exv10w89






Exhibit 10.89






U.S. $75,000,000




REVOLVING CREDIT AGREEMENT,



dated as of February 11, 2011,



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 LLC,

as Sole Lead Arranger and Sole Bookrunner



 









 





	 	 	 	 	 	 	 

	ARTICLE 1 DEFINITIONS	 	 	1	 
	1.1

	 	Defined Terms
	 	 	1	 
	1.2

	 	Accounting Terms; GAAP
	 	 	13	 
	1.3

	 	Interpretation
	 	 	13	 
	ARTICLE 2 AMOUNT AND TERMS OF CREDIT	 	 	13	 
	2.1

	 	Commitments
	 	 	13	 
	2.2

	 	Minimum Amount of Each Borrowing; Maximum Number of Borrowings
	 	 	14	 
	2.3

	 	Notice of Borrowing
	 	 	14	 
	2.4

	 	Disbursement of Funds
	 	 	15	 
	2.5

	 	Repayment of Loans; Evidence of Debt
	 	 	15	 
	2.6

	 	Changes in Type of Revolving Credit Loan
	 	 	16	 
	2.7

	 	Pro Rata Borrowings
	 	 	17	 
	2.8

	 	Interest and Fees
	 	 	17	 
	2.9

	 	Interest Periods
	 	 	18	 
	2.10

	 	Increased Costs, Illegality, etc.
	 	 	19	 
	2.11

	 	Compensation
	 	 	21	 
	2.12

	 	Change of Lending Office
	 	 	22	 
	2.13

	 	Notice of Certain Costs
	 	 	22	 
	2.14

	 	RESERVED
	 	 	22	 
	2.15

	 	RESERVED
	 	 	22	 
	2.16

	 	Defaulting Lenders
	 	 	22	 
	ARTICLE 3 RESERVED	 	 	23	 
	ARTICLE 4 FEES; COMMITMENTS	 	 	23	 
	4.1

	 	Fees
	 	 	23	 
	4.2

	 	Voluntary Reduction of Revolving Credit Commitments
	 	 	23	 
	4.3

	 	RESERVED
	 	 	24	 
	4.4

	 	Mandatory Termination of Commitments
	 	 	24	 
	ARTICLE 5 PAYMENTS	 	 	24	 
	5.1

	 	Prepayments
	 	 	24	 
	5.2

	 	Method and Place of Payment
	 	 	24	 
	5.3

	 	Net Payments
	 	 	25	 
	5.4

	 	Computations of Interest and Fees
	 	 	28	 
	ARTICLE 6 CONDITIONS PRECEDENT	 	 	28	 






i 









 






	 	 	 	 	 	 	 

	6.1

	 	Conditions Precedent to Initial Credit Event
	 	 	28	 
	6.2

	 	Conditions Precedent to All Credit Events
	 	 	29	 
	ARTICLE 7 REPRESENTATIONS AND WARRANTIES	 	 	30	 
	7.1

	 	Organizational Status
	 	 	30	 
	7.2

	 	Capacity, Power and Authority
	 	 	30	 
	7.3

	 	No Violation
	 	 	30	 
	7.4

	 	Litigation
	 	 	31	 
	7.5

	 	Governmental Approvals
	 	 	31	 
	7.6

	 	True and Complete Disclosure
	 	 	31	 
	7.7

	 	Financial Condition; Financial Statements
	 	 	31	 
	7.8

	 	Tax Returns and Payments
	 	 	32	 
	7.9

	 	Environmental Matters
	 	 	32	 
	7.10

	 	Properties
	 	 	32	 
	7.11

	 	Pension and Welfare Plans
	 	 	33	 
	7.12

	 	Regulations U and X
	 	 	33	 
	7.13

	 	Investment Company Act
	 	 	33	 
	7.14

	 	No Material Adverse Change
	 	 	33	 
	7.15

	 	Deemed Repetition of Representations and Warranties
	 	 	33	 
	ARTICLE 8 AFFIRMATIVE COVENANTS	 	 	34	 
	8.1

	 	Information Covenants
	 	 	34	 
	8.2

	 	Books, Record and Inspections
	 	 	36	 
	8.3

	 	Maintenance of Insurance
	 	 	36	 
	8.4

	 	Payment of Taxes
	 	 	37	 
	8.5

	 	Organizational Existence
	 	 	37	 
	8.6

	 	Compliance with Statutes, Obligations, etc.
	 	 	37	 
	8.7

	 	Good Repair
	 	 	37	 
	8.8

	 	Transactions with Affiliates
	 	 	37	 
	8.9

	 	End of Fiscal Years; Fiscal Quarters
	 	 	38	 
	8.10

	 	Use of Proceeds
	 	 	38	 
	8.11

	 	Changes in Business
	 	 	38	 
	ARTICLE 9 NEGATIVE COVENANTS	 	 	38	 
	9.1

	 	Limitation on Liens
	 	 	38	 
	9.2

	 	Limitation on Fundamental Changes
	 	 	39	 






ii 









 






	 	 	 	 	 	 	 

	9.3

	 	Limitation on Dividends
	 	 	40	 
	9.4

	 	Debt to Capitalization Ratio
	 	 	40	 
	9.5

	 	Limitation on Sale-Lease Back Transactions
	 	 	40	 
	ARTICLE 10 EVENTS OF DEFAULT	 	 	41	 
	10.1

	 	Payments
	 	 	41	 
	10.2

	 	Representations, etc.
	 	 	41	 
	10.3

	 	Covenants
	 	 	41	 
	10.4

	 	Default Under Other Agreements
	 	 	41	 
	10.5

	 	Bankruptcy, etc.
	 	 	42	 
	10.6

	 	Judgments
	 	 	42	 
	10.7

	 	Change of Ownership
	 	 	42	 
	10.8

	 	Pension Plans
	 	 	42	 
	10.9

	 	Remedies
	 	 	43	 
	10.10

	 	Remedies Cumulative
	 	 	43	 
	ARTICLE 11 THE ADMINISTRATIVE AGENT	 	 	44	 
	ARTICLE 12 MISCELLANEOUS	 	 	46	 
	12.1

	 	Amendments and Waivers
	 	 	46	 
	12.2

	 	Notices
	 	 	47	 
	12.3

	 	No Waiver; Cumulative Remedies
	 	 	48	 
	12.4

	 	Survival of Representations and Warranties
	 	 	49	 
	12.5

	 	Payment of Expenses and Taxes
	 	 	49	 
	12.6

	 	Successors and Assigns; Participations and Assignments
	 	 	50	 
	12.7

	 	Replacements of Lenders under Certain Circumstances
	 	 	53	 
	12.8

	 	Adjustments; Set-off
	 	 	55	 
	12.9

	 	Marshalling; Payments Set Aside
	 	 	56	 
	12.10

	 	Counterparts
	 	 	56	 
	12.11

	 	Severability
	 	 	56	 
	12.12

	 	Integration
	 	 	56	 
	12.13

	 	Governing Law
	 	 	56	 
	12.14

	 	Submission to Jurisdiction; Waivers
	 	 	57	 
	12.15

	 	Acknowledgements
	 	 	57	 
	12.16

	 	Waivers of Jury Trial
	 	 	58	 
	12.17

	 	Confidentiality
	 	 	58	 






iii 









 






	 	 	 	 	 	 	 

	12.18

	 	Treatment of Loans
	 	 	58	 
	12.19

	 	USA Patriot Act
	 	 	59	 






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 Compliance Certificate







v 











 





     REVOLVING CREDIT AGREEMENT, dated as of February 11, 2011, 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”) 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 $75,000,000 at any one time outstanding. The Lenders are prepared to make
such loans upon the terms and conditions hereof, and, accordingly, the parties hereto agree as
follows:



ARTICLE 1

DEFINITIONS




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



     1.1 Defined Terms.



     “ABR” shall mean, for any day, a rate per annum equal to the greatest of (a) the rate of
interest (however designated) established by the Administrative Agent as its prime rate in effect
at its principal office in New York, New York, (b) the Federal Funds Effective Rate in effect on
such day plus 0.5% and (c) the LIBOR Rate for a one month Interest Period on such day (or if such
day is not a Business Day, the immediately preceding Business Day) plus 1%. Any change in the ABR
due to a change in any of the foregoing rates shall be effective as of the opening of business on
the effective date of such change in such rate.



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



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



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



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



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



 









 





     “Applicable Margin” and “Commitment Fee Rate” shall mean, for any day, the applicable rate per
annum set forth below under the caption “Applicable Margin” and “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 Margin	 	 
	 	 	LIBOR	 	ABR	 	Commitment
	Borrower's Debt Rating:	 	Loan	 	Loan	 	Fee Rate
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 1

A/A2 or higher
	 	 	1.250	%	 	 	0.250	%	 	 	0.125	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 2

A-/A3
	 	 	1.375	%	 	 	0.375	%	 	 	0.150	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 3

BBB+/Baa1 or lower
	 	 	1.500	%	 	 	0.500	%	 	 	0.175	%






     For purposes of this definition, (i) if no non-credit-enhanced long term senior unsecured debt
rating is available, the Applicable Margin 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 and the Commitment Fee Rate shall be based on the higher of the two ratings unless one of
the two ratings is two or more Categories lower than the other, in which case the Applicable Margin
and the Commitment Fee Rate shall be determined by reference to the Category next below the higher
of the two Categories, (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 3 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 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 and the Commitment Fee Rate shall be
determined by reference to the rating most recently in effect prior to such change or cessation.



2









 





     “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 LLC.



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



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



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



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



     “Authorized Officer”, 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 aggregate principal amount of all Revolving Credit Loans of such Lender then outstanding.



     “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.



3









 





     “Business Day” shall mean (a) for all purposes other than as covered by clause (b) below, any
day excluding Saturday, Sunday and any day that shall be in the City of New York a legal holiday or
a day on which banking institutions are authorized or required by law or other governmental actions
to close, and (b) with respect to all notices and determinations in connection with, and payments
of principal and interest on, LIBOR Loans, any day that is a Business Day described in clause (a)
excluding any day that shall be in the City of London a legal holiday or a day on which banking
institutions are authorized or required by law or other governmental actions to close.



     “Capital Lease”, as applied to any Person, shall mean any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to
be, accounted for as a finance lease obligation on the balance sheet of that Person.



     “Capital Stock” shall mean common shares, preferred shares or other equivalent equity
interests (howsoever designated) of capital stock of a corporation, equity preferred or common
interests or membership interests in a limited liability company, limited or general partnership
interests in a partnership or any other equivalent of such ownership interest.



     “Capitalized Lease Obligations” shall mean, as applied to any Person, all obligations under
Capital Leases of such Person and its Subsidiaries, in each case taken at the amount thereof
accounted for as liabilities in accordance with GAAP.



     “Change of Ownership” shall mean and be deemed to have occurred if (i) any person or group
(within the meaning of the Securities and Exchange Act of 1934, as amended, and the rules of the
Securities and Exchange Commission thereunder) shall become, directly or indirectly, the beneficial
owner of capital stock representing more than 35% of the ordinary voting power represented by the
issued and outstanding Voting Stock of 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 February 11, 2011.



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



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



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



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



4









 





     “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.



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



     “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, as determined by the Administrative Agent, that has
(a) failed to fund any portion of its Loans within three Business Days of the date required to be
funded by it hereunder, (b) notified the Borrower, the Administrative Agent or any Lender in
writing that it does not intend to comply with any of its funding obligations under this Agreement
or has made a public statement to the effect that it does not intend to comply with its funding
obligations under this Agreement or under other agreements in which it commits to extend credit
generally, (c) failed, within three Business Days after written request by the Administrative
Agent, acting in good faith, to provide a certification in writing from an authorized officer of
such Lender that it will comply with its obligations to fund prospective Loans under this
Agreement, (d) otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within three Business Days of the date when due,
unless the subject of a good faith dispute or (e) (i) become or is insolvent or has a parent
company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of
creditors or similar Person charged with reorganization or liquidation of its business, or a
custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent
to, approval of or acquiescence in any such proceeding or appointment or has a parent company that
has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business, or a custodian, appointed for it, or
has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence
in any such proceeding or appointment.



     “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,



5









 




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.



     “FATCA” means Section 1471 through 1474 of the Code, as of the date of this Agreement, and any
regulations or official interpretations thereof.



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



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




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





     “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.



     “F.R.S. Board” shall mean the Board of Governors of the Federal Reserve System or any
successor thereto.



6









 





     “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.



     “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



7









 




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.



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



     “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.



8









 





     “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.



     “Other Taxes” shall have the meaning provided in Section 12.5.



     “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)



9









 




incurred or deposits made in connection with workers’ compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds
and other similar obligations incurred in the ordinary course of business; (e) ground leases in
respect of real property on which facilities owned or leased by 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.



     “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 on such date; provided, that in the event that any
Lender shall hold more than 50% of such applicable amount, “Required Lenders” shall mean such
Lender plus at least one (1) additional Lender.



     “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



10









 




that becomes a Lender after the date hereof pursuant to Section 4.3, the amount specified as
such Lender’s “Revolving Credit Commitment” in the New Lender Supplement in Section 4.3 pursuant to
which such Lender assumed a Revolving Credit Commitment, in each case as the same may be changed
from time to time pursuant to the terms hereof (including pursuant to Sections 4.2 and 12.6).




     “Revolving Credit Commitment Percentage” shall mean, with respect to any Lender, the
percentage of the Total Revolving Credit Commitment represented by such Lender’s Revolving Credit
Commitment; provided that in the case of Section 2.16 when a Defaulting Lender shall exist,
“Revolving Credit Commitment Percentage” shall mean the percentage of the Total Revolving Credit
Commitment (disregarding any Defaulting Lender’s Revolving Credit Commitment) represented by such
Lender’s Revolving Credit Commitment. If the Total Revolving Credit Commitments have terminated or
expired, the Revolving Credit Commitment Percentages shall be determined based upon the Revolving
Credit Commitments most recently in effect, giving effect to any assignments and to the Lender’s
status as a Defaulting Lender at the time of determination.



     “Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the aggregate
principal amount of the Revolving Credit Loans of such Lender then outstanding.



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



     “Revolving Credit Maturity Date” shall mean February 11, 2013, 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.



     “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).



11









 





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



     “Terminated Lender” shall have the meaning provided in Section 12.7(a)(ii).



     “Termination Notice Date” shall have the meaning provided in Section 12.7(a)(ii).



     “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 $75,000,000.



     “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.



     “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.



     “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.



12









 





     “Welfare Plan” shall mean a “welfare plan”, as such term is defined in Section 3(1) of ERISA.



     1.2 Accounting Terms; GAAP.



     Except as otherwise expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time; provided that,
if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or
in the application thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given before or after such change in GAAP
or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any
other provision contained herein, all terms of an accounting or financial nature used herein shall
be construed, and all computations of amounts and ratios referred to herein shall be made (i)
without giving effect to any election under Accounting Standards Codification 825-10-25 (previously
referred to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards
Codification or Financial Accounting Standard having a similar result or effect) to value any
Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined
therein and (ii) without giving effect to any treatment of Indebtedness in respect of convertible
debt instruments under Financial Accounting Standards Board Staff Position APB 14-1 to value any
such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness
shall at all times be valued at the full stated principal amount thereof.



     1.3 Interpretation.



     The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Unless the context requires otherwise all references herein to Sections and
Schedules shall be construed to refer to Sections of, and Schedules to, this Agreement.



ARTICLE 2

AMOUNT AND TERMS OF CREDIT




     2.1 Commitments.



     (a) Subject to and upon the terms and conditions herein set forth, each Lender severally
agrees to make a loan or loans (each a “Revolving Credit Loan” and, collectively, the “Revolving
Credit Loans”) to the Borrower, which Revolving Credit Loans (i) shall be made at any time and from
time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (ii)
may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans
or LIBOR Loans (provided that all Revolving Credit Loans made by each of the Lenders
pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist
entirely of Revolving Credit Loans of the same Type), (iii) may be repaid and



13









 




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 exceeding
the Total Revolving Credit Commitment then in effect. As of the Closing Date, the Total Revolving
Credit Commitment will be $75,000,000.




     (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, 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.


Without in any way limiting the obligation of the Borrower to confirm in writing any notice it may
give hereunder by telephone, the Administrative Agent may act prior to receipt of written
confirmation without liability upon the basis of such telephonic notice believed by the
Administrative Agent in good faith to be from an Authorized Officer of the Borrower. In each such
case the applicable Borrower hereby waives the right to dispute the Administrative Agent’s record
of the terms of any such telephonic notice.







14









 








     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 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).



     2.5 Repayment of Loans; Evidence of Debt.



     (a) The Borrower shall, for the benefit of the Lenders, on the Revolving Credit Maturity Date,
(i) repay to the Administrative Agent the then-unpaid Revolving Credit Loans, and (ii) retire all
other then-outstanding Revolving Credit Exposure.



     (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the Indebtedness of the Borrower to the appropriate lending office of such Lender
resulting from each Loan made by such lending office of such Lender from time to time,



15









 




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.



     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



16









 




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.



     2.7 Pro Rata Borrowings.



     Each Borrowing of Revolving Credit Loans under this Agreement shall be made by the Lenders pro
rata on the basis of their then-applicable Revolving Credit Commitment Percentage; provided that
the Administrative Agent may adjust the proportions of the Lenders with respect to any Borrowing to
be made by such Lenders to ensure that no Lender’s Revolving Credit Exposure (after granting its
portion of such Borrowing) exceeds its Revolving Credit Commitment. It is understood that no
Lender shall be responsible for any default by any other Lender in its obligation to make Revolving
Credit Loans hereunder and that each Lender shall be obligated to make the Revolving Credit Loans
provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill its
commitments hereunder.



     2.8 Interest and Fees.



     (a) The unpaid principal amount of each ABR Loan shall bear interest from the date of the
Borrowing thereof until maturity (whether by acceleration or otherwise and both before and after
default and judgment) at a rate per annum that shall at all times be equal to the Applicable Margin
for ABR Loans plus the ABR in effect from time to time.



     (b) The unpaid principal amount of each LIBOR Loan shall bear interest from the date of the
Borrowing thereof until maturity (whether by acceleration or otherwise and both



17









 




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) RESERVED.



     (d) RESERVED.



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



18









 





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



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



     (c) if any LIBOR Period would otherwise expire on a day that is not a Business Day, such LIBOR
Period shall expire on the next succeeding Business Day; provided that if any LIBOR Period in
respect of a LIBOR Loan would otherwise expire 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 Loans (other than any such
increase or reduction attributable to (A) Taxes, (B) Other Taxes or (C) taxes excluded by
Section 5.3(a)(i)) because of (x) any change since the date hereof in any applicable law,
governmental rule, regulation, guideline or order (or in the interpretation or
administration thereof and including the introduction of any new law or governmental rule,
regulation, guideline or order), such as, for example, but not limited to, a change in
official reserve requirements (including any reserve requirements specified under
regulations issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including “Eurocurrency Liabilities” as therein defined or the



19









 







imposition of any tax on the Administrative Agent or any Lender on its loans, loan
principal, letters of credit, commitments, or other obligations, or its deposits, reserves,
other liabilities or capital attributable thereto), and/or (y) with respect to LIBOR Loans
only, other circumstances affecting the London interbank market; or




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


then, and in any such event, such Lender shall within a reasonable time thereafter give notice (if
by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to each of the other
Lenders). Thereafter (x) in the case of clause (i) above, LIBOR Loans shall no longer be available
from such Lender (and such Lender’s obligation to make such Revolving Credit Loans shall be
suspended) until such time as such Lender notifies the Administrative Agent, the Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer
exist (which notice such Lender agrees to give at such time when such circumstances no longer
exist), and any Notice of Borrowing or Notice of Continuation given by the Borrower with respect to
LIBOR Loans that have not yet been incurred shall be deemed, with respect to such Lender only, to
be a Notice of Borrowing or Notice of Continuation for ABR Loans, (y) in the case of clause (ii)
above, the Borrower shall pay to such Lender, promptly after receipt of written demand therefor,
such additional amounts (in the form of an increased rate of, or a different method of calculating,
interest or otherwise as such Lender in its reasonable discretion shall determine) as shall be
required to compensate such Lender for such increased costs or reductions in amounts receivable
hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender,
showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by
such Lender shall, absent clearly demonstrable error, be final and conclusive and binding upon all
parties hereto) other than any such increase or reduction attributable to taxes and (z) in the case
of clause (iii) above, the Borrower shall take one of the actions specified in Section 2.10(b) as
promptly as possible and, in any event, within the time period required by law.




     (b) At any time that any LIBOR Loan is affected by the circumstances described in Section
2.10(a)(ii) or 2.10(a)(iii), the Borrower may (and in the case of a LIBOR Loan affected pursuant to
Section 2.10(a)(iii) shall) either (i) if the affected LIBOR Loan is then being made pursuant to a
Credit Event or Borrowing by way of conversion into a LIBOR Loan, cancel said Credit Event or
Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing)
thereof on the same date that the Borrower was notified by a Lender pursuant to Section 2.10(a)(ii)
or 2.10(a)(iii), or (ii) if the affected LIBOR Loan is then outstanding, upon at least three
Business Days notice to the Administrative Agent, require the affected Lender to convert each such
LIBOR Loan into an ABR Loan; provided that if more than one Lender is affected at any time,
then all affected Lenders must be treated in the same manner pursuant to this Section 2.10(b).




20











 





     (c) If, after the date hereof, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, or compliance by a Lender or its parent with
any request or directive made or adopted after the date hereof regarding capital adequacy (whether
or not having the force of law) of any such Governmental Authority, has or would have the effect of
reducing the rate of return on such Lender’s or its parent’s capital or assets as a consequence of
such Lender’s commitments or obligations hereunder to a level below that which such Lender or its
parent could have achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender’s or its parent’s policies with respect to capital adequacy), then from
time to time, promptly after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender
or its parent for such reduction, it being understood and agreed, however, that a Lender shall not
be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any
request or directive to comply with, any such law, rule or regulation as in effect on the date
hereof. Each Lender, upon determining in good faith that any additional amounts will be payable
pursuant to this Section 2.10(c), will give prompt written notice thereof to the Borrower, which
notice shall set forth in reasonable detail the basis of the calculation of such additional
amounts, although the failure to give any such notice shall not, subject to Section 2.13, release
or diminish the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(c)
upon receipt of such notice.



     (d) For purposes of this Section 2.10, and notwithstanding anything herein to the contrary,
the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines
or directives thereunder or issued in connection therewith shall be deemed to have been enacted,
adopted and issued after the date hereof, regardless of the date enacted, adopted or issued.



     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.



21









 





     2.12 Change of Lending Office.



     If any Lender requests compensation under Section 2.10, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 5.3, then such Lender shall, if requested by the Borrower, use reasonable
efforts to designate a different lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.10 or 5.3, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.



     2.13 Notice of Certain Costs.



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



     2.14 RESERVED.



     2.15 RESERVED.



     2.16 Defaulting Lenders.



     Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a
Defaulting Lender:



     (a) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of
such Defaulting Lender pursuant to Section 4.1; and



     (b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender
shall not be included in determining whether all Lenders or the Required Lenders have taken or may
take any action hereunder (including any consent to any amendment or waiver pursuant to Section
12.1), provided that any waiver, amendment or modification requiring the consent of all
Lenders or each affected Lender which affects such Defaulting Lender differently than other
affected Lenders shall require the consent of such Defaulting Lender; provided,
further, that this clause (b) shall not permit (i) an increase in such Defaulting Lender’s
stated commitment amounts, (ii) the waiver, forgiveness or reduction of the principal amount of any
Indebtedness outstanding to such Defaulting Lender or (iii) the extension of the final maturity
date(s) of such Defaulting Lenders’ portion of any of the loans or other extensions of credit or
other obligations of the Borrower owing to such Defaulting Lender, or the extension



22









 




of any commitment to lend beyond the stated termination date of such commitment, in each case
without such Defaulting Lender’s consent.




     In the event that the Administrative Agent and the Borrower each agrees that a Defaulting
Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then
on such date such Lender shall purchase at par such Loans of the other Lenders as the
Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans
in accordance with its Revolving Credit Commitment Percentage.



ARTICLE 3

RESERVED.




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.



     (b) 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.



     (c) 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.



     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



23









 




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.




     4.3 RESERVED.



     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, without premium or penalty, in
whole or in part at any time and from time to time. Such prepayment of Revolving Credit Loans
shall be subject to the following conditions: (a) the Borrower shall give the Administrative Agent
written notice (or telephonic notice promptly confirmed in writing) of its intent to make such
prepayment, the amount of such prepayment and (in the case of LIBOR Loans) the specific
Borrowing(s) to be prepaid, which notice shall be given by the Borrower no later than 10:00 a.m.
(New York time) three Business Days prior to the date of such prepayment and shall promptly be
transmitted by the Administrative Agent to each of the Lenders; (b) each partial prepayment of
Revolving Credit Loans shall be in an amount that is a multiple of $100,000 and in an aggregate
principal amount of at least $5,000,000; provided that no partial prepayment of LIBOR Loans
made pursuant to a single Borrowing shall reduce the outstanding LIBOR Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount for LIBOR Loans; and (c) any
prepayment of LIBOR Loans pursuant to this Section 5.1 on any day other than the last day of a
LIBOR Period applicable thereto shall be subject to compliance by the Borrower with the applicable
provisions of Section 2.11; provided, further, that at the Borrower’s election in
connection with any prepayment pursuant to this Section 5.1, such prepayment shall not be applied
to any Revolving Credit Loan of a Defaulting Lender. Each prepayment of a Borrowing shall be
applied ratably to the Revolving Credit Loans included in the prepaid Borrowing.



     5.2 Method and Place of Payment.



     (a) Except as otherwise specifically provided herein, all payments to be made by the Borrower
under this Agreement shall be made, without set-off, counterclaim or deduction of any kind, to the
Administrative Agent for the ratable account of all the Lenders holding Revolving Credit Loans, 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



24









 




be distributed on the same day (if payment was actually received by the Administrative Agent
prior to 2:00 p.m. (New York time) on such day, otherwise the next Business Day) like funds
relating to the payment of principal or interest or Fees ratably to the Lenders entitled thereto.
A payment shall be deemed to have been made by the Administrative Agent on the date on which it is
required to be made under this Agreement if the Administrative Agent has, on or before such date,
taken steps to make such payment in accordance with the regulations or operating procedures of the
clearing or settlement system used by the Administrative Agent in order to make such payment.




     (b) Any payments under this Agreement that are made later than 2:00 p.m. (New York time) shall
be deemed to have been made on the next succeeding Business Day. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof shall
be extended to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect immediately prior
to such extension.



     5.3 Net Payments.



     (a) (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



25









 






     (D) pay to the Administrative Agent or such Lender, in addition to the payment
to which the Administrative Agent or such Lender is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure that the net amount
actually received by the Administrative Agent or such Lender (free and clear of any
such Taxes, whether assessed against the Borrower, the Administrative Agent or such
Lender) will equal the full amount the Administrative Agent or such Lender would
have received had no such deduction or withholding been required.




     (ii) If the Borrower fails to pay to the relevant Governmental Authority when due any
Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any
payment to or for the benefit of the Administrative Agent or any Lender under this Agreement
or fails to furnish the Administrative Agent or such Lender, as applicable, with the
documentation referred to in Section 5.3(a) when required to do so, the Borrower shall
forthwith on demand fully indemnify the Administrative Agent or such Lender for any
incremental taxes, interest, costs or penalties that may become payable by the
Administrative Agent or such Lender as a result of such failure.




     (iii) The Borrower’s obligations under this Section 5.3(a) shall survive the
termination of this Agreement and the payment of the Revolving Credit Loans and all other
amounts payable hereunder.



     (b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any
additional amounts in respect of withholding tax (including FATCA) applicable to any amount payable
under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such
Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the
request of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender
following the occurrence of and during the continuance of an Event of Default pursuant to Section
10.1 or 10.5.



     (c) Each Non-U.S. Lender shall:




     (i) deliver to the Borrower and the Administrative Agent two copies of either (x) in
the case of a Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”,
United States Internal Revenue Service Form W-8BEN, (together with a certificate
representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the
Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Code) of the Borrower and is not a controlled foreign corporation 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



26









 







that any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form previously delivered by
it to the Borrower; and




     (iii) obtain such extensions of time for filing and complete such forms or
certifications as may reasonably be requested in writing by the Borrower or the
Administrative Agent;


unless, in any such case, any change in treaty, law or regulation, has occurred prior to the date
on which any such delivery would otherwise be required that renders any such form inapplicable or
would prevent such Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the Borrower and the Administrative Agent. Each Person that shall become a
Participant pursuant to Section 12.6 or a Lender pursuant to Section 12.6 shall, upon the
effectiveness of the related transfer, be required to provide all the forms and statements required
pursuant to this Section 5.3(c), provided that in the case of a Participant such Participant shall
furnish all such required forms and statements to the Lender from which the related participation
shall have been purchased.




     (d) If the Borrower determines in good faith that a reasonable basis exists for contesting any
taxes for which indemnification has been demanded hereunder, the relevant Lender or the
Administrative Agent, as applicable, shall cooperate with the Borrower in challenging such taxes at
the Borrower’s expense if so requested by the Borrower. If any Lender or the Administrative Agent,
as applicable, receives a refund of, or credit for, a Tax for which a payment has been made by the
Borrower pursuant to this Agreement, which refund or credit in the good faith judgment of such
Lender or the Administrative Agent, as the case may be, is attributable to such payment made by the
Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse the
Borrower for such amount as the Lender or the Administrative Agent, as the case may be, determines
to be the proportion of the refund or credit as will leave it, after such reimbursement, in no
better or worse position than it would have been in if the payment had not been required. A Lender
or Administrative Agent shall claim any refund or credit that it determines is available to it,
unless it concludes in its reasonable discretion that it would be adversely affected by making such
a claim. Neither such Lender nor the Administrative Agent shall be obliged to disclose any
information regarding its tax affairs or computations to the Borrower in connection with this
paragraph (d) or any other provision of this Section 5.3.



     (e) Each Lender shall severally indemnify the Administrative Agent for any taxes (but, in the
case of any Taxes or Other Taxes, only to the extent that the Borrower has not already indemnified
the Administrative Agent for such Taxes or Other Taxes and without limiting the obligation of the
Borrower to do so) attributable to such Lender that are paid or payable by the Administrative Agent
in connection with this Agreement and any reasonable expenses arising therefrom or with respect
thereto, whether or not such taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The indemnity under this Section 5.3(e) shall be paid within ten (10) days
after the Administrative Agent delivers to the applicable Lender a certificate stating the amount
of taxes so paid or payable by the Administrative Agent. Such certificate shall be conclusive of
the amount so paid or payable absent manifest error.



27









 





     5.4 Computations of Interest and Fees.



     (a) All interest and fees hereunder shall be computed on the basis of a year of 360 days,
except that interest computed by reference to the ABR at times when the ABR is based on the prime
rate of the Administrative Agent shall be computed on the basis of a year of 365 days (or 366 days
in a leap year), and in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable ABR or LIBOR rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent manifest error.



     (b) All interest payments to be made under this Agreement shall be paid without allowance or
deduction for deemed re-investment or otherwise, both before and after maturity and before and
after default and/or judgment, if any, until payment of the amount on which such interest is
accruing, and interest will accrue on overdue interest, if any.



     (c) The amount of costs and expenses required to be paid or reimbursed by the Borrower
pursuant to Section 12.5 or any other provision of this Agreement shall bear interest until paid,
as well after as before demand, default, maturity and judgment, at the highest rate provided for in
Section 2.8(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.



28









 






     (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(b)
and (c) 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 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.




     (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.



     6.2 Conditions Precedent to All Credit Events.



     The agreement of each Lender to make any Loan (including such Lender’s Revolving Credit Loan)
requested to be made by it on any date (including its initial Revolving Credit Loans) on any date
is subject to the satisfaction of the following conditions precedent:




     (a) No Default; Representations and Warranties True and Correct. At the time of each Credit
Event and also after giving effect thereto (i) there shall exist no Default or Event of Default and
(ii) all representations and warranties made by the Borrower contained herein (other than, except
in the case of the initial Credit Event, Section 7.14 hereof) shall be true and correct in all
material respects with the same effect as though such representations and warranties had been made
on and as of the date of such Credit Event (except where such representations and warranties
expressly relate to an earlier date, in which case such representations and warranties shall have
been true and correct in all material respects as of such earlier date).



29









 






     (b) Notice of Borrowing. 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.



     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 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.



     7.1 Organizational Status.



     The Borrower is validly organized and existing and in good standing under the laws of the
state or jurisdiction of its incorporation or organization, is duly qualified to do business and is
in good standing as a foreign entity in each jurisdiction where the nature of its business requires
such qualification (except where the failure to be so qualified could not reasonably be expected to
result in a Material Adverse Effect), and has full power and authority and holds all requisite
governmental licenses, permits and other approvals to enter into and perform its obligations under
this Agreement, to own and hold under lease its property and to conduct its business substantially
as currently conducted by it.



     7.2 Capacity, Power and Authority.



     The Borrower has the capacity, power and authority to execute, deliver and carry out the terms
and provisions of this Agreement and has taken all necessary action, partnership, corporate or
otherwise, to authorize the execution, delivery and performance of this Agreement. The Borrower
has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid and
binding obligation of the Borrower enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and subject to general principles of equity.



     7.3 No Violation.



     Neither the execution, delivery nor performance by the Borrower of this Agreement nor
compliance with the terms and provisions thereof and the other transactions contemplated therein
will (a) contravene any applicable provision of any material law, statute, rule, regulation, order,
writ, injunction or decree of any court or Governmental Authority, (b) result in any breach of any
of the terms, covenants, conditions or provisions of, or constitute a default under, or result in
the creation or imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of the Borrower or any of its Subsidiaries pursuant to, the terms of any
material indenture, loan agreement, lease agreement, mortgage, deed of trust, agreement or other
material instrument to which the Borrower or any of its Subsidiaries is a party or by which it or



30









 




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 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 Borrower for the fiscal year ending December 31, 2009 and with respect to the fiscal quarters
ending March 31, 2010, June 30, 2010 and September 30, 2010. Such financial statements present
fairly in all material respects the consolidated financial position of the



31









 







Borrower at the
respective dates of said statements and the results of operations for the
respective periods covered thereby, subject, in the case of quarterly financial statements, to
changes resulting from audit and normal year-end audit adjustments. 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




     (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.



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     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, 2009.



     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 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.



33









 





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 audited by an
independent auditing firm of recognized national standing whose opinion shall not be qualified as
to the scope of audit or as to the status of the Borrower or any of its Subsidiaries as a going
concern, together in any event with a no-default letter from such auditing firm stating that in the
course of its regular audit of the business of the Borrower and its Subsidiaries, which audit was
conducted in accordance with generally accepted auditing standards, as established by the Auditing
Standards Board (United States) and with auditing standards of the Public Company Accounting
Oversight Board (United States), such auditing firm has obtained no knowledge of any Default or
Event of Default relating to Section 9.4 that has occurred and is continuing or, if in the opinion
of such auditing firm such a Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof.




     (b) Quarterly Financial Statements. As soon as available and in any event on or before the
date that is 45 days after the end of each of the first three fiscal quarters in each fiscal year
of the Borrower, the consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal quarter and the related consolidated statement of operations for such fiscal quarter
and for the elapsed portion of the fiscal year ended with the last day of such fiscal quarter, and
the related consolidated statement of cash flows 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.




     (c) Officer’s Certificates. At the time of the delivery of the financial statements provided
for in Sections 8.1(a) and (b), a certificate of an Authorized Officer of the Borrower in
substantially the form of Exhibit E (a “Compliance Certificate”) to 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



34









 







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 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



35









 







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 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.



36









 





     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 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.



37









 





     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 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;




     (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;



38









 






     (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 BBB- or higher from
Moody’s and Baa1 or higher from S&P, 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 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



39









 







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
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




40












 




$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 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 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



41









 





     (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.



     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



42









 




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; and/or (iii) 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 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.



43









 





ARTICLE 11

THE ADMINISTRATIVE AGENT




          Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.




          The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.




          The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 12.1), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
12.1) or in the absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof
is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or
any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in
Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.




          The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be






44









 







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 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, 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.




          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.








45









 








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 increase the amount of any of the Revolving Credit Commitments of any Lender, 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
Article 11 without the written consent of the then-current Administrative Agent, or (iv) 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
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.



46









 





     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

27175 Energy Way

Novi, MI 48377

Attention: Cameron M. Bready

Facsimile No.: (248) 380-2923

Telephone No.: (248) 946-3631
	 
	 	(ii)	 	The Administrative Agent:
	 
	 	 	 	JPMorgan Chase Bank, N.A.

Loan Operations

10 South Dearborn, 7th Floor

Chicago, IL 60603

Attention: Teresita Siao

Facsimile No.: (888) 266-8058
	 
	 	 	 	with copy to (except in the case of notices relating to borrowings,
continuations and conversions):
	 
	 	 	 	JPMorgan Chase Bank, N.A.

10 South Dearborn, 9th Floor

Mail Code IL1-0090

Chicago, IL 60603

Attention: Nancy R. Barwig

                   Credit Executive, 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 IL1-0874




47









 






	 	 	 	Chicago, IL 60603

Attention: Mary McCorry

Facsimile No.: (312) 325-3238




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




     (b) Electronic Communications. Notices and other communications to the Lenders hereunder may
be delivered or furnished by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II
unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative
Agent or the Borrower may, in its discretion, agree to accept notices and other communications to
it hereunder by electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications.



     (c) Communications on Electronic Transmission System. The Borrower agrees that the
Administrative Agent may make communications available to the Lenders by posting such
communications on Intralinks or a substantially similar electronic transmission system (the
“Platform”). THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS DEFINED
BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE
PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE
PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, THE
“AGENT PARTIES”) HAVE ANY LIABILITY TO THE BORROWER, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR
DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, 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,



48









 




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.



     (a) The Borrower agrees (i) 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, (ii) to pay or reimburse each Lender and
the Administrative Agent for all its reasonable and documented costs and expenses incurred in
connection with the enforcement or preservation of any rights under, or “workout” or restructuring
of, this Agreement and any such other documents, including the reasonable fees, disbursements and
other charges of counsel to each Lender and of counsel to the Administrative Agent, (iii) to pay,
indemnify, defend and hold harmless each Lender and the Administrative Agent from, any and all
recording and filing fees and any and all liabilities with respect to, or resulting from any delay
in paying, stamp, excise and other similar taxes, if any, that may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or administration of any
of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement and any such other documents (collectively,
“Other Taxes”), and (iv) to pay, indemnify, defend and hold harmless each Lender, the Arranger and
the Administrative Agent and their respective directors, officers, employees, trustee, agents and
Affiliates (collectively, the “Indemnitees”) from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including reasonable and documented fees,
disbursements and other charges of counsel incurred in connection with any investigative,
administrative or judicial proceeding commenced or threatened by any Person, whether or not any
such Indemnitee shall be designated as a party or potential party thereto, and any fees or expenses
incurred by any Indemnitee in enforcing this indemnity), whether direct, indirect or consequential,
whether based on strict liability or negligence, and whether based on any federal, provincial or
foreign laws, statutes, rules, regulations or guidelines (including Environmental Laws), common
law, equity, contract or otherwise that may be imposed on, incurred by or asserted against any
Indemnitee, in any manner arising out of or relating to (A) this Agreement and any other agreements
or documents contemplated hereby or thereby, the other transactions contemplated hereby (including
the execution, delivery, enforcement, performance and administration of this Agreement and the
breach by the Borrower of, or default by the Borrower



49









 




under, any of the provisions of this Agreement, (B) the violation of, non-compliance with or
liability under, any Environmental Law applicable to the operations of the Borrower or any of its
Subsidiaries or applicable to any of the Real Estate, or (C) any Environmental Claim or any
Hazardous Materials relating to or arising from, directly or indirectly, any past or present
activity, operation, land ownership, possession or control, or practice of, the Borrower or any of
its Subsidiaries from time to time (all the foregoing in this clause (iv), collectively, the
“indemnified liabilities”); provided that the Borrower shall have no obligation hereunder
to any Indemnitee with respect to indemnified liabilities arising from the gross negligence or
willful misconduct of such Indemnitee as determined by a final judgment of a court of competent
jurisdiction and provided further that the Borrower shall have no obligation hereunder to any
Indemnitee with respect to claims that do not involve an act or omission of the Borrower or ay of
its affiliates and that is brought by the Administrative Agent, the Arranger or any Lender against
any other Lender. The agreements in this Section 12.5 shall survive repayment of the Loans and all
other amounts payable hereunder.




     Each of the Lenders, 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.



     (b) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent or the Arranger under paragraph (a) of this Section, each Lender severally
agrees to pay to the Administrative Agent or the Arranger, as the case may be, such Lender’s
Revolving Credit Commitment Percentage (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent or the Arranger in its capacity as such.



     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 assigns permitted hereby,
except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign
or otherwise transfer its rights or obligations hereunder except in accordance with this Section.
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,
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 and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.







50









 








          (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 the Borrower shall be deemed to have consented to any
such assignment unless it shall object thereto by written notice to the Administrative Agent
within fifteen (15) days after having received notice thereof), provided that no
consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any
other assignee; and




     (B) the Administrative Agent.



          (ii) Certain Conditions to Assignments. Assignments shall be subject to the following
additional conditions:





     (A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Revolving Credit
Commitment, Revolving Credit Loans, the amount of the Revolving Credit Commitment, Revolving
Credit Loans, of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, provided that no such consent of the
Borrower shall be required if an Event of Default has occurred and is continuing;




     (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 obliga-






51









 







tions 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
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 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 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 Acceptance and record
the information therein in the Register unless and until such payment shall have been made in full,
together with all accrued interest thereon. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this paragraph.




          (vi) No Assignment to the Borrower or its Affiliates. No assignment pursuant to this
Section 12.6 shall be made to the Borrower or any of its Affiliates.




          (c) Participations.




          (i) Participations Generally. Any Lender may, without the consent of the Borrower or
the Administrative Agent, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment and the Revolving Credit
Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall
remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (C) the Borrower, the Administrative Agent and the other






52









 







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.




     12.7 Replacements of Lenders under Certain Circumstances.



     (a) If any Lender requests compensation under Section 2.10, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 5.3, or if any Lender becomes a Defaulting Lender, or if any Lender is affected
in the manner described in Section 2.10(a)(iii) and as a result thereof any of the actions
described in such Section is required to be taken, then the Borrower may, at its sole expense and
effort:




     (i) upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 12.6) all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) no Default or Event of Default
shall have occurred and be continuing at the time of such assignment, (ii) the Borrower
shall have received the prior written consent of the Administrative Agent, which consent
shall not unreasonably be withheld, (iii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans, accrued



53









 







interest thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts) and (iv) in the case of any such assignment
resulting from payments required to be made pursuant to Section 2.10 or a claim for
compensation under Section 2.11, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to
apply; or




     (ii) in the case of any Lender becoming a Defaulting Lender, then, effective upon the
date of notice to such Defaulting Lender (the “Terminated Lender”) and the Administrative
Agent (such date, the “Termination Notice Date”), cause (1) the Terminated Lender’s
Revolving Credit Commitment to be terminated in full (but without a reduction or termination
of the Revolving Credit Commitments of the other Lenders), (2) the aggregate amount of the
Revolving Credit Commitments to be automatically reduced by the amount of the Terminated
Lender’s Revolving Credit Commitment and (3) each remaining Lender’s Revolving Credit
Commitment Percentage to be automatically increased ratably such that the sum of the
Revolving Credit Commitment Percentages of the Lenders other than the Terminated Lender
shall be 100%; provided that, no Default or Event of Default shall have occurred and
be continuing at the time of such termination.



     (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.



     (c) If applicable pursuant to Section 12.7(a)(ii), from and after the Termination Notice Date
relating to any Terminated Lender, the Revolving Credit Commitment of such Terminated Lender shall
each be zero. Notwithstanding anything in this Agreement or otherwise to the contrary, no
Terminated Lender shall be entitled to receive fees or other charges owing to such Terminated
Lender with respect to its Revolving Credit Commitment as to any period from and after the
Termination Notice Date relating to such Terminated Lender.



54









 





     12.8 Adjustments; Set-off.



     (a) If any Defaulting Lender shall fail to make any payment required to be made by it pursuant
to Section 2.4(b), 3.3(c), 3.4(c), 12.5(b) or 12.8(c), then the Administrative Agent may, in its
discretion and notwithstanding any contrary provision hereof, (i) apply for the benefit of the
Administrative Agent or any Lender any amounts thereafter received by the Administrative Agent for
the account of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account
as cash collateral for, and application to, any future funding obligations of such Lender under
such Sections; in the case of each of (i) and (ii) above, in any order as determined by the
Administrative Agent in its discretion.



     (b) After the occurrence and during the continuance of an Event of Default, in addition to any
rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior
notice to the Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the Borrower hereunder
(whether at the stated maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the account of the
Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after
any such set-off and application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.



     (c) If any Finance Party shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of setoff or otherwise) on account of any Credit Event (other than
pursuant to the terms of Section 2.10, 2.11 or 5.3) in excess of its pro rata share of payments
obtained by all Finance Parties, such Finance Party shall purchase from the other Finance Parties
such participations in Credit Events made by them as shall be necessary to cause such purchasing
Finance Party to share the excess payment or other recovery ratably (to the extent such other
Finance Parties were entitled to receive a portion of such payment or recovery) with each of them;
provided that if all or any portion of the excess payment or other recovery is thereafter recovered
from such purchasing Finance Party, the purchase shall be rescinded and each Finance Party which
has sold a participation to the purchasing Finance Party shall repay to the purchasing Finance
Party the purchase price to the ratable extent of such recovery together with an amount equal to
such selling Finance Party’s ratable share (according to the proportion of (a) the amount of such
selling Finance Party’s required repayment to the purchasing Finance Party to (b) total amount so
recovered from the purchasing Finance Party) of any interest or other amount paid or payable by the
purchasing Finance Party in respect of the total amount so recovered. The Borrower agrees that any
Finance Party purchasing a participation from another Finance Party pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment (including pursuant to
clause (b) above) with respect to such participation as fully as if such Finance Party were the
direct creditor of the Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law any Finance Party receives a secured claim in lieu of a
setoff to which this Section applies, such Finance



55









 




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 or Lenders (or to the Administrative Agent for the benefit of Lenders), or
the Administrative Agent or Lenders enforce any security interests or exercise their rights of
setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any bankruptcy law, any other
provincial, state or federal law, common law or any equitable cause, then, to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights
and remedies therefor or related thereto, shall be revived and continued in full force and effect
as if such payment or payments had not been made or such enforcement or setoff had not occurred.



     12.10 Counterparts.



     This Agreement may be executed by one or more of the parties to this Agreement on any number
of separate counterparts (including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent.



     12.11 Severability.



     Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.



     12.12 Integration.



     This Agreement represents the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative to subject matter
hereof not expressly set forth or referred to herein.



     12.13 Governing Law.



     THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW



56









 




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




     (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.



57









 





     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 shall hold all non-public information furnished by or on
behalf of the Borrower in connection with such Lender’s evaluation of whether to become a Lender
hereunder or obtained by such Lender or the Administrative Agent pursuant to the requirements of
this Agreement (“Confidential Information”), in accordance with its customary procedure for
handling confidential information of this nature and (in the case of a Lender that is a bank) in
accordance with safe and sound banking practices and in any event may make disclosure as required
or requested by any Governmental Authority, representatives thereof or any nationally recognized
rating agency that requires access to information about such Lender’s investment portfolio in
connection with ratings issued with respect to such Lender or pursuant to legal process or to such
Lender’s or the Administrative Agent’s lawyers, professional advisors or independent auditors or
Affiliates; provided that, unless specifically prohibited by applicable law or court order, each
Lender and the Administrative Agent shall notify the Borrower of any request by any governmental
agency or representative thereof (other than any such request in connection with an examination of
the financial condition or regulatory compliance of such Lender by such Governmental Authority or
in connection with ratings by such rating agency with respect to such Lender) for disclosure of any
such non-public information prior to disclosure of such information, and provided further that in
no event shall any Lender or the Administrative Agent be obligated or required to return any
materials furnished by the Borrower or any Subsidiary of the Borrower. Each Lender and the
Administrative Agent agrees that it will not provide to prospective Assignees or Participants or to
prospective direct or indirect contractual counterparties in swap agreements to be entered into in
connection with 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.



     (b) The Borrower acknowledges that the Administrative Agent 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 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.



58









 





     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] 






59









 








     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., its sole member
 	 
	 	 	 
	 	By:  	                                                   /s/ Cameron M. Bready
 	 
	 	 	Name:  	Cameron M. Bready 	 
	 	 	Title:  	Executive Vice President, Treasurer and

Chief Financial Officer 	 
	 



[Signature Page to Credit Agreement]





 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as the Administrative Agent and Lender

 	 
	 	By:  	/s/ Nancy R. Barwig
 	 
	 	 	Name:  	Nancy R. Barwig 	 
	 	 	Title:  	Credit Executive 	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	BARCLAYS BANK PLC,

as Lender

 	 
	 	By:  	/s/ David Barton
 	 
	 	 	Name:  	David Barton 	 
	 	 	Title:  	Director 	 
	 



[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.
	 	$	37,500,000.00	 	 	 	50.0	%
	 	 	 	 	Loan Operations 

	 	 	 	 	 	 	 	 
	 	 	 	 	10 South Dearborn, 7th Floor 

	 	 	 	 	 	 	 	 
	 	 	 	 	Chicago, IL 60603 

	 	 	 	 	 	 	 	 
	 	 	 	 	Attention: Teresita Siao 

	 	 	 	 	 	 	 	 
	 	 	 	 	Facsimile No.: (888) 266-8058 
	 	 	 	 	 	 	 	 
	 	 	 	 
	 	 	 	 	with copy to (except in the 

	 	 	 	 	 	 	 	 
	 	 	 	 	case of notices relating to 

	 	 	 	 	 	 	 	 
	 	 	 	 	borrowings, continuations and
	 	 	 	 	 	 	 	 
	 	 	 	 	conversions): 
	 	 	 	 	 	 	 	 
	 	 	 	 
	 	 	 	 	JPMorgan Chase Bank, N.A. 

	 	 	 	 	 	 	 	 
	 	 	 	 	10 South Dearborn, 9th Floor 

	 	 	 	 	 	 	 	 
	 	 	 	 	Mail Code IL1-0090 

	 	 	 	 	 	 	 	 
	 	 	 	 	Chicago, IL 60603 

	 	 	 	 	 	 	 	 
	 	 	 	 	Attention: Nancy R. Barwig 

	 	 	 	 	 	 	 	 
	 	 	 	 	                  Credit Executive, 

	 	 	 	 	 	 	 	 
	 	 	 	 	                  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 IL1-0874

	 	 	 	 	 	 	 	 
	 	 	 	 	Chicago, IL 60603

	 	 	 	 	 	 	 	 
	 	 	 	 	Attention: Mary McCorry

	 	 	 	 	 	 	 	 
	 	 	 	 	Facsimile No.: (312) 325-3238
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 
	Barclays Bank PLC	 	Barclays Bank PLC
	 	$	37,500,000.00	 	 	 	50.0	%
	 	 	 	 	745 Seventh Avenue

	 	 	 	 	 	 	 	 
	 	 	 	 	New York, New York 10019
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Total amount
	 	$	75,000,000.00	 	 	 	100	%







 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 






SCHEDULE II

ENVIRONMENTAL MATTERS




NONE.



 









 





SCHEDULE III

PENSION AND WELFARE MATTERS




NONE.



 









 





1 


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: Teresita Siao

Facsimile No.: (888) 266-8058





     Pursuant to the Revolving Credit Agreement, dated as of February 11, 2011 (as the same may be
amended, modified, supplemented, restated or replaced from time to time, the “Revolving Credit
Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein
defined), among ITC 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,

as the Borrower



By:  ITC Holdings Corp., its sole member

 	 
	 	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: Teresita Siao

Facsimile No.: (888) 266-8058





          Pursuant to the Revolving Credit Agreement, dated as of February 11, 2011 (as the same may be
amended, modified, supplemented, restated or replaced from time to time, the “Revolving Credit
Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein
defined), among ITC 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,

as the Borrower



By:  ITC Holdings Corp., its sole member

 	 
	 	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 February 11, 2011 (as the same
may be amended, modified, supplemented, restated or replaced from time
to time, the “Revolving Credit Agreement”; the terms defined therein
and not otherwise defined herein being used herein as therein
defined), among ITC 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 and the Sole Member of the Borrower has not passed, confirmed or
consented to any amendments or variations to such articles;
	 
	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 on the date
hereof and as of the date of the adoption of the written consent referred to in paragraph 4
below 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 the written
consent of the Sole Member of the Borrower, dated December 6, 2010, which written consent 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 genuine specimen signature of each such person is as set out opposite his name
below:




 









 











	 	 	 	 	 	 	 
	 
	 	Daniel J. Oginsky
	 	 	 	 
	 
	 	Senior Vice President and
	 	 	 	 
	 
	 	General Counsel	 	 
	 	 
	 
	 	 	 	 	 	 
	 
	 	Cameron M. Bready
	 	 	 	 
	 
	 	Executive Vice President, Treasurer
	 	 	 	 
	 
	 	and Chief Financial Officer	 	 
	 	 






 









 






     IN WITNESS WHEREOF, I have signed this Certificate this      th day of February, 2011.



	 	 	 	 	 
	 	 	 
	 	

 	 
	 	Name:  	Daniel J. Oginsky 	 
	 	Title:  	Senior Vice President and General
Counsel 	 
	 




     I, Cameron M. Bready, Executive Vice President, Treasurer and Chief Financial Officer of the
Sole Member of the Borrower, DO HEREBY CERTIFY that Daniel J. Oginsky has been duly elected (or
appointed) and has duly qualified as, and on this day is, the Senior Vice President and General
Counsel of the Sole Member of the Borrower, and the signature above is his genuine signature.



	 	 	 	 	 
	 	 	 
	 	

 	 
	 	Name:  	Cameron M. Bready 	 
	 	Title:  	Executive Vice President, Treasurer
and
 Chief Financial Officer 	 



 









 






	 	 	 	 	 



Schedule A

Articles of Organization

[See Attached]









 









 








Schedule B

Operating Agreement

[See Attached]









 









 








Schedule C

Resolutions

[See Attached]





 











 





EXHIBIT D




Form of New Lender Supplement




          Reference is made to the REVOLVING CREDIT AGREEMENT, dated as of February
[     ], 2011, 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

27175 Energy Way

Novi, MI 48377

Attention: Cameron M. Bready

Facsimile No.: (248) 380-2923
	 
	 	(b)	 	The Administrative Agent:
	 
	 	 	 	JPMorgan Chase Bank, N.A.

Loan Operations

10 South Dearborn, 7th Floor

Chicago, IL 60603

Attention: Teresita Siao

Facsimile No.: (888) 266-8058
	 
	 	 	 	with copy to:





 









 











	 	 	 	JPMorgan Chase Bank, N.A.

10 South Dearborn, 9th Floor

Mail Code IL1-0090

Chicago, IL 60603

Attention: Nancy R. Barwig

                  Credit Executive, 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 IL1-0874

Chicago, IL 60603

Attention: Mary McCorry

Facsimile No.: (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                     , 20   .





	 	 	 	 	 	 
	Revolving Credit Commitments:  	 	
 	 
	 	 	
Name of Lender

 	 
	 	 	By:  	 	 
	 	 	 	Name:  	 	 
	 	 	 	Title:  	 	 


Accepted and agreed:





	 	 	 	 	 
	 	ITC MIDWEST LLC,

as the Borrower



By: ITC Holdings Corp., its sole member
 	 	 
	 	 	 
	 	By:  	
 	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A.

as Administrative Agent

 	 	 
	By:  	 	 	 
	 	Name:	 	 	 
	 	Title:	 	 	 
	 




 









 





EXHIBIT E




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 February [     ], 2011 (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
	 	 	                    	%