EXHIBIT 10(d)3
ALLETE 2006 FORM 10-K
SECOND AMENDMENT TO
FOURTH AMENDED AND RESTATED COMMITTED FACILITY LETTER
This Second Amendment to Fourth Amended and Restated Committed Facility
Letter (this "AMENDMENT") is dated as of December 14, 2006, by and among ALLETE,
INC., a Minnesota corporation (the "COMPANY"), the banks from time to time party
to the Committed Facility Letter (as hereinafter defined) (each a "BANK" and
collectively the "BANKS") and LASALLE BANK NATIONAL ASSOCIATION, in its capacity
as agent for the Banks (in such capacity, the "AGENT").
WITNESSETH THAT:
WHEREAS, the Company, the Banks and the Agent are party to that certain
Fourth Amended and Restated Committed Facility Letter dated as of January 11,
2006 (as amended by that certain First Amendment to Fourth Amended and Restated
Committed Facility Letter dated as of June 9, 2006, together with all exhibits,
schedules, attachments, appendices and further amendments thereof, the
"COMMITTED FACILITY LETTER"); and
WHEREAS, the Company has requested that the Committed Facility Letter be
amended as set forth herein and the Banks are agreeable to such request on the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company, the Banks and the
Agent hereby agree as set forth below.
1. The Committed Facility Letter is amended as follows:
(a) The defined term "INITIAL MATURITY DATE" appearing in the
second sentence of Section 1(f) ("MATURITY") is hereby amended by deleting
the date "January 11, 2011" and substituting the date "January 11, 2012"
therefor.
(b) The defined term "EXTENDED MATURITY DATE" appearing in the
second paragraph of Section 1(f) is hereby amended by deleting the dates
"January 11, 2012" and "January 11, 2013" appearing in clauses (i) and (ii)
thereof and substituting therefor the dates "January 11, 2013" and "January
11, 2014", respectively.
(c) The definition of "APPLICABLE MARGIN" appearing in Section 8 is
hereby amended by deleting said definition in its entirety and substituting
the following new definition in lieu thereof:
"APPLICABLE MARGIN" means (i) with respect to Eurodollar Loans, (a)
0.180% per annum for any day Level I Status exists; (b) 0.270% per annum
for any day Level II Status exists; (c) 0.350% per annum for any day
Level III Status exists; (d) 0.425% per annum for any day Level IV
Status exists;
(e) 0.525% per annum for any day Level V Status exists, and (f) 0.800%
per annum for any day Level VI Status exists; and (ii) with respect to
Prime Rate Loans, 0.000% per annum.
(d) The definition of "FUNDED DEBT" appearing in Section 8 is
hereby amended by deleting clauses (d) and (e) thereof.
(e) The definition of "FACILITY FEE RATE" appearing in Section 8 is
hereby amended by deleting said definition in its entirety and substituting
the following new definition in lieu thereof:
"FACILITY FEE RATE" means a rate equal to (i) 0.070% per annum for any
day Level I Status exists; (ii) 0.080% per annum for any day Level II
Status exists; (iii) 0.100% per annum for any day Level III Status
exists; (iv) 0.125% per annum for any day Level IV Status exists; (v)
0.175% per annum for any day Level V Status exists; and (vi) 0.200% per
annum for any day Level VI Status exists.
(f) The definition of "REQUIRED BANKS" appearing in Section 8 is
hereby amended by deleting said definition in its entirety and substituting
the following new definition in lieu thereof:
"REQUIRED BANKS" means, at any time, Banks having more than 50.0% of the
aggregate amount of the Commitments.
(g) The definition of "TOTAL CAPITAL" appearing in Section 8 is
hereby amended by deleting said definition in its entirety and substituting
the following new definition in lieu thereof:
"TOTAL CAPITAL" means, as of any date determination, the sum of
Consolidated Net Worth and Funded Debt.
(h) Section 8 is further amended by adding the following new
defined term in its appropriate alphabetic order:
"CONSOLIDATED NET WORTH" means, as of any date of determination, the sum
of stockholders' equity (including preferred stock and QUIPs), PLUS
additional paid-in capital, PLUS retained earnings (or MINUS accumulated
deficits) plus preferred securities of the Company and its Subsidiaries,
PROVIDED, however, that the computation of Consolidated Net Worth shall
exclude Accumulated Other Comprehensive Income/Loss and unearned ESOP
shares, all of the foregoing determined with respect to the Company and
its Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied.
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2. Except as expressly amended hereby, the Committed Facility Letter and
all other documents executed in connection therewith shall remain in full force
and effect in accordance with their respective terms. The Committed Facility
Letter, as amended hereby, and all rights and powers created thereby and
thereunder or under such other documents are in all respects ratified and
confirmed. From and after the date hereof, the Committed Facility Letter shall
be deemed to be amended and modified as herein provided and, except as so
amended and modified, the Committed Facility Letter shall continue in full force
and effect in accordance with its terms and the Committed Facility Letter and
this Amendment shall be read, taken and construed as one and the same
instrument. On and after the date hereof the term "AGREEMENT" as used in the
Committed Facility Letter and all other references to the Committed Facility
Letter in the Committed Facility Letter, the other documents executed in
connection therewith and/or herewith or any other instrument, document or
writing executed by the Company or any other person or furnished to the Agent
and/or the Banks by the Company, or any other person in connection herewith or
therewith, shall be deemed to be a reference to the Committed Facility Letter as
hereby amended.
3. The effectiveness of this Amendment is subject to the satisfaction of
the following conditions precedent:
(a) The Company and each Bank shall have executed and delivered
this Amendment to Agent together with such other documents and instruments
as Agent may reasonably require;
(b) The payment of the Extension Fee (as defined below) to the
Agent for the benefit of the Banks;
(c) No Default or Event of Default shall have occurred and be
continuing; and
(d) Agent shall have received a certificate of the Secretary of the
Company showing the names and titles, and bearing the signatures of, the
officers of the Company authorized to execute this Amendment.
4. On and as of the date hereof, the Company represents and warrants to the
Agent and to the Banks that:
(a) The representations and warranties contained in this Amendment
and the Committed Facility Letter are true and correct in all material
respects, in each case as though made on and as of the date hereof, except
to the extent such representations and warranties relate solely to an
earlier date (and then shall have been true and correct as of such earlier
date); and
(b) Both before and after giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing or would result
from the execution and delivery of this Amendment; and
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(c) The Company is, and will be, in full compliance with all of the
material terms, conditions and all other provisions of this Amendment and
the Credit Documents; and
(d) This Amendment has been duly authorized, executed and delivered
on its behalf, and both the Committed Facility Letter, both before being
amended and supplemented hereby and as amended and supplemented hereby, and
this Amendment constitute its legal, valid and binding obligation
enforceable against it in accordance with their terms, except to the extent
that a remedy or default may be determined by a court of competent
jurisdiction to constitute a penalty and except to the extent that
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights or by
general principles of equity.
5. The Company agrees to reimburse the Agent and/or the Banks for
reasonable fees and expenses incurred with respect to the preparation of this
Amendment and all matters incidental thereto. Without limiting the foregoing,
the Company shall pay to the Agent for the ratable benefit of the Banks, a
non-refundable $37,500 extension fee (the "EXTENSION FEE"), which Extension Fee
shall be due and payable and fully earned upon the execution and delivery by the
Agent and the Banks of this Amendment.
6. This Amendment shall be construed in accordance with and governed by the
internal laws of the State of Illinois, without regard to its conflicts of laws
principles.
7. This Amendment may be signed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Amendment may also be signed by facsimile, and
any facsimile signature hereto shall for all purposes be deemed an original
signature.
8. Except as otherwise specified herein, this Amendment embodies the entire
agreement and understanding between the Company and the Banks with respect to
the subject matter hereof and supersedes all prior agreements, consents and
understandings relating to such subject matter.
9. This Amendment shall be binding upon and inure to the benefit of the
Banks and their successors and assigns and the Company and its permitted
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to Fourth Amended and Restated Committed Facility Letter to be duly executed and
delivered by their duly authorized officers as of the day and year first above
written.
THE COMPANY: ALLETE, INC., a Minnesota corporation
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By: /s/ Mark A. Schober
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Name: Mark A. Schober
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Title: Sr. Vice President & CFO
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AGENT/BANKS: LASALLE BANK NATIONAL
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as a Bank and as Agent
By: /s/ Meghan Schultz
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Name: Meghan Schultz
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Title: Assistant Vice President
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SIGNATURE PAGE
SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED COMMITTED FACILITY LETTER
DECEMBER 14, 2006
OTHER BANKS:
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U.S. BANK NATIONAL ASSOCIATION
By: /s/ Christine G. Dean
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Name: Christine G. Dean
Title: Vice President
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By: /s/ Patrick McCue
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Name: Patrick McCue
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Title: Vice President
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JPMORGAN CHASE BANK, N.A.
By: /s/ Nancy R. Barwig
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Name: Nancy R. Barwig
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Title: Vice President
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THE BANK OF TOKYO -
MITSUBISHI, UFJ, LTD., CHICAGO
BRANCH
By: /s/ Matthew A. Ross
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Name: Matthew A. Ross
Title: Vice President & Manager
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