administrative Agent shall have been notified by any Lender
prior to the date of any such Borrowing that such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, the
Administrative Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not in fact made available to the
Administrative Agent by such Lender and the Administrative Agent has made available same to the
Borrower, the Administrative Agent shall be entitled to recover such corresponding amount from such
Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative
Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower, and the
Borrower shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from such Lender or 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).



16









 





     2.5 Repayment of Loans; Evidence of Debt.



     (a) The Borrower shall, for the benefit of the Lenders, on the Revolving Credit Maturity Date,
(i) repay to the Administrative Agent the then-unpaid Revolving Credit Loans, and (ii) retire all
other then-outstanding Revolving Credit Exposure, other than Letters of Credit that expire
following the Revolving Credit Maturity Date for which the Borrower provides or has provided cash
collateral in an amount equal to the Stated Amount of such Letter of Credit. The Borrower hereby
promises to pay to the Swingline Lender or, the to the extent required by Section 2.15(c), to the
Administrative Agent for the account of the Lenders, the then unpaid principal amount of each
Swingline Loan on the earlier of the Revolving Credit Maturity Date and the date that is 10
Business Days after such Swingline Loan is made; provided that on each date that a
Revolving Credit Loan is made, the Borrower shall repay all Swingline Loans then outstanding.



     (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 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 Loan made hereunder, the Type of each 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 (c) and (d) of this Section shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations of the Borrower therein recorded;
provided that the failure of any Lender or the Administrative Agent to maintain such account, such
Register or such subaccount, as applicable, or any error therein, shall not in any manner affect
the obligation of the Borrower to repay (with applicable interest) the Revolving Credit Loans made
to it by such Lender in accordance with the terms of this Agreement. In the event that there is an
inconsistency between the accounts maintained by a Lender pursuant to 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.



17









 





     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 it of one Type into a Borrowing or Borrowings of another permitted Type or to
continue the outstanding principal amount of any LIBOR Loans as LIBOR Loans for an additional LIBOR
Period; provided that (i) no partial continuation of LIBOR Loans shall reduce the outstanding
principal amount of LIBOR Loans made pursuant to a single Borrowing to less than the Minimum
Borrowing Amount, (ii) ABR Loans may not be converted into LIBOR Loans, if a Default or Event of
Default is in existence on the date of the proposed conversion and the Administrative Agent has or
the Required Lenders have determined in its or their sole discretion not to permit such conversion,
(iii) LIBOR Loans may not be continued as LIBOR Loans for an additional LIBOR Period if a Default
or Event of Default is in existence on the date of the proposed continuation and the Administrative
Agent has or the Required Lenders have determined in its or their sole discretion not to permit
such continuation, (iv) no LIBOR Period in excess of one month may be selected for any LIBOR Loan
if a Default or Event of Default is in existence on the date of the proposed continuation and the
Administrative Agent has or the Required Lenders have determined in its or their sole discretion
not to permit such longer LIBOR Period, (v) Borrowings resulting from continuations or conversions
pursuant to this Section 2.6 shall be limited in number as provided in Section 2.2 and (vi) the
outstanding principal amount of a Revolving Credit Loan of one Type may not be converted into a
Borrowing of another permitted Type until the end of the current LIBOR Period for such Revolving
Credit Loan. Each such continuation or conversion shall be effected by the Borrower by giving the
Administrative Agent at the location set forth in Section 12.2 prior to 12:00 Noon (New York time)
at least three Business Days’ prior written notice substantially in the form of Exhibit B (or
telephonic notice promptly confirmed in writing) (each a “Notice of Continuation”) specifying the
Revolving Credit Loans to be so continued or converted, the Type of Revolving Credit Loans to be
continued or converted into and, if such Revolving Credit Loans are to be converted or continued as
LIBOR Loans, the LIBOR Period to be initially applicable thereto. The Administrative Agent shall
give each Lender notice as promptly as practicable of any such proposed continuation or conversion
affecting any of its Revolving Credit Loans. This Section shall not be construed to permit the
Borrower to change the currency of any Borrowing.



     (b) If any Default or Event of Default is in existence at the time of any proposed
continuation of any LIBOR Loans and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such continuation, such LIBOR Loans shall
be automatically converted on the last day of the current LIBOR Period into ABR Loans.



     (c) If upon the expiration of any LIBOR Period, 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.



18









 





     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 (excluding any Swingline 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) The unpaid principal amount of each Swingline Loan shall bear interest as provided for in
Section 2.15(d).



     (d) For each day (a) on or prior to the Revolving Credit Maturity Date on which the Revolving
Credit Exposure and the Swingline Exposure exceeds 50% of the Revolving Credit Commitments or (b)
after the Revolving Credit Maturity Date on which the Revolving Credit Exposure and the Swingline
Exposure exceeds 50% of the Revolving Credit Commitments as in effect immediately prior to the
termination or reduction to zero of the Revolving Credit Commitments, the Borrower shall pay to the
Administrative Agent for the account of each Lender additional interest on the Loans (including the
Swingline Loans) made by such Lender that are outstanding on such day at a rate per annum equal to
the Applicable Additional Interest Rate. Accrued additional interest will be payable in respect of
each outstanding Loan on each date on which interest is payable on such outstanding Loan, at the
times specified in Section 2.8(f) hereof.



     (e) If all or a portion of (i) the principal amount of any 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 Loan, equal to the rate of
interest applicable to such Loan plus, to the extent permitted by applicable law, 2.00%, or (z) in
the case



19









 







of any overdue fees or other amounts owing hereunder, equal to the rate of interest then
applicable to 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(e) shall be
payable upon demand.



     (f) Interest on each Loan shall accrue from and including the date such Loan is made to but
excluding the date of any repayment thereof and shall, except as otherwise provided pursuant to
Section 2.8(e), be payable (i) in respect of each ABR Loan and Cost of Funds Rate Loan, quarterly
in arrears on the last Business Day of each of March, June, September and December, (ii) in respect
of each LIBOR Loan, on the last day of each LIBOR Period applicable thereto and, in the case of a
LIBOR Period in excess of three months, on each date occurring at three-month intervals after the
first day of such LIBOR Period, (iii) in respect of each 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.



     (g) All computations of interest hereunder shall be made in accordance with Section 4.4.



     (h) 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 one, two, three or six months. Notwithstanding anything to the contrary contained above:




     (a) the initial LIBOR Period for any Borrowing of LIBOR Loans shall commence on the
date of such Borrowing (including the date of any conversion from a Borrowing of ABR Loans)
and each LIBOR Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding LIBOR Period expires;




     (b) if any LIBOR Period relating to a Borrowing of LIBOR Loans begins on the last
Business Day of a calendar month or begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such LIBOR Period, such LIBOR Period
shall end on the last Business Day of the calendar month at the end of such LIBOR Period;



20









 






     (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 LIBOR Loans (other than any
such increase or reduction attributable to taxes) because of (x) any change since the date
hereof in any applicable law, governmental rule, regulation, guideline or order (or in the
interpretation or administration thereof and including the introduction of any new law or
governmental rule, regulation, guideline or order), such as, for example, but not limited
to, a change in official reserve requirements (including any reserve requirements specified
under regulations issued from time to time by the F.R.S. Board and then applicable to assets
or liabilities consisting of and including “Eurocurrency Liabilities” as therein defined),
and/or (y) other circumstances affecting the London interbank market; or




     (iii) at any time, that the making or continuance of any LIBOR Loan has become unlawful
by compliance by such Lender in good faith with any law, governmental rule, regulation,
guideline or order (or would conflict with any such governmental rule, regulation, guideline
or order not having the force of law even though the failure to comply therewith would not
be unlawful), or has become impracticable as a result of a contingency occurring after the
date hereof that materially and adversely affects the London interbank market;


then, and in any such event, such Lender shall within a reasonable time thereafter give notice (if
by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such


21









 






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 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,



22









 







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.



     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.



     Each Lender agrees that, upon the occurrence of any event giving rise to the operation of
Section 2.10(a)(ii), 2.10(a)(iii), 2.10(b) or 5.3 with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such
Lender) to designate another lending office for any Revolving Credit Loans affected by such event;
provided that such designation is made on such terms that such Lender and its lending office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section. Nothing in this Section 2.12 shall affect
or postpone any of the obligations of the Borrower or the right of any Lender provided in
Section 2.10 or 5.3.



     2.13 Notice of Certain Costs.



     Notwithstanding anything in this Agreement to the contrary, to the extent any notice required
by Section 2.10, 2.11, 3.5 or 5.3 is given by any Lender more than 180 days after such Lender has
knowledge (or should have had knowledge) of the occurrence of the event giving rise to the
additional cost, reduction in amounts, loss, tax or other additional amounts described in such
Sections, such Lender shall not be entitled to compensation under Section 2.10, 2.11, 3.5 or



23









 




5.3, as the case may be, for any such amounts incurred or accruing prior to the giving of such
notice.




     2.14 Extension of Commitment Termination Date.



     (a) Requests for Extension. The Borrower may, by notice to the Administrative Agent (who
shall promptly notify the Lenders) not earlier than 60 days and not later than 35 days prior to any
anniversary of the Closing Date, commencing with the first anniversary thereof (any such
anniversary date, as applicable, the “Extension Date”), request that each Lender extend the
Revolving Credit Maturity Date then in effect hereunder (the “Existing Revolving Credit Maturity
Date”) for an additional year from the Existing Revolving Credit Maturity Date; provided
that the Borrower shall not make more than two such requests hereunder.



     (b) Lender Elections to Extend. Each Lender, acting in its sole and individual discretion,
shall, by notice to the Administrative Agent given not earlier than 30 days prior to the Extension
Date and not later than the date (the “Notice Date”) that is 20 days prior to the Extension Date,
advise the Administrative Agent whether or not such Lender agrees to such extension (and each
Lender that determines not to so extend its Revolving Credit Maturity Date (a “Non-Extending
Lender”) shall notify the Administrative Agent of such fact promptly after such determination (but
in any event no later than the Notice Date)) and any Lender that does not so advise the
Administrative Agent on or before the Notice Date shall be deemed to be a Non-Extending Lender.
The election of any Lender to agree to such extension shall not obligate any other Lender to so
agree. The Revolving Credit Commitments of a Non-Extending Lender shall terminate on the Existing
Revolving Credit Maturity Date, and on such date (i) the loans made by such Non-Extending Lender
shall mature and be due and payable by the Borrower, and (ii) all other amounts owing to such
Non-Extending Lender hereunder (including, without limitation, such Non-Extending Lender’s
participations in Swingline Loans pursuant to Section 2.15(c)) shall be due and payable.



     (c) Notification by Administrative Agent. The Administrative Agent shall notify the Borrower
of each Lender’s determination under this Section no later than the date 15 days prior to the
Extension Date (or, if such date is not a Business Day, on the next preceding Business Day).



     (d) Additional Commitment Lenders. The Borrower shall have the right on or before the
Existing Revolving Credit Maturity Date to replace each Non-Extending Lender with, and add as
“Lenders” under this Agreement in place thereof, one or more Persons (each, an “Additional
Commitment Lender”; each Additional Commitment Lender, together with any Lender that extends its
Commitment, being collectively called the “Continuing Lenders”) with the approval of the
Administrative Agent, the Swingline Lender and the Letter of Credit Issuer (which approvals shall
not be unreasonably withheld), each of which Additional Commitment Lenders shall have entered into
an agreement in form and substance satisfactory to the Borrower and the Administrative Agent
pursuant to which such Additional Commitment Lender shall undertake a Revolving Credit Commitment
(and, if any such Additional Commitment Lender is already a Lender, its Revolving Credit Commitment
shall be in addition to such Lender’s Revolving Credit Commitment hereunder on such date).



24









 





     (e) Minimum Extension Requirement. If (and only if) the total of the Revolving Credit
Commitments of the Lenders (including any Additional Commitment Lenders) that have agreed so to
extend the Revolving Credit Maturity Date shall be more than 50% of the aggregate amount of the
Revolving Credit Commitments in effect on the Notice Date, then, effective as of the Extension
Date, the Revolving Credit Maturity Date of each Continuing Lender shall be extended to the date
falling one year after the Existing Revolving Credit Maturity Date (except that, if such date is
not a Business Day, such Revolving Credit Maturity Date as so extended shall be the next preceding
Business Day) and each Additional Commitment Lender shall thereupon become (and each Non-Extending
Lender that has been replaced as provided above shall cease to be) a “Lender” for all purposes of
this Agreement.



     (f) Conditions to Effectiveness of Extensions. Notwithstanding the foregoing, the extension
of the Revolving Credit Maturity Date pursuant to this Section shall not be effective with respect
to any Lender unless the Administrative Agent shall have received a certificate of an Authorized
Officer of the Borrower certifying that:




     (i) no Default or Event of Default shall have occurred and be continuing on the date of
such extension and after giving effect thereto; and




     (ii) the representations and warranties contained in this Agreement are true and
correct on and as of the date of such extension and after giving effect thereto, as though
made on and as of such date (or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific date).



     2.15 Swingline Loans.



     (a) Agreement to Make Swingline Loans. Subject to the terms and conditions set forth herein,
the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the
period from and including the Closing Date to but not including the Revolving Credit Maturity Date
in an aggregate principal amount at any one time outstanding not to exceed $10,000,000;
provided that (i) the aggregate principal amount of all Swingline Loans together with the
aggregate principal amount of all Revolving Credit Loans and the aggregate amount of Letter of
Credit Exposures, at any one time outstanding shall not exceed the aggregate amount of the
Revolving Credit Commitments at such time and (ii) the Swingline Lender shall not be required to
make a Swingline Loan to refinance an outstanding Swingline Loan. The aggregate principal amount
of each Swingline Loan shall be in a multiple of $100,000 and shall not be less than the Minimum
Borrowing Amount. Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Swingline Loans.



     (b) Notice of Swingline Loans by the Borrower. To request a Swingline Loan, the Borrower
shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon New York time on the day of a proposed Swingline Loan. Each such notice
shall be irrevocable and shall specify the requested date (which shall be a Business Day) and
amount of the requested Swingline Loan. The Administrative Agent will promptly advise the
Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make
each Swingline Loan available to the Borrower by means of a credit to the general deposit account
of the Borrower with the Swingline Lender by 3:00 p.m.



25









 




New York time on the requested date of such Swingline Loan. To prepay a Swingline Loan, the
Borrower shall notify the Swingline Lender of such prepayment not later than 12:00 noon New York
time on the date of such prepayment.




     (c) Participations by Lenders in Swingline Loans. The Swingline Lender may by written notice
given to the Administrative Agent not later than 10:00 a.m. New York time on any Business Day
require the Lenders to acquire participations on such Business Day in all or a portion of the
Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in
which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Lender, specifying in such notice such Lender’s Revolving Credit
Commitment Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above in this paragraph, to pay to the
Administrative Agent, for account of the Swingline Lender, such Lender’s Revolving Credit
Commitment Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that
its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute
and unconditional and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or reduction or termination of the Revolving Credit
Commitments, and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in Section 2.4 with respect
to Revolving Credit Loans made by such Lender (and Section 2.4 shall apply, mutatis mutandis, to
the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the
Swingline Lender the amounts so received by it from the Lenders.



     The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan
acquired pursuant to the preceding paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in
respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent; and any such amounts
received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the
Lenders that shall have made their payments pursuant to the preceding paragraph and to the
Swingline Lender, as their interests may appear. The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment
thereof. No modification, supplement or waiver to this Agreement that shall modify or otherwise
affect the rights or duties of the Swingline Lender shall be permitted without the prior written
consent of the Swingline Lender.



     (d) Interest Rate for Swingline Loans. A Swingline Loan shall be an ABR Loan or a Cost of
Funds Rate Loan if the Borrower and the Swingline Lender have expressly agreed to such Cost of
Funds Rate Loan (such agreement to be obtained by telephone, confirmed promptly to the
Administrative Agent in writing) pursuant to the following procedures. If the Borrower desires a
Cost of Funds Rate Loan, (i) the Borrower shall request a quote for a Cost of Funds Rate Loan, and
the Swingline Lender shall within a reasonable time after receipt of the request directly contact
the Borrower (which may be done by telephone) with its Cost of Funds Rate (confirmed by telecopy),
(ii) the Borrower shall immediately inform the Swingline Lender of its



26









 







decision as to whether to request a Cost of Funds Rate Loan at the Cost of Funds Rate (which
may be done by telephone and promptly confirmed in writing and which decision shall be
irrevocable), and (iii) if the Borrower has so informed the Swingline Lender that it does desire a
Cost of Funds Rate Loan at the Cost of Funds Rate, the Swingline Lender shall promptly make such
Cost of Funds Rate Loan available to the Borrower. At all times such Loan is a Cost of Funds Rate
Loan, the Borrower shall pay interest on the unpaid principal amount of such Cost of Funds Rate
Loan from the date of such Cost of Funds Rate Loan until such principal amount shall be paid in
full at a rate per annum equal to the Cost of Funds Rate in effect from time to time plus the
Applicable Margin for LIBOR Loans in effect from time to time.



ARTICLE 3

LETTERS OF CREDIT.




     3.1 Generally.



     (a) Subject to and upon the terms and conditions herein set forth, the Borrower, at any time
and from time to time on or after the Closing Date and prior to the L/C Maturity Date, may request
that the Letter of Credit Issuer issue, for the account of the Borrower, a standby letter of credit
or letters of credit (in such form as may be approved by the Letter of Credit Issuer in its
reasonable discretion) which is participated by the Letter of Credit Issuer pursuant to Section 3.3
(each such letter of credit, a “Letter of Credit”).



     (b) Notwithstanding the foregoing, (w)  no Letter of Credit shall be issued the Stated Amount
of which, when added to the sum of (A) the Letter of Credit Exposure of all of the Lenders at such
time and (B) the aggregate principal of all Revolving Credit Loans and Swingline Loans then
outstanding would exceed the Total Revolving Credit Commitment then in effect; (x) each Letter of
Credit shall have an expiry date occurring no later than one year after the date of issuance
thereof; provided that in no event shall such expiry date occur later than the L/C Maturity
Date; (y) each Letter of Credit shall be denominated in Dollars and shall provide for drawings
thereunder to be made in Dollars; and (z) no Letter of Credit shall be issued by the Letter of
Credit Issuer 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 (A) rescission of such notice from the party or
parties originally delivering such notice (provided that in the case of any such notice delivered
by the Borrower, the Administrative Agent has not objected to or contested such rescission) or
(B) the waiver of such Default or Event of Default in accordance with the provisions of
Section 12.1.



     3.2 Letter of Credit Requests and Information to Administrative Agent.



     (a) Whenever 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 G (each a “Letter of Credit Request”). The Administrative Agent shall promptly transmit
copies of each Letter of Credit Request to each Lender.




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     (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



28









 







Agent for the account of the Letter of Credit Issuer the L/C Participant’s Revolving Credit
Commitment Percentage of the amount of the payment on the Business Day in same day funds. If and
to the extent the L/C Participant shall not have so made its Revolving Credit Commitment Percentage
of the amount of the payment available to the Administrative Agent for the account of the Letter of
Credit Issuer, the L/C Participant agrees to pay to the Administrative Agent for the account of the
Letter of Credit Issuer, forthwith on demand, the amount, together with interest thereon for each
day from the date until the date the amount is paid to the Administrative Agent for the account of
the Letter of Credit Issuer at the Federal Funds Effective Rate. The failure of any L/C
Participant to make available to the Administrative Agent for the account of a Letter of Credit
Issuer the L/C Participant’s Revolving Credit Commitment Percentage of any payment under any Letter
of Credit shall not relieve any other L/C Participant of its obligation hereunder to make available
to the Administrative Agent for the account of the Letter of Credit Issuer the other L/C
Participant’s Revolving Credit Commitment Percentage of any payment under the Letter of Credit on
the date required, as specified above, but no L/C Participant shall be responsible for the failure
of any other L/C Participant to make available to the Administrative Agent the other L/C
Participant’s Revolving Credit Commitment Percentage of the payment. Notwithstanding the
foregoing, the Administrative Agent shall be entitled to adjust the proportions of any of the
foregoing amounts required to be paid by the L/C Participants to ensure that no L/C Participant’s
Revolving Credit Exposure exceeds its Revolving Credit Commitment.



     (d) Whenever the Letter of Credit Issuer receives a payment in respect of an unpaid
reimbursement obligation as to which the Administrative Agent has received for the account of the
Letter of Credit Issuer any payments from the L/C Participants pursuant to paragraph (c) above, the
Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each L/C Participant that has paid its applicable portion of such reimbursement
obligation, in Dollars and in same day funds, an amount equal to such L/C Participant’s share
(based upon the proportionate aggregate amount originally funded by such 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);



29









 






     (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 such Letter of Credit (each such
amount so paid until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the
date of, such payment, with interest on the amount so paid or disbursed by the Letter of Credit
Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on the date of such payment
or disbursement, 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 7.2, in the



30









 







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



31









 







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.



     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




     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 balances of the unused amount of the
Total Revolving Commitments. 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 Commitments. For the purposes of this paragraph (a),
Swingline Loans shall not be deemed a utilization of the Total Revolving Commitments.



32









 





     (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 and on the date upon which the Total Revolving
Credit Commitment terminates and the Letters of Credit Outstanding shall have been reduced to zero.
In addition, for each day (a) on or prior to the Revolving Credit Maturity Date on which the
Revolving Credit Exposure and the Swingline Exposure exceeds 50% of the Revolving Credit
Commitments hereunder or (b) after the Revolving Credit Maturity Date on which the Revolving Credit
Exposure and the Swingline Exposure exceeds 50% of the Revolving Credit Commitments as in effect
immediately prior to the termination or reduction to zero of the Revolving Credit Commitments, the
Borrower shall pay to the Administrative Agent for the account of each Lender an additional fee on
the Stated Amount of each Letter of Credit outstanding on such day at a rate per annum equal to the
Applicable Additional Interest Rate. Accrued additional fees will be payable in respect of the
Stated Amount of each Letter of Credit outstanding on each date on which the Letter of Credit Fee
is payable at the times specified in the preceding sentence of this clause (b).



     (c) 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”) at the request of the Borrower, for the
period from and including the date of issuance of such Letter of Credit to but not including the
termination date of such Letter of Credit, computed during such period at a per annum rate equal to
0.125% on the average daily Stated Amount of such Letter of Credit. Such Fronting Fees shall be
due and payable quarterly in arrears on the last Business Day of each of March, June, September and
December and on the date upon which the Total Revolving Credit Commitment terminates and the
Letters of Credit Outstanding shall have been reduced to zero.



     (d) 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 Arranger, for the benefit of the
Lenders, the fees in the amounts previously agreed to in writing by the Borrower and the Arranger
and referred to in the term sheet for the financing contemplated hereby.



33









 





     4.2 Voluntary Reduction of Revolving Credit Commitments.



     Upon at least two Business Days’ prior written notice (or telephonic notice promptly confirmed
in writing) to the Administrative Agent (which notice the Administrative Agent shall promptly
transmit to each of the Lenders), the Borrower shall have the right, without premium or penalty, on
any day, to permanently terminate or reduce the Revolving Credit Commitments in whole or in part;
provided that (i) any such reduction shall apply proportionately and permanently to reduce the
Revolving Credit Commitments 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, and (iii) after giving effect to any
such partial reduction, the Total Revolving Credit Commitment shall not be an amount less than the
Revolving Credit Exposure plus the Swingline Exposure.



     4.3 Commitment Increases.



     (a) In the event that the Borrower wishes to increase the Total Revolving Credit Commitment,
it shall notify the Administrative Agent in writing of the amount (the “Offered Increase Amount”)
of such proposed increase (such notice, a “Commitment Increase Notice”).



     (b) The Borrower may, at its election, (i) offer one or more of the Lenders the opportunity to
participate in all or a portion of the Offered Increase Amount pursuant to paragraph (d) below
and/or (ii) with the consent of the Administrative Agent (which consent shall not be unreasonably
withheld), offer one or more additional banks, financial institutions or other entities the
opportunity to participate in all or a portion of the Offered Increase Amount pursuant to paragraph
(c) below. Each Commitment Increase Notice shall specify which Lenders and/or banks, financial
institutions or other entities the Borrower desires to participate in such Commitment Increase.
The Borrower or, if requested by the Borrower, the Administrative Agent, will notify such Lenders
and/or banks, financial institutions or other entities of such offer.



     (c) Any additional bank, financial institution or other entity which the Borrower selects to
offer participation in the increased Commitments and which elects to become a party to the
Agreement and provide a Commitment in an amount so offered and accepted by it pursuant to Section
4.3(a)(ii) shall execute a New Lender Supplement (each a “New Lender Supplement”) with the Borrower
and the Administrative Agent, substantially in the form of Exhibit D, whereupon such bank,
financial institution or other entity (herein called a “New Lender”) shall become a Lender for all
purposes and to the same extent as if originally a party hereto and shall be bound by and entitled
to the benefits of this Agreement, and Schedule I shall be deemed to be amended to add the name and
Commitment of such New Lender.



     (d) Any Lender which accepts an offer to it by the Borrower to increase its Commitment
pursuant to Section 4.3(b)(i) shall, in each case, execute a Commitment Increase Supplement (each a
“Commitment Increase Supplement”) with the Borrower and the Administrative Agent, substantially in
the form of Exhibit E, whereupon such Lender shall be bound by and entitled to the benefits of this
Agreement with respect to the full amount of its Commitment as so increased, and Schedule I shall
be deemed to be amended to increase the Commitment of such Lender.



34









 





     (e) If on the date upon which a bank, financial institution or other entity becomes a New
Lender pursuant to Section 4.3(c) or a Lender increases its Commitment pursuant to Section 4.3(d),
there is an unpaid principal amount of Revolving Credit Loans, the Borrower shall borrow Revolving
Credit Loans from the Lenders and/or (subject to compliance by the Borrower with Section 2.11)
prepay Revolving Credit Loans of the Lenders such that, after giving effect thereto, the Revolving
Credit Loans (including, without limitation, the Types thereof and LIBOR Periods with respect
thereto) shall be held by the Lenders (including for such purposes the New Lenders) pro rata
according to their respective Revolving Credit Commitment Percentages.



     (f) If on the date upon which a bank, financial institution or other entity becomes a New
Lender pursuant to Section 4.3(c) or a Lender increases its Commitment pursuant to Section 4.3(d),
there are Letters of Credit Outstanding, each Lender that has a Revolving Credit Commitment shall
be deemed to have sold and transferred to each other Lender that has a Revolving Credit Commitment,
and each such Lender that has a Revolving Credit Commitment shall be deemed irrevocably and
unconditionally to have purchased and received from such other Lender that has a Revolving Credit
Commitment, without recourse or warranty, an L/C Participation, to the extent of such Lender’s
Revolving Credit Commitment Percentage, in such Letters of Credit Outstanding, provided that no LC
Participations shall be sold, transferred, purchased and received in respect of any Unpaid Drawing
existing at the time an entity becomes a New Lender pursuant to Section 4.3(c) or a Lender
increases its Commitment pursuant to Section 4.3(d).



     (g) Notwithstanding anything to the contrary in this Section 4.3, prior to each New Lender
Supplement and Commitment Increase Supplement becoming effective, and as a condition precedent to
such effectiveness, the Borrower shall furnish to the Administrative Agent such evidence of legal
and corporate authority (including legal opinions of counsel to the Borrower) as the Administrative
Agent may request in connection with such New Lender Supplement or Commitment Increase Supplement,
as the case may be. Notwithstanding anything to the contrary in this Section 4.3, in no event
shall any transaction effected pursuant to this subsection cause the Total Revolving Credit
Commitment to exceed $75,000,000 or to increase in an amount of less than $500,000 or a multiple of
$100,000 in excess thereof.



     (h) Notwithstanding the foregoing, the increase of the Revolving Credit Commitments with
respect to the Borrower pursuant to this Section shall not be effective unless the Administrative
Agent shall have received a certificate of an Authorized Officer of the Borrower certifying that:




     (i) no Default or Event of Default shall have occurred and be continuing on the date of
such increase and after giving effect thereto; and




     (ii) the representations and warranties made by the Borrower under this Agreement are
true and correct on and as of the date of such increase and after giving effect thereto, as
though made on and as of such date (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific date).



35









 





     4.4 Mandatory Termination of Commitments.



     The Total Revolving Credit Commitment shall terminate at 5:00 p.m. (New York time) on the
Revolving Credit Maturity Date.



ARTICLE 5

PAYMENTS




     5.1 Prepayments.



     The Borrower shall have the right to prepay any Borrowing or Swingline Loans, without premium
or penalty, in whole or in part at any time and from time to time. Such prepayment of Revolving
Credit Loans and Swingline 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) (i) with respect to Revolving Credit Loans, 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 and (ii) with respect to Swingline Loans, in accordance with Section
2.15 hereof; (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 kind, to the
Administrative Agent for, as the case may be, (i) the ratable account of all the Lenders holding
Revolving Credit Loans, (ii) subject to Section 2.15(c), the account of the Swingline Lender with
respect to Swingline Loans or (iii) 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



36









 







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) (i) 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 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



37









 







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 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 the
Swingline 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 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 or Swingline 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 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



38









 







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.



     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



39









 







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(d).



     (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(d).



ARTICLE 6

CONDITIONS PRECEDENT




     6.1 Conditions Precedent to Initial Credit Event.



     The initial Credit Event under this Agreement is subject to the satisfaction of the following
conditions precedent:




     (a) Credit Agreement. The Administrative Agent shall have received this Agreement,
executed and delivered by a duly authorized officer of each of the parties hereto.




     (b) Closing Certificate. The Administrative Agent shall have received a certificate of
each of the Borrower, dated the Closing Date, substantially in the form of Exhibit C, with
appropriate insertions, executed by the President or any Vice President and the Secretary or
any Assistant Secretary of the Borrower.




     (c) Proceedings of the Borrower. The Administrative Agent shall have received copies
of the resolutions, in form and substance satisfactory to the Administrative Agent, of the
Board of Directors of 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 true and complete
copies of the articles of incorporation and by-laws or Articles of Organization and
operating agreement, as the case may be, of the Borrower and a certificate of good standing
with respect to the Borrower issued by its jurisdiction of incorporation or organization.




     (e) Fees. The Administrative Agent shall have received the fees referred to in
Section 4.1(e) and (f) to be received on the Closing Date.




     (f) Legal Opinions. The Administrative Agent shall have received in form and substance
reasonably satisfactory to it the executed legal opinions of (i) counsel to



40









 







the Borrower
with respect to the status and capacity of the Borrower, the due authorization, execution
and delivery of this Agreement by the Borrower, the validity, binding effect, legality and
enforceability of this Agreement, compliance with the Organic Documents of the Borrower and
with applicable law and such other matters as the Arranger may reasonably request in form
and substance satisfactory to the Arranger, and (ii) special Michigan counsel to the
Borrower with respect to the status and capacity of the Borrower, the due authorization,
execution and delivery of this Agreement by the Borrower, the validity, binding effect,
legality and enforceability of this Agreement, compliance with the Organic Documents of the
Borrower and with applicable law and such other matters as the Arranger may reasonably
request in form and substance satisfactory to the Arranger.




     (g) Opinion of Special New York Counsel to the Arranger. The Administrative Agent
shall have received an opinion, in form and substance reasonable satisfactory to the
Arranger of Milbank, Tweed, Hadley & McCloy LLP, special New York counsel to the Arranger
(and the Arranger hereby instructs such counsel to deliver such opinion to the Lenders).




     (h) Consummation of Acquisition. The Acquisition shall have been consummated
substantially in accordance with the Asset Sale Agreement, subject to such amendments
thereto or waivers thereof as are not adverse to the interests of the Lenders in any
material respect or which have been reasonably agreed to by the Arranger.




     (i) Certificate of Officer. The Administrative Agent shall have received a
certificate of the Chief Financial Officer of the Borrower confirming that the Indebtedness
of the Borrower, after giving effect to the Acquisition and Indebtedness incurred in
connection with the Acquisition, will not exceed, in the aggregate, $250,000,000.




     (i) Governmental Approvals. The Administrative Agent shall have received evidence that
all governmental approvals necessary in connection with the transactions contemplated hereby
(including, without limitation, approvals from the United States Federal Energy Regulatory
Commission and approval of the 204 financing application) shall have been obtained and are
in full force and effect.




     (j) Pro forma financial statements. The Administrative Agent shall have received
satisfactory pro forma financial statements as to the Borrower after giving effect to the
Acquisition and Indebtedness incurred in connection with the Acquisition.



     6.2 Conditions Precedent to All Credit Events.



     The agreement of each Lender to make any Loan (including such Lender’s Revolving Credit Loan
and any Swingline Loan) requested to be made by it on any date (including its initial Revolving
Credit Loans and Swingline 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:



41









 






     (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
making of each Swingline Loan, the Administrative Agent shall have received notice meeting
the requirements of Section 2.15(b). 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).



     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




     In order to induce the Lenders to enter into this Agreement and to make the 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 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



42









 







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.



     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 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 factual information and data (taken as a whole) heretofore or contemporaneously
furnished (other than any projections and pro forma financial information), by or on behalf
of 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



43









 







misleading at such time in light of the circumstances under
which such statements were made.




     (b) The projections and pro forma financial information contained in the information
and data referred to in paragraph (a) above were prepared in good faith based upon
assumptions believed by such Persons to be reasonable at the time made, it being recognized
by the Lenders that such projections as to future events are not to be viewed as facts and
that actual results during the period or periods covered by any such projections may differ
from the projected results.



     7.7 Financial Condition; Financial Statements.



     The Borrower has heretofore furnished to the Lenders the financial statements with respect to
the Target referred to in the letter dated May 30, 2007 from the United States Securities and
Exchange Commission, Division of Corporation Finance, to Holdco. Such financial statements present
fairly in all material respects the consolidated financial position of the Target at the respective
dates of said statements and the results of operations for the respective periods covered thereby.
All such financial statements have been prepared in accordance with GAAP consistently applied
except to the extent provided in the notes to said financial statements. All balance sheets, all
statements of income and of cash flow and all other financial information of each of 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 then ended.



     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



44









 






     (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
(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 302(f) of
ERISA, (c) no condition exists or event or transaction has occurred with respect to any Pension
Plan which might result in the incurrence by the Borrower or any member of the Controlled Group of
any liability, 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 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, 2006.



     7.15 Deemed Repetition of Representations and Warranties.



     The representations and warranties set out in Sections 7.1 to 7.13 inclusive (and solely in
the case of the initial Credit Event, Section 7.14) will be deemed to be repeated by the Borrower
as of the date of each request for a new Credit Event, by the Borrower (including conversions and
continuations of Borrowings) and as of the date on which a Successor Borrower assumes all



45









 







of the
obligations of the Borrower under the Credit Documents pursuant to Section 9.2(a) (but after giving
effect to such assumption), except to the extent that on or prior to such date (a) 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.



ARTICLE 8

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 Commitment 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, setting forth comparative consolidated figures for the preceding
fiscal year, and certified by independent chartered accountants of recognized national
standing whose opinion shall not be qualified as to the scope of audit or as to the status
of the Borrower or any of its Subsidiaries as a going concern, together in any event with a
certificate of such accounting firm stating that in the course of its regular audit of the
business of the Borrower and its Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, such accounting firm has obtained no knowledge of any
Default or Event of Default relating to Section 9.4 that has occurred and is continuing or,
if in the opinion of such accounting firm such a Default or Event of Default has occurred
and is continuing, a statement as to the nature thereof.




     (b) Quarterly Financial Statements. As soon as available and in any event on or before
the date that is 45 days after the end of each of the first three fiscal quarters in each
fiscal year of 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
for such fiscal quarter and for the elapsed portion of the fiscal year ended with the last
day of such fiscal quarter, and, setting forth comparative consolidated figures for the
related periods in the prior fiscal year or, in the case of such consolidated balance sheet,
for the last day of the prior fiscal year, and prepared in accordance with GAAP, all of
which shall be certified by an Authorized Officer of the Borrower, subject to changes
resulting from audit and normal year-end audit adjustments.



46









 






     (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 F (a “Compliance Certificate”) to 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, together with a certificate of the Chief Financial
Officer of the Borrower (in detail reasonably satisfactory to the Administrative Agent)
setting forth the calculations required to establish whether the Borrower and its
Subsidiaries are in pro forma compliance with Section 9.4 of this Agreement.




     (e) Environmental Matters. Promptly after an Authorized Officer of 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



47









 







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
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) 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



48









 







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.



     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 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 the Borrower and its
Subsidiaries may consummate any transaction permitted under Section 9.2.



     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 or such Subsidiary as it would obtain in a comparable arm’s-length transaction with a
Person that



49









 







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.



     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 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
following the consummation of the Transactions and other business activities incidental or related
to any of the foregoing (the “Business”).



ARTICLE 9

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 Commitment 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;



50









 






     (b) Liens securing indebtedness incurred within 180 days of the acquisition,
construction or improvement of fixed or capital assets to finance the acquisition,
construction or improvement of such fixed or capital assets; provided that the principal
amount of such Indebtedness is not increased above the principal amount thereof outstanding
immediately prior to such refinancing, refunding, renewal or extension;




     (c) Liens existing on the Closing Date and as set out on Schedule IV;




     (d) Liens existing on the assets of any Person that becomes a Subsidiary, or existing
on assets acquired; provided that such Liens attach at all times only to the same assets
that such Liens attached to and secure only the same Indebtedness that such Liens secured,
immediately prior to such acquisition;




     (e) (i) Liens placed upon the Capital Stock or assets of any Subsidiary acquired to
secure Indebtedness of the Borrower or any Subsidiary incurred in connection with such
acquisition and (ii) Liens placed upon the assets of such Subsidiary acquired pursuant to an
acquisition to secure a guarantee by such Subsidiary of any such Indebtedness of the
Borrower or any Subsidiary;




     (f) the replacement, extension or renewal of any Lien permitted by clauses (a) through
(f) above upon or in the same assets theretofore subject to such Lien or the replacement,
extension or renewal (without increase in the amount or change in any direct or contingent
obligor except to the extent otherwise permitted hereunder) of the Indebtedness secured
thereby;




     (g) additional Liens so long as the aggregate outstanding principal amount of the
obligations so secured (including the imputed principal amount of any Capitalized Lease
Obligations) for the Borrower and its Subsidiaries does not exceed $20,000,000 in the
aggregate; and




     (h) Liens on assets of the Borrower to secure Indebtedness of the Borrower under the
First Mortgage Indenture.



     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)
the Borrower shall be the continuing or surviving entity or, so long as after giving effect
to such merger or consolidation such Person’s debt rating shall be in “Category 6” or
higher, as determined pursuant to the definition of “Applicable Margin”, the Person formed
by or surviving any such merger or consolidation (if other than the Borrower) shall be an
entity organized or existing under the laws of the United States or any State thereof, (the
Borrower or Person, as the case may be, being herein referred to as



51









 







the “Successor
Borrower”), (ii) such 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, (iii) 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, (iv) the Borrower shall be in compliance, on a pro forma basis
after giving effect to such merger or consolidation, with the covenants set forth in Section
9.4 as such covenants are recomputed as at the last day of the most recently ended Test
Period under each such Section as if such merger or consolidation had occurred on the first
day of such Test Period, and (v) 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 (iv) above and stating
that such merger or consolidation and such supplement to this Agreement comply with this
Agreement and a legal opinion (in form and substance reasonably satisfactory to the
Administrative Agent) with respect to this Agreement to be delivered, if any, pursuant to
clause (ii) above; provided further that if the foregoing are satisfied, such Successor
Borrower (if other than 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).



     9.4 Debt to Capitalization Ratio.



     The Borrower will not permit its Debt to Capitalization Ratio to be greater than 65% at any
time on or after the Closing Date.



     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




     Each of the following specified events or occurrences described in Sections 10.1 through 10.8
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 Loans or
(b) default, and such default shall continue for five or more days, in the payment when due of any
interest on the Loans or any Fees or any Unpaid Drawings of any other amounts owing hereunder.



     10.2 Representations, etc.



     Any representation, warranty or statement made or deemed made by the Borrower herein or any
certificate delivered or required to be delivered pursuant hereto or thereto shall prove to be
untrue in any material respect on the date as of which made or deemed made (it being understood
that, for purposes of the foregoing, the truth of the representations and warranties set forth in
Section 7.6 shall be determined without reference to the knowledge of the Borrower).



     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 8.11 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 (a)(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



53









 







which such Indebtedness was created or (ii) default
in the observance or performance of any agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating thereto beyond the period
of grace, if any, provided in the instrument or agreement under which such Indebtedness was
created, or any other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause, any such Indebtedness to become due
prior to its stated maturity; or



     (b) without limiting the provisions of clause (a) above, any such Indebtedness shall be
declared to be due and payable, or required to be prepaid other than by a regularly scheduled
required prepayment or as a mandatory prepayment, prior to the stated maturity thereof.



     10.5 Bankruptcy, etc.



     The Borrower or any of its Subsidiaries, 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 of its Subsidiaries, 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 of its Subsidiaries, 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 of its Subsidiaries, or the Borrower or any of its Subsidiaries,
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 of its Subsidiaries; or there is commenced
against the Borrower or any of its Subsidiaries, any such proceeding that remains undismissed for a
period of 45 days; or the Borrower or any of its Subsidiaries, 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 of its Subsidiaries, 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 of its Subsidiaries, for the
purpose of effecting any of the foregoing; or the Borrower or any of its Subsidiaries, 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 of its Subsidiaries, 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 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
not have been satisfied, vacated, discharged or stayed or bonded pending appeal within 60 days from
the entry thereof.




54











 





     10.7 Change of Ownership.



     A Change of Ownership shall occur.



     10.8 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 of its Subsidiaries or any other Person to terminate a Pension
Plan if, as a result of such termination, the Borrower or any such member could be required to make
a contribution to such Pension Plan, or could reasonably expect to incur a liability or obligation
to such Pension Plan in respect of such termination; or (b) a contribution failure occurs with
respect to any Pension Plan sufficient to give rise to a Lien under section 302(f) of ERISA, where
in each case under clauses (a) or (b) such contribution, liability, obligation or Lien would
reasonably be expected to have a Material Adverse Effect.



     10.9 Remedies.



     Upon the occurrence of any Event of Default described above, and in any such event, and at any
time thereafter, if any Event of Default shall then be continuing, the Administrative Agent shall,
upon the written request of the Required Lenders, by written notice to the Borrower, 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 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 and then
outstanding; and/or (iv) exercise any other remedies that may be available under this Agreement or
applicable law.



     10.10 Remedies Cumulative.



     The rights and remedies of the Administrative Agent and the Lenders under this Agreement are
cumulative and are in addition to and not in substitution for any rights or remedies provided by
law or by equity, and any single or partial exercise by the Lenders of any



55









 







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




          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 wilful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall
not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents of any certificate,



56









 






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
Swingline Lender, 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.




57









 








          Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder.




          Notwithstanding anything herein to the contrary the Sole Bookrunner, the Sole Lead Arranger
and the Co-Syndication Agents named on the cover page of this Agreement shall not have any duties
or liabilities under this Agreement, except in its capacity, if any, as a Lender.




ARTICLE 12

MISCELLANEOUS




     12.1 Amendments and Waivers.



     Neither this Agreement, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 12.1. The Required Lenders may
from time to time (a) enter into with the 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 8.1), in each case
without the written consent of each Lender, or (iii) amend, modify or waive any provision of
Section 2.15 without the written consent of the Swingline Lender, (iv) amend, modify or waive any
provision of Article 11 without the written consent of the then-current Administrative Agent, or
(v) amend, modify or waive any provision of Section 3.2 or Section 12.6(a)(ii) (to the extent it
relates to the Letter of Credit Issuer) without the written consent of the Letter of Credit Issuer,
or (vi) amend Section 6.2(a) to the extent that it relates to payments for the ratable account of
Lenders without the written consent of each Lender directly and adversely affected thereby, in each
case without



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the written consent of all the Lenders except as otherwise specifically provided in this
Section 12.1 and provided further that at any time that no Default or Event of Default has occurred
and is continuing, the Revolving Credit Commitment of any Lender may be increased for any purpose
permitted hereunder, with the consent of such Lender, the 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) 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 or
New Lender Supplement of any Lender which is an Assignee) or to such other address as may be
hereafter notified by the respective parties hereto:




	 	(i)	 	The Borrower:
	 
	 	 	 	ITC Midwest LLC

39500 Orchard Hill Place,

Suite 200

Novi, MI 48375

Attention: Edward Rahill

Facsimile No.: (248) 374-7129
	 
	 	(ii)	 	The Administrative Agent:
	 
	 	 	 	JPMorgan Chase Bank, N.A.

Loan Operations

10 South Dearborn, 7th Floor

Chicago, IL 60603

Attention: Nanette Wilson

Facsimile No.: (312) 385-7096




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	 	 	 	with copy to (except in the case of notices relating to borrowings,
continuations, conversions and letters of credit):
	 
	 	 	 	JPMorgan Chase Bank, N.A.

10 South Dearborn, 9th Floor

Mail Code IL1-0090

Chicago, IL 60603

Attention: Nancy R. Barwig

                 Vice President, Mid-Corporate Power Credit

Facsimile No.: (312) 732-1762
	 
	 	 	 	and
	 
	 	 	 	JPMorgan Chase Bank, N.A.

Portfolio Management Administration

10 South Dearborn, 9th Floor

Mail Code IL1-0090

Chicago, IL 60603

Attention: Mary McCorry

Facsimile 312-325-3238






	 	(iii)	 	The Swingline Lender:
	 
	 	 	 	JPMorgan Chase Bank, N.A.

Loan Operations

10 South Dearborn, 7th Floor

Chicago, IL 60603

Attention: Nanette Wilson

Facsimile No.: (312) 385-7096




provided that any notice, request or demand to or upon the Administrative Agent, the Lenders or the
Swingline Lender pursuant to Sections 2.3, 2.6, 2.10, 2.15, 4.2 and 5.1 shall not be effective
until received.




     (b) Electronic Communications. The Borrower agrees that the Administrative Agent may make
communications available to the Lenders and the Swingline Lender 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



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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, 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 Loans hereunder.



     12.5 Payment of Expenses and Taxes.



     The Borrower agrees (a) to pay or reimburse the Arranger and the Administrative Agent for all
their reasonable and documented out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or modification to, this
Agreement and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and thereby (including the
syndication of the Revolving Credit Commitments), including the reasonable fees, disbursements and
other charges of one counsel to the Administrative Agent, (b) to pay or reimburse each Lender, the
Swingline 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 the Swingline Lender
and of counsel to the Administrative Agent, (c) to pay, indemnify, defend and hold harmless each
Lender, the Swingline Lender and the Administrative Agent from, any and all recording and filing
fees and any and all liabilities with respect to, or



61









 







resulting from any delay in paying, stamp,
excise and other similar taxes, if any, that may be
payable or determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of, this Agreement and
any such other documents, and (d) to pay, indemnify, defend and hold harmless each Lender, the
Arranger, the Swingline Lender and the Administrative Agent and their respective directors,
officers, employees, trustee, agents and Affiliates (collectively, the “Indemnitees”) from and
against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever (including reasonable and
documented fees, disbursements and other charges of counsel incurred in connection with any
investigative, administrative or judicial proceeding commenced or threatened by any Person, whether
or not any such Indemnitee shall be designated as a party or potential party thereto, and any fees
or expenses incurred by any Indemnitee in enforcing this indemnity), whether direct, indirect or
consequential, whether based on strict liability or negligence, and whether based on any federal,
provincial or foreign laws, statutes, rules, regulations or guidelines (including Environmental
Laws), common law, equity, contract or otherwise that may be imposed on, incurred by or asserted
against any Indemnitee, in any manner arising out of or relating to (i) this Agreement and any
other agreements or documents contemplated hereby or thereby, the other transactions contemplated
hereby (including the execution, delivery, enforcement, performance and administration of this
Agreement and the breach by the Borrower of, or default by the Borrower under, any of the
provisions of this Agreement, (ii) the violation of, non-compliance with or liability under, any
Environmental Law applicable to the operations of the Borrower or any of its Subsidiaries or
applicable to any of the Real Estate, or (iii) any Environmental Claim or any Hazardous Materials
relating to or arising from, directly or indirectly, any past or present activity, operation, land
ownership, possession or control, or practice of, the Borrower or any of its Subsidiaries from time
to time (all the foregoing in this clause (d), 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 wilful 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 to the
extent relating to disputes among the Lenders, the Swingline Lender, any of the Arranger and/or the
Administrative Agent. The agreements in this Section 12.5 shall survive repayment of the Loans and
all other amounts payable hereunder.



     Each of the Lenders, the Swingline Lender, the Arranger and the Administrative Agent agree
that any and all of their respective rights under this Agreement and any other agreements
contemplated hereby and thereby, including recourse for any obligation or claim for any
indemnification thereunder, is limited to recourse to 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.



     12.6 Successors and Assigns; Participations and Assignments.



          (a) Assignments Generally. The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and




62









 







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 the
Swingline 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. Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of the Letter of Credit
Issuer that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of
this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Letter of Credit Issuer, the Lenders and the Swingline Lender) any legal
or equitable right, remedy or claim under or by reason of this Agreement.




          (b) Assignments by Lenders.




          (i) Assignments Generally. Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Revolving Credit Commitment and
the Loans at the time owing to it) with the prior written consent (such consent not to be
unreasonably withheld) of:





     (A) the Borrower, 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;




     (C) the Letter of Credit Issuer; and




     (D) the Swingline Lender.



          (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, Swingline Exposure or Swingline Loans, the amount of the
Revolving Credit Commitment, Revolving Credit Loans, Swingline Exposure or Swingline 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;



63









 






     (B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement;




     (C) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation fee of
$3,500; and




     (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.



          (iii) Effectiveness of Assignments. Subject to acceptance and recording thereof
pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each
Assignment and Acceptance the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.10, 2.11, 3.5 and 12.5). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this Section
shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c) of this Section.




          (iv) Maintenance of Register. The Administrative Agent, acting for this purpose as an
agent of 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, Swingline Exposure 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 Swingline Lender, 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, the
Swingline Lender and any Lender, at any reasonable time and from time to time upon reasonable prior
notice.




          (v) Acceptance of Assignments by Administrative Agent. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an assignee, the assignee’s
completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder),
the processing and recordation fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Acceptance and record the information contained therein in the
Register; provided that if either the assigning Lender or the assignee shall have failed to
make any payment required to be made by it pursuant to Section 2.4(b), 3.3 or 3.4, the
Administrative Agent shall have no obligation to accept such Assignment and




64









 




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.




          (c) Participations.




          (i) Participations Generally. Any Lender may, without the consent of the Borrower,
the Administrative Agent, the Swingline Lender 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, Swingline Exposure 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, the Swingline Lender
and the other Lenders shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the third sentence of Section 12.1 that affects such
Participant. Subject to paragraph (c)(ii) of this Section, 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 shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.




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     12.7 Replacements of Lenders under Certain Circumstances.



     (a) The Borrower shall be permitted to replace any Lender that (a) requests reimbursement for
amounts owing pursuant to Section 2.10 or 5.3, (b) is affected in the manner described in Section
2.10(a)(iii) and as a result thereof any of the actions described in such
Section is required to be taken or (c) becomes a Defaulting Lender, with a replacement bank or
other financial institution; provided that (i) such replacement does not conflict with any
Requirement of Law, (ii) no Event of Default shall have occurred and be continuing at the time of
such replacement, (iii) the replacement bank or institution shall purchase, at par, all Revolving
Credit Loans and other amounts (other than any disputed amount) pursuant to Section 2.10, 2.11,
2.15(c) or 5.3, as the case may be, owing to such replaced Lender prior to the date of replacement
or as a result of such replacement, (iv) the replacement bank or institution, if not already a
Lender, and the terms and conditions of such replacement, shall be reasonably satisfactory to the
Administrative Agent, (v) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 12.6 (provided that the Borrower shall be obligated to
pay the registration and processing fee referred to therein) and (vi) any such replacement shall
not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other
Lender shall have against the replaced Lender.



     (b) In the event that S&P or Moody’s 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.



     (a) Upon termination of the Total Revolving Credit Commitment and each Lender’s Revolving
Credit Commitment, the Administrative Agent shall calculate each Lender’s Revolving Credit
Commitment Percentage based on such Lender’s Revolving Credit Exposure at such time. If any
Lender’s Revolving Credit Commitment Percentage calculated on such basis is greater than the ratio
of such Lender’s Revolving Credit Commitment to the Total Revolving Credit Commitment (such Lender,
a “Selling Lender”), then each of the other Lenders Revolving Credit Commitment Percentage
calculated on the basis of Revolving Credit Exposure is less than such other Lender’s Revolving
Credit Commitment Percentage calculated on the basis of its Revolving Credit Commitment (each such
other Lender, a “Purchasing Lender”) shall purchase for cash from the Selling Lender, without
recourse or representation or warranty (other than as to ownership and no Liens or claims by any
Person), an interest in the Revolving



66









 







Credit Exposure of the Selling Lender at par in such amount
as would result in a pro rata participation (based on Revolving Credit Commitments) by each Lender,
in the aggregate Revolving Credit Exposure of all the Lenders. The Administrative Agent, upon
consultation with the applicable Lenders, shall have the power to settle any documentation required
to evidence any such purchase and, if deemed advisable by the Administrative Agent, to execute
any document as attorney for any Lender in order to complete any such purchase. The Borrower
acknowledges that the foregoing arrangements are to be settled by the Lenders among themselves, and
the Borrower expressly consents to the foregoing arrangements among the Lenders. The
Administrative Agent shall recalculate each Lender’s Revolving Credit Commitment Percentage from
time to time after termination of the Total Revolving Credit Commitment and each Lender’s Revolving
Credit Commitment on the basis hereinbefore provided and the Lenders shall adjust their respective
Revolving Credit Commitment Percentages from time to time in accordance with this Section 12.8(a)
as may be required.



     (b) After the occurrence and during the continuance of an Event of Default, 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 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



67









 







participation. If under any applicable
bankruptcy, insolvency or other similar law any Finance Party receives a secured claim in lieu of a
setoff to which this Section applies, such Finance Party shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the rights of the Lenders
entitled under this Section to share in the benefits of any recovery on such secured claim.



     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.



68









 





     12.13 Governing Law.



     THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK AND THE LAWS OF
THE UNITED STATES APPLICABLE THEREIN (EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE WHICH MIGHT
REFER SUCH CONSTRUCTION TO THE LAWS OF ANOTHER JURISDICTION).



     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 non-exclusive general jurisdiction of the courts of the State of New York;




     (b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;




     (c) agrees that service of process in any such action or proceeding may be effected in
accordance with the local rules of civil procedure or by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail), postage prepaid,
to 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 sue 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



69









 






     (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.



     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, each Lender and the Swingline 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 the
Swingline Lender or 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 or Swingline Lender’s investment portfolio in connection with
ratings issued with respect to such Lender or Swingline Lender or pursuant to legal process or to
such Lender’s, Swingline 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, the Swingline 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 or Swingline Lender by such Governmental Authority or in connection with ratings by
such rating agency with respect to such Lender or Swingline 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, the Swingline 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,
the Swingline 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 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 Loans.



     (a) The Borrower does not intend to treat the 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.



70









 





     (b) The Borrower acknowledges that the Administrative Agent, the Swingline Lender and one or
more of the Lenders may treat its 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, the Swingline
Lender 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.



     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.



[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 MIDWEST LLC.,

as the Borrower



By: ITC HOLDINGS CORP.,

as Sole Member

 	 
	 	By:  	/s/ Edward M. Rahill
 	 
	 	 	Name:  	Edward M. Rahill 	 
	 	 	Title:  	Senior Vice President – Finance and

     Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as the Administrative Agent and Lender

 	 
	 	By:  	/s/ Nancy R. Barwig
 	 
	 	 	Name:  	Nancy R. Barwig 	 
	 	 	Title:  	Vice President 	 
	 



[Signature page to Credit Agreement]




 









 








	 	 	 	 	 
	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as Lender

 	 
	 	By:  	/s/ Vanessa Gomez
 	 
	 	 	Name:  	Vanessa Gomez 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	/s/ Morenikeji Ajayi
 	 
	 	 	Name:  	Morenikeji Ajayi 	 
	 	 	Title:  	Associate 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	LEHMAN BROTHERS BANK, FSB,

AS LENDER

 	 
	 	BY:  	/s/ Janine M. Shugan
 	 
	 	NAME: Janine M. Shugan 	 
	 	TITLE: Authorized Signatory 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	COMERICA BANK,

as Lender

 	 
	 	By:  	/s/ Blake Arnett
 	 
	 	 	Name:  	Blake Arnett 	 
	 	 	Title:  	Vice President 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Lender

 	 
	 	By:  	/s/ Patrick N. Martin
 	 
	 	 	Name:  	Patrick N. Martin 	 
	 	 	Title:  	Vice President 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	MORGAN STANLEY BANK,

as Lender

 	 
	 	By:  	/s/ Daniel Twenge
 	 
	 	 	Name:  	Daniel Twenge 	 
	 	 	Title:  	Authorized Signatory 	 
	 



[Signature page to Credit Agreement]





 









 





SCHEDULE I

COMMITMENTS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	REVOLVING	 	REVOLVING CREDIT
	 	 	 	 	CREDIT	 	COMMITMENT
	LENDER	 	ADDRESS FOR NOTICES	 	COMMITMENT	 	PERCENTAGE
	JPMorgan Chase Bank, N.A.

	 	JPMorgan Chase Bank, N.A.
	 	$	11,000,000	 	 	 	22	%
	 

	 	Loan Operations	 	 	 	 	 	 	 	 
	 

	 	10 South Dearborn, 7th Floor	 	 	 	 	 	 	 	 
	 

	 	Chicago, IL 60603	 	 	 	 	 	 	 	 
	 

	 	Attention: Nanette Wilson	 	 	 	 	 	 	 	 
	 

	 	Facsimile No.: (312) 385-7096	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	with copy to (except in the case of notices	 	 	 	 	 	 	 	 
	 

	 	relating to borrowings, continuations,	 	 	 	 	 	 	 	 
	 

	 	conversions and letters of credit):	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	JPMorgan Chase Bank, N.A.	 	 	 	 	 	 	 	 
	 

	 	10 South Dearborn, 9th Floor	 	 	 	 	 	 	 	 
	 

	 	Mail Code IL1-0090	 	 	 	 	 	 	 	 
	 

	 	Chicago, IL 60603	 	 	 	 	 	 	 	 
	 

	 	Attention: Nancy R. Barwig	 	 	 	 	 	 	 	 
	 

	 	               Vice President, Mid-Corporate Power Credit	 	 	 	 	 	 	 	 
	 

	 	Facsimile No.: (312) 732-1762	 	 	 	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	REVOLVING	 	REVOLVING CREDIT
	 	 	 	 	CREDIT	 	COMMITMENT
	LENDER	 	ADDRESS FOR NOTICES	 	COMMITMENT	 	PERCENTAGE
	 

	 	and	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	JPMorgan Chase Bank, N.A.	 	 	 	 	 	 	 	 
	 

	 	Portfolio Management Administration	 	 	 	 	 	 	 	 
	 

	 	10 South Dearborn, 9th Floor	 	 	 	 	 	 	 	 
	 

	 	Mail Code IL1-0090	 	 	 	 	 	 	 	 
	 

	 	Chicago, IL 60603	 	 	 	 	 	 	 	 
	 

	 	Attention: Mary McCorry	 	 	 	 	 	 	 	 
	 

	 	Facsimile 312-325-3238	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Credit Suisse, Cayman

	 	Credit Suisse, Cayman Islands Branch
	 	$	9,000,000	 	 	 	18	%
	Islands Branch

	 	Eleven Madison Avenue	 	 	 	 	 	 	 	 
	 

	 	New York NY 10010	 	 	 	 	 	 	 	 
	 

	 	Attention: Loan Closers	 	 	 	 	 	 	 	 
	 

	 	Facsimile No.: (212) 538-9120	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Lehman Brothers Bank, FSB

	 	Lehman Brothers
	 	$	9,000,000	 	 	 	18	%
	 

	 	Deal Closing & Servicing Department	 	 	 	 	 	 	 	 
	 

	 	745 7th Avenue, 16th Floor,	 	 	 	 	 	 	 	 
	 

	 	New York NY 10019	 	 	 	 	 	 	 	 
	 

	 	Attention: Theresa Siu	 	 	 	 	 	 	 	 
	 

	 	Facsimile No.: (212) 220-9606	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Comerica Bank

	 	Comerica
	 	$	7,000,000	 	 	 	14	%
	 

	 	500 Woodward Avenue, 9th Floor,	 	 	 	 	 	 	 	 
	 

	 	Detroit MI 48226	 	 	 	 	 	 	 	 
	 

	 	Attention: Stacie McVeigh	 	 	 	 	 	 	 	 
	 

	 	Facsimile No.: (313) 222-951	 	 	 	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	REVOLVING	 	REVOLVING CREDIT
	 	 	 	 	CREDIT	 	COMMITMENT
	LENDER	 	ADDRESS FOR NOTICES	 	COMMITMENT	 	PERCENTAGE
	Bank of America, N.A.

	 	Bank of America, N.A.
	 	$	7,000,000	 	 	 	14	%
	 

	 	901 Main Street	 	 	 	 	 	 	 	 
	

	 	Dallas TX 75202-3714	 	 	 	 	 	 	 	 
	 

	 	Attention: Jacqueline Archuleta	 	 	 	 	 	 	 	 
	 

	 	Facsimile No.: (214) 290-8372	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Morgan Stanley Bank

	 	Morgan Stanley Bank
	 	$	7,000,000	 	 	 	14	%
	 

	 	2500 Lake Blvd, Suite 300 C	 	 	 	 	 	 	 	 
	 

	 	West Valley City, Utah 84120	 	 	 	 	 	 	 	 
	 

	 	Attention: Lisa Malone/Kelly	 	 	 	 	 	 	 	 
	 

	 	Aliperti	 	 	 	 	 	 	 	 
	 

	 	Facsimile No.: (718) 233-2132	 	 	 	 	 	 	 	 
	 
	 

	 	     Total amount
	 	$	50,000,000.00	 	 	 	100	%







 











 





SCHEDULE II

ENVIRONMENTAL MATTERS




[NONE]




 









 





SCHEDULE III

PENSION AND WELFARE MATTERS




[NONE]




 









 





SCHEDULE IV

OUTSTANDING LIENS ON CLOSING DATE




[NONE]




 









 





EXHIBIT A




Form of Notice of Borrowing




NOTICE OF BORROWING




	 	 	 
	TO:

	 	JPMorgan Chase Bank, N.A.
	 

	 	Loan Operations
	 

	 	10 South Dearborn, 7th Floor
	 

	 	Chicago, IL 60603
	 

	 	Attention: Nanette Wilson
	 

	 	Facsimile No.: 312/385-7096






     Pursuant to the Revolving Credit Agreement, dated as of January 29, 2008 (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 Midwest LLC, a Michigan limited liability company (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 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 MIDWEST LLC

 	 
	 	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
	 

	 	10 South Dearborn, 7th Floor
	 

	 	Chicago, IL 60603
	 

	 	Attention: Nanette Wilson
	 

	 	Facsimile No.: 312/385-7096






          Pursuant to the Revolving Credit Agreement, dated as of January 29, 2008 (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 Midwest LLC, a Michigan limited liability company (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)





          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); 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 MIDWEST LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 











 





EXHIBIT C




Form
of Closing Certificate

CLOSING
CERTIFICATE

ITC MIDWEST LLC





	TO:	 	The Lenders and the Administrative Agent (each, as defined below)
	 
	RE: 	 	Revolving Credit Agreement, dated as of January 29, 2008 (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 Midwest LLC, a Michigan limited liability company
(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.





     The undersigned, an Authorized Officer of ITC Holdings Corp., the Sole Member of the Borrower
(the “Sole Member”), 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 articles of
organization 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;
	 
	3.	 	attached to this certificate as Schedule B is a correct and complete copy of the operating
agreement of the Borrower and such operating agreement is in full force and effect at the date
hereof and the Sole Member of the Borrower has not passed, confirmed or consented to any
amendments or variations to such operating agreement;
	 
	4.	 	attached to this certificate as Schedule C is a correct and complete copy of a resolution of
the board of directors of the Borrower, dated [ ], 2007, which resolution is in
full force and effect, unamended, at the date hereof;
	 
	5.	 	the following persons are duly elected or appointed officers of the Sole Member of the
Borrower and a specimen signature of each such person is as set out opposite his name below:




 









 











	 	 	 	 	 
	Joseph Welch
	 	 	 	 
	President, Chief Executive
	 	 	 	 
	Officer and Treasurer

	 	 

	 	 
	 
	 	 	 	 
	Daniel J. Oginsky
	 	 	 	 
	Vice President and
	 	 	 	 
	General Counsel
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Edward M. Rahill
	 	 	 	 
	Senior Vice President – Finance and
	 	 	 	 
	Chief Financial Officer
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Dated:
	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Joseph Welch	 	 
	 

	 	President, Chief Executive Officer and
Treasurer	 	 






     IN
WITNESS WHEREOF, I have signed this Certificate this ___ day of January, 2008.



	 	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






     I,                     ,                      of the Sole Member of the Borrower, DO HEREBY CERTIFY that
                     has been duly elected (or appointed) and has duly qualified as, and on this day is,
the                      of the Sole Member of the Borrower, and the signature above is his genuine
signature.



	 	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 







 











 





EXHIBIT D




Form of New Lender Supplement




          Reference is made to the REVOLVING CREDIT AGREEMENT, dated as of January 29, 2008, among ITC
MIDWEST LLC, a Michigan limited liability company (the “Borrower”), various financial institutions
and other Persons from time to time parties referred to as lenders (the “Lenders”) and JPMORGAN
CHASE BANK, N.A. (“JPMCB”), as administrative agent (in such capacity, the “Administrative Agent”)
(the “Credit Agreement”). Capitalized terms used and not defined herein have the respective
meanings assigned thereto in the Credit Agreement.




          Upon execution and delivery of this New Lender Supplement by the parties hereto as provided in
Section 4.3 of the Credit Agreement and subject to the conditions precedent set forth in said
section, the undersigned hereby becomes a Lender thereunder having the Revolving Credit Commitments
set forth opposite its signature below, effective as of the date hereof.




          This New Lender Supplement shall be construed in accordance with and governed by the law of
the State of New York. This New Lender Supplement may be executed by one or more of the parties
hereto on any number of separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. Delivery of an executed signature page hereof by
facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.




          All notices, requests and demands to or upon the respective parties hereto to be effective
shall be in writing to such address listed below or as may be hereafter notified by the respective
parties hereto:




     (a) The Borrower:


ITC MIDWEST LLC

39500 Orchard Hill Place,

Suite 200

Novi, MI 48375



Attention: Edward Rahill

Facsimile No.: (248) 374 7129




     (b) The Administrative Agent:


JPMorgan Chase Bank, N.A.

Loan Operations

10 South Dearborn, 7th Floor

Chicago, IL 60603

Attention: Nanette Wilson

Facsimile No.: (312) 385-7096




 









 







with copy to:



JPMorgan Chase Bank, N.A.

10 South Dearborn, 9th Floor

Mail Code IL1-0090

Chicago, IL 60603

Attention: Nancy R. Barwig



Vice President, Mid-Corporate Power Credit



Facsimile No.: (312) 732-1762



and



JPMorgan Chase Bank, N.A.

Portfolio Management Administration

10 South Dearborn, 9th Floor

Mail Code IL1-0090

Chicago, IL 60603

Attention: Mary McCorry

Facsimile 312-325-3238




[signature page follows]




 









 




IN WITNESS WHEREOF, the parties hereto have caused this New Lender Supplement to be duly executed
and delivered by their proper and duly authorized officers as of this                      day of                                         , 200                    .




	 	 	 	 	 	 	 	 	 	 	 
	Revolving Credit Commitments:	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Name of Lender	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Accepted and agreed:	 	 	 	 	 	 	 	 
	ITC MIDWEST LLC	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A.

as Administrative Agent	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 	 	 






 









 






EXHIBIT E




Form of Commitment Increase Supplement




     SUPPLEMENT, dated                                         , to Revolving Credit Agreement, dated as of January 29,
2008 (as the same may be amended, modified, supplemented, restated or replaced from time to time,
the “Credit Agreement”; the terms defined therein and not otherwise defined herein being used
herein as therein defined), among ITC Midwest LLC, a Michigan limited liability corporation (the
“Borrower”), various financial institutions and other Persons from time to time parties referred to
as lenders (the “Lenders”), and JPMorgan Chase Bank, N.A., as the Administrative Agent.



W I T N E S S E T H :




     WHEREAS, the Credit Agreement provides in Section 4.3(d) thereof that any Lender with (when
applicable) the consent of the Borrower may increase the amount of its Commitment by executing and
delivering to the Borrower and the Administrative Agent a supplement to the Credit Agreement in
substantially the form of this Supplement; and



     WHEREAS, the undersigned now desires to increase the amount of its Commitment under the Credit
Agreement;



     NOW THEREFORE, the undersigned hereby agrees as follows:



   1. The undersigned agrees, subject to the terms and conditions of the Credit Agreement,
that on the effective date of this Supplement, it shall have its Commitment increased by
$                                        , thereby making the amount of its Commitment $                                        .



   2. Terms defined in the Credit Agreement shall have their defined meanings when used
herein.



 









 





     IN WITNESS WHEREOF, the undersigned has caused this Supplement to be executed and delivered by
a duly authorized officer on the date first above written.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	[NAME OF LENDER]	 	 
	 
	 

	 	 	 	 	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 	 	Title:	 	 
	     Accepted this                      day of	 	 	 	 	 	 	 	 
	                                             ,                     .	 	 	 	 	 	 	 	 
	ITC MIDWEST LLC	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	     Accepted this                      day of	 	 	 	 	 	 	 	 
	                                             ,                    .	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A., as	 	 	 	 	 	 	 	 
	Administrative Agent	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 	 	 	 	 






 









 






EXHIBIT F




Form of Compliance Certificate




TO: The Lenders and the Administrative Agent



The undersigned, an Authorized Officer of ITC Midwest LLC (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 Credit Agreement, dated as of January 29, 2008 (as the same may be amended, modified,
supplemented, restated or replaced from time to time, the “Credit Agreement”), among ITC
Midwest LLC, a Michigan limited liability company (the “Borrower”), various financial
institutions and other Persons from time to time parties referred to as lenders (the
“Lenders”), 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(d) of the Credit
Agreement. Unless the context otherwise requires, capitalized terms in the Credit Agreement
which appear herein without definitions shall have the meanings ascribed thereto in the Credit
Agreement.
	 
	2.	 	I am familiar with and have examined the provisions of the 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 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 ratios referred
to in Section 9.4 of the Credit Agreement is                     % and was calculated as set forth in
Schedule I.





Dated this day of                                        ,                                         .



	 	 
	 
	 
	[Name and Title]
	 






 









 






Schedule I




ITC Midwest, LLC

Debt to Capitalization Ratio




	 	 	 	 	 
	1. Total Debt for the relevant Test Period.
	 	$	 	 
	 
	 	 	 	 
	2. Total Capitalization for such Test Period.
	 	 	 	 
	(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
	 	 	 	%
	 
	 	 	 	 






 











 





EXHIBIT G




Form of Letter of Credit Request




	 	 	 
	TO:

	 	JPMorgan Chase Bank, N.A.
	 

	 	Loan Operations
	 

	 	10 South Dearborn, 7th Floor
	 

	 	Chicago, IL 60603
	 

	 	Attention: Nanette Wilson
	 

	 	Facsimile No.: 312/385-7096






     Pursuant to the Revolving Credit Agreement, dated as of January 29, 2008 (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 Midwest LLC, a Michigan limited liability corporation (the “Borrower”), various
financial institutions and other Persons from time to time parties referred to as lenders (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 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 MIDWEST LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: