exv10w21



 





Exhibit 10.21




EXECUTION COPY




CREDIT AGREEMENT




Dated as of June 5, 2007




among




PACTIV CORPORATION

as the Borrower,




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Administrative Agent,




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as the L/C Issuer,




and




The Other Lenders Party Hereto




J.P. MORGAN SECURITIES INC.,

as

Sole Lead Arranger and Bookrunner





 









 








	 	 	 	 	 	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	 
	1.01
	 	Defined Terms	 	 	1	 
	1.02
	 	Other Interpretive Provisions	 	 	16	 
	1.03
	 	Accounting Terms	 	 	17	 
	1.04
	 	Rounding	 	 	17	 
	1.05
	 	References to Agreements and Laws	 	 	18	 
	1.06
	 	Times of Day	 	 	18	 
	1.07
	 	Letter of Credit Amounts	 	 	18	 
	1.08
	 	Accounting for Acquisitions and Dispositions	 	 	18	 
	 
	 	 	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS	 	 	19	 
	 
	 	 	 	 	 	 
	2.01
	 	Loans	 	 	19	 
	2.02
	 	Borrowings, Conversions and Continuations of Loans	 	 	19	 
	2.03
	 	Letters of Credit	 	 	20	 
	2.04
	 	Voluntary Prepayments	 	 	27	 
	2.05
	 	[Intentionally Omitted]	 	 	28	 
	2.06
	 	Termination or Reduction of Commitments	 	 	28	 
	2.07
	 	Repayment of Loans	 	 	28	 
	2.08
	 	Interest	 	 	28	 
	2.09
	 	Fees	 	 	29	 
	2.10
	 	Computation of Interest and Fees	 	 	29	 
	2.11
	 	Evidence of Debt	 	 	29	 
	2.12
	 	Payments Generally	 	 	30	 
	2.13
	 	Sharing of Payments	 	 	31	 
	 
	 	 	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	32	 
	 
	 	 	 	 	 	 
	3.01
	 	Taxes	 	 	32	 
	3.02
	 	Illegality	 	 	34	 
	3.03
	 	Inability to Determine Rates	 	 	34	 
	3.04
	 	Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans	 	 	34	 
	3.05
	 	Compensation for Losses	 	 	35	 
	3.06
	 	Matters Applicable to all Requests for Compensation	 	 	36	 
	3.07
	 	Mitigation Obligations; Replacement of Lenders	 	 	36	 
	3.08
	 	Survival	 	 	36	 
	 
	 	 	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	 	37	 
	 
	 	 	 	 	 	 
	4.01
	 	Conditions of Initial Credit Extension	 	 	37	 
	4.02
	 	Conditions to all Credit Extensions	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES	 	 	38	 
	 
	 	 	 	 	 	 
	5.01
	 	Existence, Qualification and Power; Compliance with Laws	 	 	39	 
	







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	5.02
	 	Authorization; No Contravention	 	 	39	 
	5.03
	 	Governmental Authorization; Other Consents	 	 	39	 
	5.04
	 	Binding Effect	 	 	39	 
	5.05
	 	Litigation	 	 	39	 
	5.06
	 	No Default	 	 	40	 
	5.07
	 	ERISA Compliance	 	 	40	 
	5.08
	 	Use of Proceeds; Margin Regulations	 	 	40	 
	5.09
	 	Ownership of Property; Liens	 	 	41	 
	5.10
	 	Taxes	 	 	41	 
	5.11
	 	Financial Statements; No Material Adverse Effect	 	 	41	 
	5.12
	 	Environmental Compliance	 	 	41	 
	5.13
	 	Regulated Entities	 	 	41	 
	5.14
	 	No Burdensome Restrictions	 	 	42	 
	5.15
	 	Insurance	 	 	42	 
	5.16
	 	Disclosure	 	 	42	 
	 
	 	 	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS	 	 	42	 
	 
	 	 	 	 	 	 
	6.01
	 	Financial Statements	 	 	42	 
	6.02
	 	Certificates; Other Information	 	 	43	 
	6.03
	 	Notices	 	 	44	 
	6.04
	 	Preservation of Corporate Existence, Etc	 	 	45	 
	6.05
	 	Maintenance of Property	 	 	45	 
	6.06
	 	Maintenance of Insurance	 	 	45	 
	6.07
	 	Payment of Taxes	 	 	45	 
	6.08
	 	Compliance with Laws	 	 	45	 
	6.09
	 	Compliance with ERISA	 	 	46	 
	6.10
	 	Books and Records and Inspection Rights	 	 	46	 
	6.11
	 	Environmental Laws	 	 	46	 
	6.12
	 	Use of Proceeds	 	 	46	 
	6.13
	 	Change in Business	 	 	46	 
	 
	 	 	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS	 	 	46	 
	 
	 	 	 	 	 	 
	7.01
	 	Financial Condition Covenants	 	 	46	 
	7.02
	 	Liens	 	 	47	 
	7.03
	 	Restrictions on Subsidiaries	 	 	48	 
	7.04
	 	Consolidation, Mergers and Sales of Assets	 	 	49	 
	7.05
	 	Limitation on Subsidiary Indebtedness	 	 	49	 
	7.06
	 	Transactions with Affiliates	 	 	49	 
	7.07
	 	Use of Proceeds	 	 	49	 
	7.08
	 	ERISA	 	 	49	 
	7.09
	 	Securitization Transactions	 	 	50	 
	 
	 	 	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES	 	 	50	 
	 
	 	 	 	 	 	 
	8.01
	 	Events of Default	 	 	50	 
	







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	8.02
	 	Remedies Upon Event of Default	 	 	52	 
	8.03
	 	Application of Funds	 	 	52	 
	 
	 	 	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT	 	 	53	 
	 
	 	 	 	 	 	 
	9.01
	 	Appointment and Authorization of Administrative Agent	 	 	53	 
	9.02
	 	Delegation of Duties	 	 	54	 
	9.03
	 	Liability of Administrative Agent	 	 	54	 
	9.04
	 	Reliance by Administrative Agent	 	 	54	 
	9.05
	 	Notice of Default	 	 	55	 
	9.06
	 	Credit Decision; Disclosure of Information by Administrative Agent	 	 	55	 
	9.07
	 	Indemnification of Administrative Agent	 	 	56	 
	9.08
	 	Individual Capacities	 	 	56	 
	9.09
	 	Successor Administrative Agent	 	 	56	 
	9.10
	 	Administrative Agent May File Proofs of Claim	 	 	57	 
	9.11
	 	Other Agents; Arrangers and Managers	 	 	58	 
	 
	 	 	 	 	 	 
	ARTICLE X. MISCELLANEOUS	 	 	58	 
	 
	 	 	 	 	 	 
	10.01
	 	Amendments, Etc	 	 	58	 
	10.02
	 	Notices and Other Communications; Facsimile Copies	 	 	59	 
	10.03
	 	No Waiver; Cumulative Remedies	 	 	60	 
	10.04
	 	Attorney Costs, Expenses and Taxes	 	 	61	 
	10.05
	 	Indemnification by the Borrower	 	 	61	 
	10.06
	 	Payments Set Aside	 	 	62	 
	10.07
	 	Successors and Assigns	 	 	62	 
	10.08
	 	Confidentiality	 	 	66	 
	10.09
	 	Set-off	 	 	66	 
	10.10
	 	Interest Rate Limitation	 	 	67	 
	10.11
	 	Counterparts	 	 	67	 
	10.12
	 	Integration	 	 	67	 
	10.13
	 	Survival of Representations and Warranties	 	 	67	 
	10.14
	 	Severability	 	 	67	 
	10.15
	 	Tax Forms	 	 	68	 
	10.16
	 	Replacement of Lenders	 	 	69	 
	10.17
	 	Governing Law	 	 	70	 
	10.18
	 	Waiver of Right to Trial by Jury	 	 	70	 
	10.19
	 	USA PATRIOT Act Notice	 	 	71	 
	10.20
	 	No Advisory or Fiduciary Responsibility	 	 	71	 
	






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	SCHEDULES
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	2.01
	 	Commitments and Pro Rata Shares	 	 	 	 
	5.12
	 	Environmental Matters	 	 	 	 
	7.02
	 	Existing Liens	 	 	 	 
	10.02
	 	Administrative Agent’s Office, Certain Addresses for Notices	 	 	 	 
	 
	EXHIBITS
	 	 	 	 	 	 
	 
	 	Form of	 	 	 	 
	 
	 	 	 	 	 	 
	A
	 	Loan Notice	 	 	 	 
	B
	 	Note	 	 	 	 
	C
	 	Compliance Certificate	 	 	 	 
	D
	 	Assignment and Assumption	 	 	 	 
	E-1
	 	Opinion of Mayer, Brown, Rowe & Maw, LLP	 	 	 	 
	E-2
	 	Opinion of the General Counsel of the Borrower	 	 	 	 
	F
	 	Letter of Credit Information Report	 	 	 	 
	G
	 	Form of Letter of Credit Application	 	 	 	 
	







v









 






CREDIT AGREEMENT




          This CREDIT AGREEMENT (“Agreement”) is entered into as of June 5, 2007, among PACTIV
CORPORATION, a Delaware corporation (the “Borrower”), each lender from time to time party
hereto (collectively, the “Lenders” and individually, a “Lender”), and JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent and L/C Issuer.




          The Borrower has requested that the Lenders provide a credit facility, with a letter of credit
subfacility, and the Lenders are willing to do so on the terms and conditions set forth herein.




          In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:




ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



          “Acquisition” means any transaction or series of related transactions for the purpose
of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the
assets of a Person, or of all or substantially all of any business or division of a Person, (b) the
acquisition of in excess of 50% of the capital stock, partnership interests, membership interests
or other equity interests of any Person, or otherwise causing any Person to become a Subsidiary, or
(c) a merger or consolidation or any other combination with another Person (other than a Person
that is a Subsidiary) provided that the Borrower or a Subsidiary is the surviving entity.




          “Administrative Agent” means JPMCB in its capacity as administrative agent under any
of the Loan Documents, or any successor administrative agent.




          “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify the Borrower and the Lenders.




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




          “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified. “Control” means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have meanings correlative thereto. Without limiting the generality of the
foregoing, a Person shall be deemed to be Controlled by another Person if such other Person
possesses, directly or indirectly, power to vote 10% or more of the securities having ordinary
voting power for the election of directors, managing general partners or the equivalent.




1









 





          “Agent-Related Persons” means the Administrative Agent, together with its Affiliates
(including, in the case of JPMCB in its capacity as the Administrative Agent, JPMorgan), and the
officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.




          “Aggregate Commitments” means the Commitments of all the Lenders.




          “Agreement” means this Credit Agreement.




          “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Debt Rating as set forth below:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Eurodollar
	 	 	 	 	 	 	Rate and
	Pricing	 	Debt Ratings	 	Letters of
	 Level	 	S&P/Moody’s	 	Credit
	1
	 	A-/A3 or better	 	 	0.350	%
	2
	 	BBB+/Baa1	 	 	0.450	%
	3
	 	BBB/Baa2	 	 	0.550	%
	4
	 	BBB-/Baa3	 	 	0.650	%
	5
	 	Below BBB-/Baa3	 	 	0.750	%






          “Debt Rating” means, as of any date of determination, the rating as determined by
either S&P or Moody’s (collectively, the “Debt Ratings”) of the Borrower’s
non-credit-enhanced, senior unsecured long-term debt; provided that if a Debt Rating is
issued by each of the foregoing rating agencies, then the higher of such Debt Ratings shall apply
(with the Debt Rating for Pricing Level 1 being the highest and the Debt Rating for Pricing Level 5
being the lowest), unless there is a split in Debt Ratings of more than one level, in which case
the Pricing Level that is one level lower than the Pricing Level of the higher Debt Rating shall
apply.




          Initially, the Applicable Rate shall be determined based upon the Debt Ratings specified in
the certificate delivered pursuant to Section 4.01(a)(vii). Thereafter, each change in the
Applicable Rate resulting from a publicly announced change in any Debt Rating shall be effective
during the period commencing on the date of the public announcement thereof and ending on the date
immediately preceding the effective date of the next such change. Pricing Level 5 shall apply
during any period in which both S&P and Moody’s have ceased or suspended issuing Debt Ratings of
the Borrower’s non-credit-enhanced, senior unsecured long-term debt.




          “Arranger” means JPMorgan, in its capacity as sole lead arranger and bookrunner.




          “Assignment and Assumption” means an Assignment and Assumption substantially in the
form of Exhibit D.




          “Attorney Costs” means and includes all reasonable fees and disbursements of any law
firm or other external counsel.


2









 







           “Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a Capital Lease.




          “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended December 31, 2006, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.




          “Availability Period” means the period from the Closing Date to the earliest of (a)
the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section
2.06, and (c) the date of termination of the commitment of each Lender to make Loans and of the
obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.




          “Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as
publicly announced from time to time by JPMCB as its “prime rate.” The “prime rate” is a rate set
by JPMCB based upon various factors including JPMCB’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in such rate announced by JPMCB shall
take effect at the opening of business on the day specified in the public announcement of such
change.




          “Base Rate Loan” means a Loan that bears interest based on the Base Rate.




          “Bond Issuance Date” means the first date to occur after the Closing Date on which the
Borrower or any Subsidiary thereof consummates any bond or note offering or other issuance of
Indebtedness or enters into a credit facility or any other capital markets transaction, including,
without limitation, the Borrower’s proposed issuance of approximately $500,000,000 of Indebtedness
that is expected to occur no later than June 30, 2007; provided, however, that
extensions of credit under the Existing Credit Agreement shall not give rise to the Bond Issuance
Date.




          “Borrower” has the meaning specified in the introductory paragraph hereto.




          “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and,
in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders
pursuant to Section 2.01.




          “Business Day” means (a) any day other than a Saturday, Sunday, a standard holiday of
the Federal Reserve System or any other day on which commercial banks are authorized to close under
the Laws of, or are in fact closed in, the State of Illinois or the state where the Administrative
Agent’s Office is located and (b) if such day relates to any Eurodollar Rate Loan, any such day on
which dealings in Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.




3









 








          “Capital Lease” means, with respect to any Person, any lease of (or other agreement
conveying the right to use) any real or personal property by such Person that, in conformity with
GAAP, is accounted for as a capital lease on the balance sheet of such Person.




          “Cash Collateralize” has the meaning specified in Section 2.03(g).




          “Change of Control” means that (a) any Person or group (within the meaning of Rule
13d-5 of the SEC under the Exchange Act) shall have beneficial ownership (within the meaning of
Rule 13d-3 promulgated by the SEC) of 30% or more of the Voting Stock of the Borrower or (b) a
majority of the members of the Board of Directors of the Borrower shall cease to be Continuing
Members.




          “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.




          “Code” means the Internal Revenue Code of 1986.




          “Commitment” means, as to each Lender, its obligation to (a) make Loans to the
Borrower pursuant to Section 2.01, and (b) purchase participations in L/C Obligations, in
an aggregate principal amount at any one time outstanding not to exceed the amount set forth
opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant
to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from
time to time in accordance with this Agreement.




          “Compliance Certificate” means a certificate substantially in the form of Exhibit
C.




          “Computation Period” means any period of four consecutive fiscal quarters ending on
the last day of a fiscal quarter.




          “Consolidated EBITDA” means, with respect to the Borrower and its Subsidiaries for any
period, the sum of (a) Consolidated Net Income for such period, plus (b) the sum of the following,
in each case to the extent included in computing such Consolidated Net Income: (i) Consolidated
Interest Expense, plus (ii) taxes on income, plus (iii) amortization, plus (iv) depreciation plus
(v) minority interest expense.




          “Consolidated Interest Expense” means, with respect to any period of computation
thereof, the interest expense of the Borrower and its Subsidiaries, including (i) the amortization
of debt discounts, (ii) the amortization of all fees payable in connection with the incurrence of
Indebtedness to the extent included in interest expense, and (iii) the portion of any lease expense
incurred in connection with Capital Leases or Synthetic Lease Obligations allocable to interest
expense.




          “Consolidated Net Income” means, for any period of computation thereof, the net income
(or loss) of the Borrower and its Subsidiaries on a consolidated basis for such period,
plus (a) to the extent deducted in calculating such net income (or loss), non-recurring
losses and other extraordinary losses of the Borrower and its Subsidiaries reducing such net income
(or increasing such net loss) which do not represent cash items in such period, and minus
(b) the


4









 







following (without duplication) to the extent added or not deducted in calculating such net
income (or loss): (i) non-recurring gains and extraordinary gains increasing net income (or
reducing net loss) which do not represent cash items in such period; and (ii) the amount of any
cash expenditures made during such period related to non-cash, non-recurring losses or non-cash,
extraordinary losses added back to net income under clause (a) above in computing Consolidated Net
Income during any prior period.




          “Consolidated Net Worth” means, at any time, (a) the total assets of the Borrower and
its Subsidiaries which would be shown as assets on a consolidated balance sheet of the Borrower and
its Subsidiaries as of such time prepared in accordance with GAAP, after eliminating all amounts
properly attributable to minority interests, if any, in the stock and surplus of Subsidiaries,
minus (b) the total liabilities of the Borrower and its Subsidiaries which would be shown
as liabilities on a consolidated balance sheet of the Borrower and its Subsidiaries as of such time
prepared in accordance with GAAP.




          “Contingent Obligation” means, as to any Person, any direct or indirect liability of
such Person, whether or not contingent, (a) with respect to any Indebtedness, lease, dividend,
letter of credit or other obligation (the “primary obligations”) of another Person (the “primary
obligor”), including any obligation of such Person (i) to purchase, repurchase or otherwise acquire
such primary obligations or any security therefor, (ii) to advance or provide funds for the payment
or discharge of any such primary obligation, or to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet item,
level of income or financial condition of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary obligation, or
(iv) otherwise to assure or hold harmless the holder of any such primary obligation against loss in
respect thereof (each a “Guaranty Obligation”); (b) with respect to any Surety Instrument
issued for the account of such Person or as to which such Person is otherwise liable for
reimbursement of drawings or payments; or (c) to purchase any materials, supplies or other property
from, or to obtain the services of, another Person if the relevant contract or other related
document or obligation requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials, supplies or other
property is ever made or tendered, or such services are ever performed or tendered. The amount of
any Contingent Obligation shall (x) in the case of Guaranty Obligations, be deemed equal to the
stated or determinable amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum reasonably anticipated
liability in respect thereof, and (y) in the case of other Contingent Obligations, be equal to the
maximum reasonably anticipated liability in respect thereof.




          “Continuing Member” means a member of the Board of Directors of the Borrower who
either (a) was a member of the Borrower’s Board of Directors on the Closing Date and has been such
continuously thereafter or (b) became a member of such Board of Directors after the Closing Date
and whose election or nomination for election was approved by a vote of the majority of the
Continuing Members then members of the Borrower’s Board of Directors.




          “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of


5









 







trust or other document to which such Person is a party or by which it or any of its property
is bound.




          “Control” has the meaning specified in the definition of “Affiliate.”




          “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.




          “Debt Rating” has the meaning specified in the definition of Applicable Rate.




          “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.




          “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.




          “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) 2% per annum; provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate
equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus
2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the
Applicable Rate plus 2% per annum, in all cases to the fullest extent permitted by applicable Laws.




          “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Loans or participations in L/C Obligations required to be funded by it hereunder within one
Business Day of the date required to be funded by it hereunder, unless the amount not funded is the
subject of a good faith dispute and such Lender has otherwise funded all undisputed amounts within
one Business Day of the date when required to be funded by it hereunder, (b) has otherwise failed
to pay over to the Administrative Agent or any other Lender any other amount required to be paid by
it hereunder within one Business Day of the date when due, unless the amount not paid is the
subject of a good faith dispute and such Lender has otherwise paid all undisputed amounts within
one Business Day of the date when due, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.




          “Disposition” means any transaction or series of related transactions for the purpose
of or resulting, directly or indirectly, in (a) the disposition of all or substantially all of the
assets of a Person, or of all or substantially all of any business or division of a Person, (b) the
disposition of in excess of 50% of the capital stock, partnership interests, membership interests
or other equity interests of any Subsidiary, or otherwise causing any Person to cease to be a
Subsidiary, or (c) a merger or consolidation or any other combination with another Person (other
than a Person that is a Subsidiary) if the surviving entity is not the Company or a Subsidiary.




          “Dollar” and “$” mean lawful money of the United States.




6









 








          “Eligible Assignee” has the meaning specified in Section 10.07(g).




          “Environmental Claims” means all written claims, however asserted, by any Governmental
Authority or any other Person alleging potential liability or responsibility for violation of any
Environmental Law or for release to the environment.




          “Environmental Laws” means all Laws, together with all administrative or judicial
orders, directed duties, requests, licenses, authorizations and permits of, and agreements with,
any Governmental Authorities, in each case relating to environmental, health, safety and land use
matters.




          “ERISA” means the Employee Retirement Income Security Act of 1974.




          “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).




          “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.




          “Eurodollar Rate” means, for any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”)
as appears on Page 3750 published by Reuters (or another commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest
Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period. If such rate is not available at such time for any reason,
then the “Eurodollar Rate” for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by JPMCB and with a term equivalent to such Interest Period would be
offered by JPMCB’s London Branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of
such Interest Period.




7









 








          “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate.




          “Event of Default” has the meaning specified in Section 8.01.




          “Exchange Act” means the Securities and Exchange Act of 1934.




          “Existing Credit Agreement” means the Credit Agreement dated as of April 19, 2006, by
and among the Borrower, certain institutions party thereto as lenders, and Bank of America, N.A.,
as Administrative Agent.




          “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to JPMCB on such day on such transactions as determined by the Administrative Agent.




          “Fee Letter” means the letter agreement, dated May 15, 2007, among the Borrower, JPMCB
and JPMorgan.




          “Foreign Lender” has the meaning specified in Section 10.15(a)(i).




          “FRB” means the Board of Governors of the Federal Reserve System of the United States.




          “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board, or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.




          “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government.




          “Granting Lender” has the meaning specified in Section 10.07(h).




          “Guaranty Obligation” has the meaning specified in the definition of Contingent
Obligation.




8









 








          “Indebtedness” of any Person means, without duplication, (a) all indebtedness of such
Person for borrowed money; (b) all obligations of such Person to pay the deferred purchase price of
property or services, except such obligations arising in the ordinary course of business and
maturing less than one year from the date of creation thereof; (c) all non-contingent reimbursement
or payment obligations of such Person with respect to Surety Instruments; (d) all non-contingent
obligations of such Person evidenced by notes, bonds, debentures or similar instruments; (e) all
obligations of such Person with respect to Capital Leases and all Synthetic Lease Obligations; (f)
all indebtedness of any other Person of the types referred to in clauses (a) through
(e) above secured by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and
contracts rights) owned by such Person, even though such Person has not assumed or become liable
for the payment of such indebtedness; provided that the amount of any such Indebtedness
shall be deemed to be the lesser of the face principal amount thereof and the fair market value of
the property subject to such Lien; (g) all indebtedness of the types described in clauses
(a) through (e) above of any partnership or joint venture in which such Person is a
general partner or joint venturer unless expressly non-recourse to such Person; and (h) all
Guaranty Obligations of such Person in respect of Indebtedness of the types described above;
provided that Indebtedness shall not include (i) obligations arising out of the endorsement
of instruments for deposit or collection in the ordinary course of business, (ii) obligations in
respect of Securitization Transactions or (iii) obligations under operating leases (other than
Synthetic Lease Obligations). The amount of any Capital Lease or Synthetic Lease Obligation as of
any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of
such date.




          “Indemnified Liabilities” has the meaning specified in Section 10.05.




          “Indemnitees” has the meaning specified in Section 10.05.




          “Independent Auditor” has the meaning specified in Section 6.01(a).




          “Insolvency Proceeding” means, with respect to any Person, (a) any case, action or
proceeding with respect to such Person or all or any substantial portion of such Person’s property
before any court or Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, conservatorship, dissolution, winding-up or relief of debtors, or (b)
any general assignment for the benefit of creditors, composition, marshalling of assets for
creditors, or other, similar arrangement in respect of its creditors generally or any substantial
portion of its creditors; in each case undertaken under any Debtor Relief Law.




          “Interest Coverage Ratio” means, for any Computation Period, the ratio of (a)
Consolidated EBITDA for such Computation Period to (b) Consolidated Interest Expense for such
Computation Period.




          “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however,
that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates
that fall every three months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June,
September and December and the Maturity Date.




9









 








          “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date seven days, fourteen days, or one, two, three or six months thereafter, as
selected by the Borrower in its Loan Notice; provided that:




          (i) any Interest Period that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless such Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding Business Day;




          (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month at the end of such
Interest Period; and




          (iii) no Interest Period shall extend beyond the Maturity Date.




          “IRS” means the United States Internal Revenue Service.




          “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance).




          “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application and any other document, agreement and instrument entered into between the L/C Issuer
and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter
of Credit.




          “JPMCB” means JPMorgan Chase Bank, National Association and its successors.




          “JPMorgan” means J.P. Morgan Securities Inc. and its successors.




          “Knowledge of the Borrower” means the actual knowledge of any one or more of (a) the
chief executive officer or the president of the Borrower, or any other officer having substantially
the same authority and responsibility, (b) with respect to financial matters, the chief financial
officer or the treasurer of the Borrower, or any other officer having substantially the same
authority and responsibility, and (c) with respect to litigation and Requirements of Law, the
general counsel of the Borrower.




          “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.




10









 








          “L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Pro Rata Share.




          “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.




          “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.




          “L/C Issuer” means JPMCB in its capacity as issuer of Letters of Credit hereunder, or
any successor issuer of Letters of Credit hereunder.




          “L/C Obligations” means, as at any date of determination, the aggregate undrawn amount
of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts,
including all L/C Borrowings. For all purposes of this Agreement, if on any date of determination
a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason
of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding”
in the amount so remaining available to be drawn.




          “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the L/C Issuer.




          “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.




          “Letter of Credit” means any standby letter of credit issued hereunder.




          “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in a form attached hereto as Exhibit G or in such other form as may
be used by the L/C Issuer from time to time.




          “Letter of Credit Fee” has the meaning specified in Section 2.03(i).




          “Letter of Credit Sublimit” means an amount equal to the Aggregate Commitments. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.




          “Lien” means any security interest, mortgage, deed of trust, pledge, hypothecation,
assignment, charge or deposit arrangement, encumbrance, lien (statutory or other) or preferential
arrangement of any kind or nature whatsoever in respect of any property (including those created
by, arising under or evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a Capital Lease, or any financing lease having substantially the same
economic effect as any of the foregoing, but not including the interest of a lessor under an
operating lease).




          “Loan” has the meaning specified in Section 2.01.




11









 








          “Loan Documents” means this Agreement, each Note, each Issuer Document, and the Fee
Letter.




          “Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one
Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.




          “Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X of
the FRB.




          “Material Adverse Effect” means (a) any event or circumstance that has resulted in or
would reasonably be expected to result in a material adverse change in, or has had or would be
reasonably expected to have a material adverse effect upon, the operations, business, properties or
condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of the Borrower to perform its obligations under any Loan
Document; or (c) a material adverse effect upon the legality, validity, binding effect or
enforceability against the Borrower of any Loan Document; provided, however, that
Prairie Packaging, Inc. shall not constitute a Subsidiary for purposes hereof on the Closing Date,
including, without limitation, any representation or warranty in respect of Material Adverse Effect
made on the Closing Date.




          “Material Financial Obligations” means Indebtedness or Contingent Obligations of the
Borrower or any Subsidiary, or obligations of the Borrower or any Subsidiary in respect of any
Securitization Transaction, in an aggregate amount (for all applicable Indebtedness, Contingent
Obligations and obligations in respect of Securitization Transactions, but without duplication)
equal to $50,000,000 or more (including amounts owing to all creditors under any combined or
syndicated credit arrangement).




          “Material Subsidiary” means, at any time, any Subsidiary having at such time either
(i) total (gross) revenues for any Computation Period in excess of 10% of total (gross) revenues
for the Borrower and its Subsidiaries on a consolidated basis or (ii) total assets, as of the last
day of the preceding fiscal quarter, having a net book value in excess of 10% of the assets of the
Borrower and its Subsidiaries on a consolidated basis, in each case, based upon the Borrower’s most
recent consolidated annual or quarterly financial statements delivered to the Lenders and the
Administrative Agent under Section 6.01; provided, however, that
notwithstanding the foregoing, the term “Material Subsidiary” shall mean each of those Subsidiaries
that together with the Borrower and each other Material Subsidiary have assets equal to not less
than 90% of total assets (calculated as described above) and account for not less than 90% of total
revenue (calculated as described above); provided further that if more than one
combination of Subsidiaries satisfies such threshold, then those Subsidiaries that are not
“Material Subsidiaries” shall be those Subsidiaries as may be specified by the Borrower to the
Administrative Agent from time to time in writing as not being “Material Subsidiaries” to the
extent such designation is consistent with the foregoing provisions of this definition.




          “Maturity Date” means the earlier of (x) the Bond Issuance Date and (y) June 4, 2008.




12









 








          “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.




          “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.




          “Non-Consenting Lender” means any Lender that, within the preceding 90 days, failed to
agree to an amendment, waiver or consent that (a) was requested by the Borrower, (b) was approved
by Required Lenders, and (c) also required the approval of such Lender.




          “Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit B.




          “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, the Borrower arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against the Borrower or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding.




          “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.




          “Outstanding Amount” means (i) with respect to Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of Loans occurring on such date; and (ii) with respect to any L/C Obligations on any
date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements of outstanding unpaid
drawings under any Letters of Credit or any reductions in the maximum amount available for drawing
under Letters of Credit taking effect on such date.




          “Participant” has the meaning specified in Section 10.07(d).




          “PBGC” means the Pension Benefit Guaranty Corporation and any entity succeeding to any
of its functions under ERISA.




13









 








          “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.




          “Permitted Liens” has the meaning specified in Section 7.02.




          “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.




          “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate.




          “Prairie Acquisition” means the Acquisition (via merger) of Prairie Packaging, Inc. by
a Wholly-Owned Subsidiary of the Borrower.




          “Prairie Acquisition Funding Period” means the period beginning on the Closing Date
and ending on the earlier to occur of (x) the 10 Business Day anniversary thereof and (y) the date
on which the Availability Period expires.




          “Pro Rata Share” means, with respect to each Lender at any time, a fraction (expressed
as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of
the Commitment of such Lender at such time and the denominator of which is the amount of the
Aggregate Commitments at such time; provided that if the commitment of each Lender to make
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02, then the Pro Rata Share of each Lender shall be determined based
on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect
to any subsequent assignments made pursuant to the terms hereof. The initial Pro Rata Share of
each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.




          “Register” has the meaning specified in Section 10.07(c).




          “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.




          “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Loans, a Loan Notice, and (b) with respect to an L/C Credit Extension, a Letter of
Credit Application.




          “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 50% of the Total


14









 







Outstandings (with the aggregate amount of each Lender’s risk participation and funded
participation in L/C Obligations being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.




          “Requirement of Law” means, as to any Person, any Law applicable to or binding upon
such Person or any of its property or to which such Person or any of its property is subject.




          “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer or assistant treasurer of the Borrower, or in the case of Section 4.01(a), the
secretary or assistant secretary of the Borrower. Any document delivered hereunder that is signed
by a Responsible Officer shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of the Borrower and such Responsible Officer
shall be conclusively presumed to have acted on behalf of the Borrower.




          “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.




          “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.




          “Securitization Transaction” means any sale, assignment or other transfer by the
Borrower or any Subsidiary of accounts receivable, lease receivables or other payment obligations
owing to the Borrower or any Subsidiary or any interest in any of the foregoing, together in each
case with any collections and other proceeds thereof, any collection or deposit accounts related
thereto, and any collateral, guaranties or other property or claims in favor of the Borrower or
such Subsidiary supporting or securing payment by the obligor thereon of, or otherwise related to,
any such receivables; provided, that all payment, repurchase and other obligations with
respect thereto are nonrecourse to the Borrower and its Subsidiaries (other than any special
purpose finance Subsidiary created solely for the purpose thereof and whose activities are limited
to such transactions), other than limited recourse provisions that are customary for transactions
of such type and do not have the effect of Guaranteeing or limiting the loss or credit risk of
lenders or purchasers with respect to payment or performance by the obligors of the receivables or
other payment obligations so transferred.




          “SPC” has the meaning specified in Section 10.07(h).




          “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer
to a Subsidiary or Subsidiaries of the Borrower.




15









 








          “Surety Instruments” means letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, shipside bonds, surety bonds and similar instruments.




          “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).




          “Total Debt” means, at any time, the sum (determined on a consolidated basis and
without duplication) of all Indebtedness of the Borrower and its Subsidiaries.




          “Total Debt to EBITDA Ratio” means, for any Computation Period, the ratio of (a) Total
Debt at the end of such Computation Period to (b) Consolidated EBITDA for such Computation Period.




          “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.




          “Type” means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.




          “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.




          “United States” and “U.S.” mean the United States of America.




          “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).




          “Voting Stock” means, with respect to any Person, any shares of stock or other equity
interests of any class or classes of such Person whose holders are entitled under ordinary
circumstances (irrespective of whether at the time stock or other equity interests of any other
class or classes shall have or might have voting power by reason of the happening of any
contingency) to vote for the election of a majority of the directors, managers, trustees or other
governing body of such Person.




          “Wholly-Owned Subsidiary” means any Subsidiary in which (other than directors’
qualifying shares required by law) 100% of the capital stock, membership interests or other equity
interests of each class having ordinary voting power, and 100% of the capital stock, membership
interests or other equity interests of every other class, in each case, at the time as of which any
determination is being made, is owned, beneficially and of record, by the Borrower, or by one or
more of the other Wholly-Owned Subsidiaries, or both.




     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



16









 





     (a) The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.



     (b) (i) The words “herein,” “hereto,” “hereof” and “hereunder”
and words of similar import when used in any Loan Document shall refer to such Loan Document as a
whole and not to any particular provision thereof.




     (ii) Article, Section, Exhibit and Schedule references are to the Loan Document in
which such reference appears.




     (iii) The term “including” is by way of example and not limitation.




     (iv) The term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.



     (c) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including”; the words “to” and “until”
each mean “to but excluding”; and the word “through” means “to and
including.”



     (d) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



     1.03 Accounting Terms. (a) All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time,
applied in a manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein.



     (b) If at any time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall
so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior
to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the
Lenders financial statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.



     1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



17









 





     1.05 References to Agreements and Laws. Unless otherwise expressly provided herein, (a)
references to Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are not prohibited by any
Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.



     1.06 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).



     1.07 Letter of Credit Amounts. Unless otherwise specified, all references herein to the
amount of a Letter of Credit at any time shall be deemed to mean the maximum face amount of such
Letter of Credit after giving effect to all increases thereof contemplated by such Letter of Credit
or the Issuer Documents related thereto, whether or not such maximum face amount is in effect at
such time.



     1.08 Accounting for Acquisitions and Dispositions. With respect to any Acquisition or
Disposition consummated on or after the Closing Date, the following shall apply:



     (a) For each Computation Period following the date of any Acquisition, Consolidated EBITDA
shall include the results of operations of the Person or assets so acquired on a historical pro
forma basis, and which amounts may include such adjustments as are permitted under Regulation S-X
of the SEC and reasonably satisfactory to the Administrative Agent.



     (b) For each Computation Period following the date of any Acquisition, Consolidated Interest
Expense shall include the results of operations of the Person or assets so acquired, which amounts
shall be determined on a historical pro forma basis; provided, that, Consolidated Interest
Expense shall be adjusted on a historical pro forma basis to (i) eliminate interest expense accrued
during such period on any Indebtedness repaid in connection with such Acquisition and (ii) include
interest expense on any Indebtedness (including Indebtedness hereunder) incurred, acquired or
assumed in connection with such Acquisition (“Incremental Debt”) calculated (x) as if all
such Incremental Debt had been incurred as of the first day of such Computation Period and (y) at
the following interest rates: (I) for all periods subsequent to the date of the Acquisition and for
Incremental Debt assumed or acquired in the Acquisition and in effect prior to the date of
Acquisition, at the actual rates of interest applicable thereto, and (II) for all periods prior to
the actual incurrence of such Incremental Debt, equal to the average daily rate of interest
actually applicable to such Incremental Debt hereunder or under other financing documents
applicable thereto.



     (c) For each Computation Period following the date of any Disposition, Consolidated EBITDA
shall exclude the results of operations of the Person or assets so disposed of as if such
Disposition occurred on the first day of such Computation Period.



     (d) For each Computation Period following the date of any Disposition, Consolidated Interest
Expense shall exclude the results of operations of the Person or assets so disposed of as




18










 




if such Disposition occurred on the first day of such Computation Period; provided, that, Consolidated Interest Expense shall be adjusted on a historical pro forma basis to eliminate interest expense accrued during such period on any Indebtedness repaid in connection with such Disposition.




ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Loans. Subject to the terms and conditions set forth herein, each Lender severally
agrees to make loans (each such loan, a “Loan”) to the Borrower from time to time, on any
Business Day during the Prairie Acquisition Funding Period, in an aggregate amount not to exceed at
any time outstanding the amount of such Lender’s Commitment; provided, however, that after giving
effect to any Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and
(ii) the aggregate Outstanding Amount of the Loans of any Lender, plus such Lender’s Pro
Rata Share of the Outstanding Amount of all L/C Obligations shall not exceed such Lender’s
Commitment. All Loans made hereunder shall be term loans. Other than with respect to mandatory
prepayments required hereby or payments due at the end of the Availability Period, there shall be
no scheduled principal payments for the Loans. As described in Section 2.03, all
Unreimbursed Amounts and other similar amounts owing in respect of Letters of Credit shall be
automatically converted into outstanding Loans and the Lenders shall automatically extend and hold
their Pro Rata Shares of such Loans. No Loans or Letters of Credit shall be extended or issued
after the Prairie Acquisition Funding Period expires, and the Commitments, for purposes of
extending Loans or issuing Letters of Credit, shall expire at the end of the Prairie Acquisition
Funding Period. No amount may be reborrowed hereunder once repaid.



     2.02 Borrowings, Conversions and Continuations of Loans.



     (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:30 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base
Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof. Except as provided in Section 2.03(c), each
Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Each Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to
the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal
amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to
which existing Loans are to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto. If the Borrower fails to



19









 




specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be made as, or converted
to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate
Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.




     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Pro Rata Share of the applicable Loans, and if no timely notice of a
conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each
Lender of the details of any automatic conversion to Base Rate Loans described in the preceding
subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan available to
the Administrative Agent in immediately available funds at the Administrative Agent’s Office not
later than 1:30 p.m. on the Business Day specified in the applicable Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing
is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all
funds so received available to the Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of the Borrower on the books of JPMCB with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to
(and reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that
if, on the date the Loan Notice with respect to such Borrowing is given by the Borrower, there are
L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to
the payment in full of any such L/C Borrowings and, second, shall be made available to the
Borrower as provided above.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Required Lenders.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in JPMCB’s prime rate
used in determining the Base Rate promptly following the public announcement of such change.



     (e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than 3 Interest
Periods in effect with respect to Loans.



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitment.



20









 






     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees,
in reliance upon the agreements of the other Lenders set forth in this Section 2.03,
(1) from time to time on any Business Day during the Prairie Acquisition Funding Period, to
issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or
extend Letters of Credit previously issued by it, in accordance with subsection (b) below,
in each case in partial or total satisfaction of the consideration for the Prairie
Acquisition and (2) to honor drawings under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the account of the Borrower
or its Subsidiaries and any drawings thereunder; provided that after giving effect
to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings
shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the
Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C
Obligations shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the
L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the
Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrower that the L/C Credit Extension so requested complies with the
conditions set forth in the proviso to the preceding sentence. Within the foregoing limits,
and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the Prairie
Acquisition Funding Period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed. All Unreimbursed Amounts and other
similar amounts owing in respect of outstanding Letters of Credit shall be automatically
converted into term loans, which Loans shall be governed by the provisions of this
Agreement. The Lenders shall hold their Pro Rata Shares of such Loans and the proceeds
thereof shall repay the obligations owing to the L/C Issuer immediately prior to such
conversion.




     (ii) The L/C Issuer shall not issue any Letter of Credit if the expiry date of such
requested Letter of Credit would occur after the Prairie Acquisition Funding Period expires.




     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or such Letter of Credit
in particular or shall impose upon the L/C Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the L/C Issuer is
not otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good faith deems material
to it;



21









 






     (B) the issuance of such Letter of Credit would violate any Laws or one or more
policies of the L/C Issuer;




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial face amount less than $100,000;




     (D) such Letter of Credit is to be denominated in a currency other than
Dollars;




     (E) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder; or




     (F) a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the Borrower or such Lender
to eliminate the L/C Issuer’s risk with respect to such Lender.




     (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.




     (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.



     (b) Procedures for Issuance and Amendment of Letters of Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer. Such Letter of Credit Application must be received by the L/C Issuer
and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such
later date and time as the Administrative Agent and the L/C Issuer may agree in a particular
instance in their sole discretion) prior to the proposed issuance date or date of amendment,
as the case may be. In the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address
of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of
any drawing thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer
may require. In the case of a request for an amendment of any outstanding Letter of Credit,
such Letter of Credit Application shall specify in form and detail satisfactory to the L/C
Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the L/C Issuer may require. Additionally, the Borrower shall furnish to
the L/C Issuer and the Administrative Agent



22









 






such other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Lender, the Administrative Agent or the
Borrower, at least one Business Day prior to the requested date of issuance or amendment of
the applicable Letter of Credit, that one or more applicable conditions contained in
Article IV shall not then be satisfied, then, subject to the terms and conditions
hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of the Borrower (or the applicable Subsidiary) or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and
customary business practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the
product of such Lender’s Pro Rata Share times the amount of such Letter of Credit.




     (iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower
may elect to reimburse the L/C Issuer through the Administrative Agent in an amount equal to
the amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such
time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the
amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of
such Lender’s Pro Rata Share thereof. In such event, the Borrower shall be deemed to have
requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans and without regard to the
conditions set forth in Section 4.02, but subject to the amount of the unutilized
portion of the Aggregate Commitments. All Loans subject to such Borrowing shall be term
loans and, to the extent repaid, may not be reborrowed. Any notice given by the L/C Issuer
or the Administrative Agent pursuant to this 

Section 2.03(c)(i) may be given by
telephone if immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of such notice.



23









 






     (ii) Each Lender (including the Lender acting as L/C Issuer) shall upon any notice
pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for
the account of the L/C Issuer at the Administrative Agent’s Office in an amount equal to its
Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon, subject to the provisions
of Section 2.03(c)(iii), each Lender that so makes funds available shall be deemed
to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent
shall remit the funds so received to the L/C Issuer.




     (iii) [Intentionally Omitted].




     (iv) Until each Lender funds its Loan or L/C Advance pursuant to this Section
2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Pro Rata Share of such amount shall be solely for the
account of the L/C Issuer.




     (v) Each Lender’s obligation to make Loans or L/C Advances to reimburse the L/C Issuer
for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any circumstance, including
(A) any set-off, counterclaim, recoupment, defense or other right which such Lender may have
against the L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing. No such making of an L/C Advance shall
relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for
the amount of any payment made by the L/C Issuer under any Letter of Credit, together with
interest as provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the Federal Funds Rate
from time to time in effect. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this clause (vi)
shall be conclusive absent manifest error.



     (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the
account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Pro Rata Share thereof (appropriately adjusted, in the



24









 




case of interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) in the same funds as those received by the Administrative Agent.





     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.06 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Pro Rata Share thereof on demand
of the Administrative Agent, plus interest thereon from the date of such demand to the date
such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate
from time to time in effect.



     (e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




     (ii) the existence of any claim, counterclaim, set-off, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or




     (v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary.



          The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with





25









 







the Borrower’s instructions or other irregularity, the Borrower will immediately notify the
L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the
L/C Issuer and its correspondents unless such notice is given as aforesaid.




     (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, any
Agent-Related Person nor any of the respective correspondents, participants or assignees of the L/C
Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at
the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or instrument related to any
Letter of Credit or Letter of Credit Application. The Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not, preclude the Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. None of the L/C Issuer, any Agent-Related Person, nor any of the
respective correspondents, participants or assignees of the L/C Issuer, shall be liable or
responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may
have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C Issuer’s willful
misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any notice or information to
the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.



     (g) Cash Collateral. Sections 2.05 and 8.02(c) set forth certain
requirements to deliver Cash Collateral in respect of Letters of Credit hereunder. For purposes of
Section 2.05 and Section 8.02(c), “Cash Collateralize” means to pledge and
deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders). Derivatives of such term have
corresponding meanings. The Borrower hereby grants to the Administrative Agent, for the benefit of
the L/C Issuer and the Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, interest bearing deposit accounts at JPMCB.



26









 





     (h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of
Credit.



     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share a Letter of Credit fee (the
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the daily maximum amount available to be drawn under such Letter of Credit (whether
or not such maximum amount is then in effect under such Letter of Credit). Letter of Credit Fees
shall be due and payable on the last day of the Prairie Acquisition Funding Period, and thereafter
on demand. If there is any change in the Applicable Rate, the daily maximum amount of each Letter
of Credit shall be computed and multiplied by the Applicable Rate separately for each period that
such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein,
while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to each L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit issued or deemed issued by it in an amount mutually agreed to by the Borrower
and such L/C Issuer, payable on the actual daily maximum amount available to be drawn under such
Letter of Credit (whether or not such maximum amount is then in effect under such Letter of
Credit). Such fronting fee shall be due and payable as and when agreed by the Borrower and the
applicable L/C Issuer, and thereafter on demand. In addition, the Borrower shall pay directly to
the L/C Issuer for its own account the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of
credit as from time to time in effect. Such customary fees and standard costs and charges are due
and payable on demand and are nonrefundable.



     (k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.



     (l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and
all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that
the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.



     (m) Reporting of Letter of Credit Information. On each date that an L/C Credit
Extension occurs with respect to any Letter of Credit, the L/C Issuer shall deliver to the
Administrative Agent a report in the form of Exhibit F hereto, appropriately completed with
the information for every Letter of Credit issued by the L/C Issuer that is outstanding hereunder.



     2.04 Voluntary Prepayments. The Borrower may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty;
provided that (i) such notice must be received by the Administrative Agent not later than
11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B)
on the date of prepayment of Base Rate Loans; (ii) any prepayment of



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Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, in the case of Base Rate
Loans resulting from a Borrowing under Section 2.03(c), such lesser amount as will reduce the
aggregate amount of outstanding Base Rate Loans to a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof) or, in each case, if less, the entire principal amount
thereof then outstanding. Each such notice shall specify the date and amount of such prepayment
and the Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify each Lender
of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of such
prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest thereon,
together with any additional amounts required pursuant to Section 3.05. Each such
prepayment shall be applied to the Loans of the Lenders in accordance with their respective Pro
Rata Shares.




     2.05 [Intentionally Omitted].



     2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:30 a.m. on the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of
$1,000,000 in excess thereof, and (iii) the Borrower shall not terminate or reduce the Aggregate
Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total
Outstandings would exceed the Aggregate Commitments. The Administrative Agent will promptly notify
the Lenders of any such notice of termination or reduction of the Aggregate Commitments. Any
reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according
to its Pro Rata Share. All fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination. Notwithstanding the
foregoing, at the end of the Prairie Acquisition Funding Period and the conversion of all
Unreimbursed Amounts into term loans as contemplated by Sections 2.01 and 2.03(a), any
remaining unfunded Commitments shall be terminated and no further Loans shall be extended.



     2.07 Repayment of Loans. The Borrower shall repay to each Lender on the Maturity Date
applicable to such Lender the aggregate principal amount of Loans of such Lender outstanding on
such date.



     2.08 Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; and (ii) each
Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate.



28









 





     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.




     (ii) If any amount (other than principal of any Loan) payable by the Borrower under any
Loan Document is not paid when due (without regard to any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, then upon the request of the Required
Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder
at a fluctuating interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.




     (iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



     2.09 Fees. In addition to certain fees described in subsections (i) and (j) of Section
2.03, the Borrower shall pay to the Arranger and the Administrative Agent for their own
respective accounts fees in the amounts and at the times specified in the Fee Letter. Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever. The
Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in
the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not
be refundable for any reason whatsoever.



     2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans when
the Base Rate is determined by JPMCB’s “prime rate” shall be made on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed. All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or
interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid, provided that
any Loan that is repaid on the same day on which it is made shall, subject to Section
2.12(a), bear interest for one day.



     2.11 Evidence of Debt.



     (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary



29









 




course of business. The accounts or records maintained by the Administrative Agent and each
Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the
Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts
or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.




     (b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit. In the
event of any conflict between the accounts and records maintained by the Administrative Agent and
the accounts and records of any Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.



     2.12 Payments Generally.



     (a) All payments to be made by the Borrower shall be made without condition or deduction for
any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein,
all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.
The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other
applicable share as provided herein) of such payment in like funds as received by wire transfer to
such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m.
shall be deemed received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue.



     (b) If any payment to be made by the Borrower shall come due on a day other than a Business
Day, payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.



     (c) Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date
any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower
or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume
that the Borrower or such Lender, as the case may be, has timely made such payment and may (but
shall not be so required to), in reliance thereon, make available a corresponding amount to the
Person entitled thereto. If and to the extent that such payment was not in fact made to the
Administrative Agent in immediately available funds, then:



30









 






     (i) if the Borrower failed to make such payment, each Lender shall forthwith on demand
repay to the Administrative Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, together with interest thereon in
respect of each day from the date such amount was made available by the Administrative Agent
to such Lender to the date such amount is repaid to the Administrative Agent in immediately
available funds at the Federal Funds Rate from time to time in effect; and




     (ii) if any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Administrative Agent the amount thereof in immediately available funds, together
with interest thereon for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is recovered by the
Administrative Agent (the “Compensation Period”) at a rate per annum equal to the
Federal Funds Rate from time to time in effect. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan included in the
applicable Borrowing. If such Lender does not pay such amount forthwith upon the
Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor
upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent,
together with interest thereon for the Compensation Period at a rate per annum equal to the
rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights
which the Administrative Agent or the Borrower may have against any Lender as a result of
any default by such Lender hereunder.



     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (c) shall be conclusive, absent manifest error.



     (d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by
such Lender as provided in the foregoing provisions of this Article II, and such funds are
not made available to the Borrower by the Administrative Agent because the conditions to the
applicable Credit Extension set forth in Article IV are not satisfied or waived in
accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds
as received from such Lender) to such Lender, without interest.



     (e) The obligations of the Lenders hereunder to make Loans and to fund participations in
Letters of Credit are several and not joint. The failure of any Lender to make any Loan or to fund
any such participation on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be responsible for the failure
of any other Lender to so make its Loan or purchase its participation.



     (f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in
any particular place or manner or to constitute a representation by any Lender that it has obtained
or will obtain the funds for any Loan in any particular place or manner.



     2.13 Sharing of Payments. If, other than as expressly provided elsewhere herein, any Lender
shall obtain on account of the Loans made by it, or the participations in L/C Obligations



31









 




held by it, any payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share contemplated hereunder)
thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b)
purchase from the other Lenders such participations in the Loans made by them and/or such
subparticipations in the participations in L/C Obligations held by them, as the case may be, as
shall be necessary to cause such purchasing Lender to share the excess payment in respect of such
Loans or such participations, as the case may be, pro rata with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from the purchasing
Lender under any of the circumstances described in Section 10.06 (including pursuant to any
settlement entered into by the purchasing Lender in its discretion), such purchase shall to that
extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price
paid therefor, together with an amount equal to such paying Lender’s ratable share (according to
the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total
amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered, without further interest
thereon. The Borrower agrees that any Lender so purchasing a participation from another Lender
may, to the fullest extent permitted by law, exercise all its rights of payment (including the
right of set-off, but subject to Section 10.09) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and binding in the absence of
manifest error) of participations purchased under this Section and will in each case notify the
Lenders following any such purchases or repayments. Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right to give all notices,
requests, demands, directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing Lender were the
original owner of the Obligations purchased.




ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Any and all payments by the Borrower to or for the account of the Administrative Agent or
any Lender under any Loan Document shall be made free and clear of and without deduction for any
and all present or future taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and all liabilities with respect thereto, excluding, in
the case of the Administrative Agent and each Lender, taxes imposed on or measured by its overall
net income, and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which the Administrative Agent or such
Lender, as the case may be, is organized or maintains a lending office (all such non-excluded
taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as “Taxes”). If the Borrower shall be required
by any Laws to deduct any Taxes from or in respect of any sum payable under any Loan Document to
the Administrative Agent or any Lender, (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to additional sums payable
under this Section), each of the Administrative Agent and such Lender receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the



32









 




Borrower shall make such deductions, (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable Laws, and (iv)
within 30 days after the date of such payment, the Borrower shall furnish to the Administrative
Agent (which shall forward the same to such Lender) the original or a certified copy of a receipt
evidencing payment thereof.




     (b) In addition, the Borrower agrees to pay any and all present or future stamp, court or
documentary taxes and any other excise or property taxes or charges or similar levies which arise
from any payment made under any Loan Document or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as “Other Taxes”).



     (c) If the Borrower shall be required to deduct or pay any Taxes or Other Taxes from or in
respect of any sum payable under any Loan Document to the Administrative Agent or any Lender, the
Borrower shall also pay to the Administrative Agent or to such Lender, as the case may be, at the
time interest is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all taxes, including
taxes imposed on or measured by net income) that the Administrative Agent or such Lender would have
received if such Taxes or Other Taxes had not been imposed.



     (d) The Borrower agrees to indemnify the Administrative Agent and each Lender for (i) the full
amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by the Administrative Agent and such
Lender, (ii) amounts payable under Section 3.01(c) and (iii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or with respect thereto, in
each case whether or not such Taxes or Other Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority. Payment under this subsection (d) shall be made within 30
days after the date the Lender or the Administrative Agent makes a demand therefor.



     (e) If any Lender determines, in its sole discretion, that it has irrevocably received, or has
been granted a credit against, or relief or remission from, or repayment or refund of, any Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an
amount equal to such credit, relief, remission, repayment or refund (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this Section with
respect to the Taxes or Other Taxes giving rise to such credit, relief, remission, repayment or
refund), net of all out-of-pocket expenses of such Lender, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such credit, relief,
remission, repayment or refund), provided that the Borrower, upon the request of such
Lender, agrees to repay to such Lender the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) in the event such Lender
is required to repay such credit, relief, remission, repayment or refund to such Governmental
Authority. Nothing contained herein shall (i) interfere with the right of any Lender to arrange
its tax affairs in whatever manner it determines is beneficial to such Lender, in its sole
discretion, (ii) require any Lender to make available its tax returns (or any other information
relating to its tax affairs or any computations in respect thereof) to the Borrower or



33









 




any other Person, or (iii) require any Lender to take or refrain from taking any action that
would prejudice its ability to benefit from any other credit, relief, remission, repayment or
refund to which it may be entitled.




     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of
such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or
converted. Each Lender agrees to designate a different Lending Office if such designation will
avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise
be materially disadvantageous to such Lender.



     3.03 Inability to Determine Rates. If (a) the Administrative Agent determines for any reason
that adequate and reasonable means do not exist for determining the Eurodollar Rate, or (b) the
Required Lenders determine that the Eurodollar Rate does not adequately and fairly reflect the cost
to the Lenders of funding Loans hereunder as Eurodollar Rate Loans, the Administrative Agent, in
the case of clause (a), or the Required Lenders, in the case of clause (b), will promptly so notify
the Borrower, and, in the case of clause (b), the Administrative Agent. From the date of any such
notice is given until such notice is revoked by the Administrative Agent, in the case of clause
(a), or the Required Lenders giving such notice, in the case of clause (b), the obligation of the
Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent
(in the case of clause (b) upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion
to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Borrowing of Base Rate Loans in the amount specified therein.



     3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans.



     (a) If any Lender determines that as a result of the introduction of or any change in or in
the interpretation of any Law, or such Lender’s compliance therewith, there shall be any increase
in the cost to such Lender of agreeing to make or making, funding or maintaining Eurodollar Rate
Loans or (as the case may be) issuing or participating in Letters of Credit, or a reduction in the
amount received or receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this subsection (a) any such increased costs or reduction in amount resulting from (i)
Taxes or Other Taxes (as to which Section 3.01 shall govern), (ii)



34









 




changes in the basis of taxation of overall net income or overall gross income by the United
States or any foreign jurisdiction or any political subdivision of either thereof under the Laws of
which such Lender is organized or has its Lending Office, and (iii) reserve requirements
contemplated by Section 3.04(c)), then from time to time upon demand of such Lender (with a
copy of such demand to the Administrative Agent), the Borrower shall pay to such Lender such
additional amounts as will compensate such Lender for such increased cost or reduction.




     (b) If any Lender determines that the introduction of any Law regarding capital adequacy or
any change therein or in the interpretation thereof, or compliance by such Lender (or its Lending
Office) therewith, has the effect of reducing the rate of return on the capital of such Lender or
any corporation controlling such Lender as a consequence of such Lender’s obligations hereunder
(taking into consideration its policies with respect to capital adequacy and such Lender’s desired
return on capital), then from time to time upon demand of such Lender (with a copy of such demand
to the Administrative Agent), the Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such reduction.



     (c) The Borrower shall pay to each Lender, as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency
funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on
the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each date on which interest
is payable on such Loan, provided the Borrower shall have received at least 15 days’ prior
notice (with a copy to the Administrative Agent) of such additional interest from such Lender. If
a Lender fails to give notice 15 days prior to the relevant Interest Payment Date, such additional
interest shall be due and payable 15 days from receipt of such notice.



     3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Borrower; or



     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 10.16;


including any loss or expense arising from the liquidation or reemployment of funds obtained by it
to maintain such Loan or from fees payable to terminate the deposits from which such funds were
obtained (but excluding any loss of anticipated profits). The Borrower shall also pay any
customary administrative fees charged by such Lender in connection with the foregoing.




35









 







For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.




     3.06 Matters Applicable to all Requests for Compensation. A certificate of the Administrative
Agent or any Lender claiming compensation under this Article III and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such Lender may use any
reasonable averaging and attribution methods.



     3.07 Mitigation Obligations; Replacement of Lenders.



     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or 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 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender shall 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 good faith judgment of such Lender, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, 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.



     (b) Effect of Failure to or Delay in Demanding Compensation. Failure or delay on the
part of any Lender to demand compensation pursuant to Section 3.01 or Section 3.04
shall not constitute a waiver of such Lender’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender pursuant to the provisions thereof
for any increased costs incurred or reductions that occur as a result of the introduction of a Law
or change therein or in the interpretation thereof suffered more than nine months prior to the date
that such Lender notifies the Borrower of the introduction of such Law or change therein or in the
interpretation thereof giving rise to such increased costs or reductions and of such Lender’s
intention to claim compensation therefor (except that, if the introduction of the Law or change
therein or in the interpretation thereof giving rise to such increased costs or reductions is
retroactive, then the nine-month period referred to above shall be extended to include the period
of retroactive effect thereof).



     (c) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 10.16.



     3.08 Survival. All of the Borrower’s obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



36









 





ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligation of each Lender to make its
initial Credit Extension hereunder is subject to satisfaction of the following conditions
precedent:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental
officials, a recent date before the Closing Date) and each in form and substance satisfactory to
the Administrative Agent and each of the Lenders:




     (i) executed counterparts of this Agreement, sufficient in number for distribution to
the Administrative Agent, each Lender and the Borrower;




     (ii) a Note executed by the Borrower in favor of each Lender requesting a Note;




     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers as the Administrative Agent may require
evidencing the identity, authority and capacity of each Responsible Officer authorized to
act on behalf of the Borrower in connection with this Agreement and the other Loan
Documents;




     (iv) a good standing certificate from the Secretary of State of the State of Delaware;




     (v) favorable opinions of (x) Mayer, Brown, Rowe & Maw LLP, counsel to the Borrower,
addressed to the Administrative Agent and each Lender, substantially in the form of
Exhibit E-1 and (y) Joseph E. Doyle, Vice President, General Counsel and Secretary
of the Borrower, addressed to the Administrative Agent and each Lender, substantially in the
form of Exhibit E-2;




     (vi) a certificate of a Responsible Officer either (A) attaching copies of all
consents, licenses and approvals required in connection with the execution, delivery and
performance by the Borrower and the validity against the Borrower of the Loan Documents, and
such consents, licenses and approvals shall be in full force and effect, or (B) stating that
no such consents, licenses or approvals are so required;




     (vii) a certificate signed by a Responsible Officer certifying (A) that the conditions
specified in Sections 4.02(a) and (b) have been satisfied, (B) that there
has been no event or circumstance since the date of the Audited Financial Statements that
has had or would be reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect; and (C) the current Debt Ratings;




     (viii) evidence that the Prairie Acquisition has been, or concurrently with the initial
Credit Extension will be, consummated in compliance with applicable law and



37









 






regulatory approvals, and that no material adverse effect under and as defined in the
agreements, documents and instruments evidencing the Prairie Acquisition shall have occurred
and given rise to a right for the Borrower to terminate the Prairie Acquisition; and




     (ix) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.



     (b) Any fees required to be paid on or before the Closing Date shall have been paid.



     (c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs
of the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs
incurred or to be incurred by it through the closing proceedings (provided that such
estimate shall not thereafter preclude a final settling of accounts between the Borrower and the
Administrative Agent).



     (d) The Closing Date shall have occurred on or before June 5, 2007.



     4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request
for Credit Extension (other than a Loan Notice requesting only a conversion of Loans to the other
Type or a continuation of Eurodollar Rate Loans) is subject to the following conditions precedent:



     (a) The representations and warranties of the Borrower contained in Article V (other
than, after the Closing Date, the representations and warranties set forth in Section 5.05
and Section 5.11(c)) shall be true and correct in all material respects on and as of the
date of such Credit Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct as of such
earlier date, and except that for purposes of this Section 4.02, the representations and
warranties contained in subsections (a) and (b) of Section 5.11 shall be deemed to include
the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.01.



     (b) No Default shall exist, or would result from such proposed Credit Extension.



     (c) The Administrative Agent and, if applicable, the L/C Issuer shall have received a Request
for Credit Extension in accordance with the requirements hereof.



          Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of
Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall
be deemed to be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit
Extension.




ARTICLE V.

REPRESENTATIONS AND WARRANTIES




38









 








     The Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01 Existence, Qualification and Power; Compliance with Laws. The Borrower and each of its
Subsidiaries (a) is duly organized, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite power and authority and
all requisite governmental licenses, authorizations, consents and approvals to (i) own its assets
and carry on its business and (ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party, (c) is duly qualified to do business in each jurisdiction where
its ownership, lease or operation of property or the conduct of its business requires such
qualification, and (d) is in compliance with all Requirements of Law; except in each case referred
to in clause (a) (in the case of any Subsidiary that is not a Material Subsidiary), (b)(i), (c) or
(d), to the extent that the failure to do so would not reasonably be expected to have a Material
Adverse Effect.



     5.02 Authorization; No Contravention. The execution, delivery and performance by the Borrower
of each Loan Document to which it is party, have been duly authorized by all necessary corporate
action, and do not and will not (a) contravene the terms of any of the Borrower’s Organization
Documents; (b) conflict with or result in any breach or contravention of, or the creation of any
Lien under, (i) any material Contractual Obligation to which the Borrower or any of its
Subsidiaries is a party or (ii) any order, injunction, writ or decree of any Governmental Authority
or any arbitral award to which the Borrower or any of its Subsidiaries or any of its property is
subject; or (c) violate any Requirement of Law applicable to the Borrower or any Subsidiary.



     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person (other than any of the foregoing which has been obtained or made and is in full force
and effect) is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, the Borrower of this Agreement or any other Loan Document.



     5.04 Binding Effect. This Agreement and each other Loan Document constitute the legal, valid
and binding obligations of the Borrower, enforceable against the Borrower in accordance with their
respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors’ rights generally or by equitable principles
relating to enforceability.



     5.05 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the Knowledge of the Borrower, threatened, at law, in equity, in arbitration or before any
Governmental Authority, against the Borrower or any Subsidiary or any of their respective
properties that (a) purport to affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby or thereby, or (b) either individually or in the
aggregate would in the reasonable judgment of the Borrower be expected to have a Material Adverse
Effect. No injunction, writ, temporary restraining order or other order of any nature has been
issued by any court or other Governmental Authority purporting to enjoin or restrain the execution,
delivery or performance of this Agreement or any other Loan Document, or directing



39









 




that the transactions provided for herein or therein not be consummated as herein or therein
provided.




     5.06 No Default. No Default exists or would result from the consummation of the transactions
contemplated by this Agreement or any other Loan Document. As of the Closing Date, neither the
Borrower nor any Subsidiary is in default under or with respect to any Contractual Obligation in
any respect which, individually or together with all such defaults, would reasonably be expected to
have a Material Adverse Effect.



     5.07 ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the best knowledge of the Borrower, nothing has occurred which would prevent, or cause the loss of,
such qualification. The Borrower and each ERISA Affiliate have made all required contributions to
each Plan subject to Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code has been made with respect
to any Plan.



     (b) There are no pending or, to the best knowledge of the Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan that has resulted or
would reasonably be expected to result in a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect to any Plan that has
resulted or would reasonably be expected to result in a Material Adverse Effect.



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no contribution
failure has occurred with respect to a Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA; (iii) no Pension Plan has any Unfunded Pension Liability that would, either
individually or in the aggregate with the Unfunded Pension Liability of all other Pensions Plans,
reasonably be expected to have a Material Adverse Effect; (iv) neither the Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any material liability under Title IV of
ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section
4007 of ERISA); (v) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any material liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or Section
4243 of ERISA with respect to a Multiemployer Plan; and (vi) neither the Borrower nor any ERISA
Affiliate has engaged in a transaction that is subject to Section 4069 or Section 4212(c) of ERISA.



     5.08 Use of Proceeds; Margin Regulations. The proceeds of the Credit Extensions will be used
solely for the purposes set forth in and permitted by Section 6.12 and Section
7.07. Neither the Borrower nor any Subsidiary is generally engaged in the business of
purchasing or selling Margin Stock or extending credit for the purpose of purchasing or carrying
Margin Stock.



40









 





     5.09 Ownership of Property; Liens. Each of the Borrower and each Subsidiary (other than
foreign Subsidiaries) has good record and marketable title in fee simple to, or valid leasehold
interests in, all real property necessary to conduct their respective businesses in the ordinary
course, except for (i) Permitted Liens, and (ii) such defects in title as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of the
Borrower and its Subsidiaries is subject to no Liens, other than Permitted Liens.



     5.10 Taxes. The Borrower and its Subsidiaries have filed all Federal income and other
material tax returns and reports which are required to be filed, and have paid all Federal income
and other material taxes, assessments, fees and other governmental charges levied or imposed upon
them or their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against the Borrower or any
Subsidiary that would, if made, have a Material Adverse Effect.



     5.11 Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrower
and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments
and Indebtedness.



     (b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries most
recently delivered pursuant to Section 6.01(b) and the related consolidated statements of
income or operations, shareholders’ equity and cash flows (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of the Borrower and its Subsidiaries as of
the date thereof and their results of operations for the period covered thereby, subject, in the
case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.



     (c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or would reasonably be expected
to have a Material Adverse Effect.



     5.12 Environmental Compliance. The Borrower and its Subsidiaries conduct in the ordinary
course of business a review of the effect of existing Environmental Laws and existing Environmental
Claims on their respective businesses, operations and properties, and as a result thereof the
Borrower has reasonably concluded that, except as specifically disclosed in Schedule 5.12,
such Environmental Laws and Environmental Claims are unlikely to have, individually or in the
aggregate, a Material Adverse Effect.



     5.13 Regulated Entities. None of the Borrower, any Person controlling the Borrower, or any
Subsidiary is an “Investment Company” within the meaning of the Investment Company



41









 




Act of 1940. The Borrower is not subject to regulation under the Federal Power Act, any state
public utilities code, or any other Federal or state statute or regulation limiting its ability to
incur Indebtedness.




     5.14 No Burdensome Restrictions. Neither the Borrower nor any Subsidiary is bound by, or
subject to any restriction in, any Organization Document or Requirement of Law, which would
reasonably be expected to have a Material Adverse Effect.



     5.15 Insurance. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts
(after giving effect to any self-insurance compatible with the following standards), with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or the applicable
Subsidiary operates.



     5.16 Disclosure. The representations and warranties made by the Borrower and its Subsidiaries
in the Loan Documents as of the date such representations and warranties are made or deemed made,
and the statements contained in any exhibit, report, statement or certificate furnished in writing
by or on behalf of the Borrower or any Subsidiary in connection with the Loan Documents, taken as a
whole, do not contain any untrue statement of a material fact or omit any material fact required to
be stated therein or necessary to make the statements made therein, taken as a whole and in light
of the circumstances under which they are made, not misleading in any material respect as of the
time when made or delivered (it being understood that all written financial projections with
respect to the Borrower and its Subsidiaries that have been or may hereafter be delivered to the
Administrative Agent and the Lenders have been or will be prepared in good faith based upon
assumptions believed by the Borrower to be reasonable as of the date of the applicable
projections).



ARTICLE VI.

AFFIRMATIVE COVENANTS




          So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding:




     6.01 Financial Statements. The Borrower shall deliver to each Lender and the Administrative
Agent, in form and detail satisfactory to the Lenders and the Administrative Agent (it being
understood that for purposes hereof, the form and detail required by the SEC for annual and
quarterly reports filed pursuant to the Exchange Act shall be deemed satisfactory):



     (a) as soon as available, but not later than 95 days after the end of each fiscal year or, if
earlier, not later than 5 days after such date as required to be filed with the SEC (including only
one 15 day automatic extension granted pursuant to Rule 12b-25 with respect to any such filing), a
copy of the audited consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such year and the related consolidated statements of income or operations, shareholders’ equity
and cash flows for such year, setting forth in each case in comparative form the figures for the
previous fiscal year, and accompanied by the opinion of Ernst & Young LLP



42









 




or another nationally-recognized independent public accounting firm (“Independent
Auditor”), which opinion (i) shall state that such consolidated financial statements present
fairly the Borrower’s consolidated financial position for the periods indicated in conformity with
GAAP, (ii) shall not be subject to any “going concern” or like qualification or exception, and
(iii) shall not be qualified or limited because of a restricted or limited examination by the
Independent Auditor of any material portion of the Borrower’s or any Subsidiary’s records; and




     (b) as soon as available, but not later than 50 days after the end of each of the first three
fiscal quarters of each fiscal year (commencing with the fiscal quarter ending June 30, 2007) or,
if earlier, not later than 5 days after such date as required to be filed with the SEC (including
only one 5 day automatic extension granted pursuant to Rule 12b-25 with respect to any such
filing), a copy of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as
of the end of such quarter and the related consolidated statements of income, shareholders’ equity
and cash flows for the period commencing on the first day and ending on the last day of such
quarter, and certified by a Responsible Officer as fairly presenting, in accordance with GAAP
(subject to ordinary, good faith year-end audit adjustments), the financial position and the
results of operations of the Borrower and its Subsidiaries as of such date and for such period,
together with, for such fiscal quarter and the portion of the Borrower’s fiscal year then ended,
the corresponding figures for the same fiscal quarter and portion of the previous fiscal year in
comparative form.



     6.02 Certificates; Other Information. The Borrower shall furnish to each Lender and the
Administrative Agent:



     (a) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b) (commencing with the delivery of the financial statements for the
fiscal quarter ending June 30, 2007), a duly completed Compliance Certificate executed by a
Responsible Officer;



     (b) promptly after their becoming available, copies of all financial statements and reports
that the Borrower sends to its shareholders, and copies of all financial statements and regular,
periodic or special reports (including Forms 10K, 10Q and 8K) that the Borrower or any Subsidiary
may make to, or file with, the SEC; and



     (c) promptly, such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as
the Administrative Agent or any Lender may from time to time reasonably request.



          Documents required to be delivered pursuant to Section 6.01 or Section 6.02(a)
or (b) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent
upon request




43









 







(and the Administrative Agent shall forward paper copies thereof to any Lender upon request)
by the Administrative Agent and (ii) the Borrower shall notify (which may be by facsimile or
electronic mail) the Administrative Agent (which shall notify each Lender) of the posting of any
such documents and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide a paper copy of each Compliance Certificate
required by Section 6.02(a) to the Administrative Agent. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies of such documents.




     6.03 Notices. The Borrower shall promptly notify the Administrative Agent (which shall
promptly notify each Lender):



     (a) of the occurrence of any Default known to the Borrower;



     (b) of any of the following matters: (i) breach or non-performance of, or any default under,
a Contractual Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material ruling, order or judgment in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including pursuant to any
applicable Environmental Laws, in each case if any matter described in clause (i), (ii) or (iii)
has resulted or would reasonably be expected to result in a Material Adverse Effect;



     (c) of the occurrence of any of the following events known to the Borrower which affect the
Borrower or any ERISA Affiliate, and deliver to the Administrative Agent and each Lender a copy of
any notice with respect to such event that is filed with a Governmental Authority and any notice
delivered by a Governmental Authority to the Borrower or any ERISA Affiliate with respect to such
event:




     (i) an ERISA Event;




     (ii) a contribution failure with respect to a Pension Plan sufficient to give rise to a
Lien under Section 302(f) of ERISA;




     (iii) the adoption of, or the commencement of contributions to, any Pension Plan by the
Borrower or any ERISA Affiliate that, in either case, requires material contributions; or



     (iv) the adoption of any amendment to a Pension Plan if such amendment results in a
material increase in contributions or Unfunded Pension Liability;



     (d) of any material change in accounting policies or financial reporting practices by the
Borrower and its consolidated Subsidiaries; and



44









 





     (e) at least two (2) Business Days before the occurrence thereof, a notice as to the date on
which the Bond Issuance Date shall occur.



          Each notice under this Section shall be accompanied by a written statement of a Responsible
Officer setting forth details of the occurrence referred to therein, and stating what action the
Borrower or any affected Subsidiary has taken and proposes to take with respect thereto. Each
notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions
of this Agreement and any other Loan Document that have been breached.




     6.04 Preservation of Corporate Existence, Etc. The Borrower shall, and shall cause each
Subsidiary to (provided that nothing in this Section 6.04 shall prevent the voluntary
liquidation, dissolution or winding up, not under any bankruptcy or insolvency law, of any
Subsidiary so long as no Default exists or will result therefrom):



     (a) preserve and maintain in full force and effect its existence and good standing under the
laws of its jurisdiction of organization;



     (b) preserve and maintain in full force and effect all of its governmental rights, privileges,
qualifications, permits, licenses and franchises necessary in the normal conduct of its business
(except (i) in connection with transactions and sales of assets permitted by Section 7.04
and (ii) to the extent the failure to preserve and maintain any of the foregoing would not, either
singly or in the aggregate, reasonably be expected to have a Material Adverse Effect); and



     (c) preserve or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which would reasonably be expected to have a Material Adverse
Effect.



     6.05 Maintenance of Property. The Borrower shall, and shall cause each Subsidiary to,
maintain and preserve all its property which is used or useful in its business in good working
order and condition, ordinary wear and tear excepted, except to the extent that failure to do so
would not reasonably be expected to have a Material Adverse Effect.



     6.06 Maintenance of Insurance. The Borrower shall, and shall cause each Subsidiary to,
maintain, with financially sound and reputable independent insurers (or pursuant to a
self-insurance program), insurance with respect to its properties and business in such amounts,
with such deductibles, and covering such risks as are customarily carried under similar
circumstances by such other Persons.



     6.07 Payment of Taxes. The Borrower shall, and shall cause each Subsidiary to, pay and
discharge, as the same become due and payable, all material tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless, in each case,
the same are being contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary.



     6.08 Compliance with Laws. The Borrower shall, and shall cause each Subsidiary to, comply
with all Requirements of Law of any Governmental Authority having jurisdiction over it or its
business (including the Federal Fair Labor Standards Act) the non-compliance with which would
reasonably be expected to have a Material Adverse Effect.



45









 





     6.09 Compliance with ERISA. The Borrower shall, and shall cause each of its ERISA Affiliates
to: (a) maintain each Plan in compliance in all material respects with the applicable provisions
of ERISA, the Code and other federal or state law; (b) cause each Plan which is qualified under
Section 401(a) of the Code to maintain such qualification; and (c) make all required contributions
to any Plan subject to Section 412 of the Code.



     6.10 Books and Records and Inspection Rights. The Borrower shall, and shall cause each
Subsidiary to, maintain proper books of record and account, in which full, true and correct entries
(sufficient to permit the preparation of consolidated financial statements in conformity with GAAP)
shall be made of all financial transactions and matters involving the assets and business of the
Borrower and such Subsidiary. The Borrower shall permit, and shall cause each Subsidiary to
permit, the Administrative Agent, any Lender or their respective representatives, subject to such
limitations as the Borrower may reasonably impose to ensure compliance with any applicable legal or
contractual restrictions, to visit and inspect the properties of the Borrower or any Subsidiary, to
examine their respective corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss the affairs, finances and accounts of the Borrower or any
Subsidiary with their respective officers at such reasonable times during normal business hours as
may be reasonably desired, upon reasonable advance notice to the Borrower; provided that
(i) so long as no Event of Default exists, inspections pursuant to this Section 6.10 shall
be limited to no more than once per calendar year (which inspection shall be coordinated through
the Administrative Agent and notice and the ability to participate in which shall be given to the
Lenders), and (ii) when an Event of Default exists the Administrative Agent or any Lender (or any
of their respective representatives or independent contractors) may do any of the foregoing at the
expense of the Borrower at any time during normal business hours and without advance notice.



     6.11 Environmental Laws. The Borrower shall, and shall cause each Subsidiary to, conduct its
operations and keep and maintain its property in compliance with all Environmental Laws, except to
the extent any failure to be compliance would not, individually or in the aggregate with all other
such failures, reasonably be expected to result in a Material Adverse Effect.



     6.12 Use of Proceeds. The Borrower shall use the proceeds of the Credit Extensions and shall
cause the issuance of Letters of Credit solely to consummate the Prairie Acquisition.



     6.13 Change in Business. The Borrower and its Subsidiaries taken as a whole shall not engage
in any business other than businesses in which they are engaged on the Closing Date and lines of
business reasonably related thereto.



ARTICLE VII.

NEGATIVE COVENANTS




          So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding:




     7.01 Financial Condition Covenants.



46









 





     (a) Minimum Interest Coverage Ratio. The Borrower shall not permit the Interest
Coverage Ratio for any Computation Period, beginning with the first Computation Period ending after
the Closing Date, to be less than 3.50 to 1.00.



     (b) Maximum Total Debt to EBITDA Ratio. The Borrower shall not permit the Total Debt
to EBITDA Ratio for any Computation Period, beginning with the first Computation Period ending
after the Closing Date, to be greater than 3.50 to 1.00.



     7.02 Liens. The Borrower shall not, and shall not permit any Subsidiary to, directly or
indirectly, make, create, incur, assume or suffer to exist any Lien upon or with respect to any
part of its property, whether now owned or hereafter acquired, other than the following
(“Permitted Liens”):



     (a) any Lien existing on the Closing Date and set forth in Schedule 7.02, and any
extension, renewal or replacement of any such Lien so long as the principal amount of the
obligations secured thereby is not increased (other than an increase resulting solely from a change
in applicable rates of exchange between U.S. Dollars, on the one hand, and any other currency in
which such principal amount is denominated, on the other hand) and the scope of the property
subject to such Lien is not extended;



     (b) Liens imposed by law for taxes, assessments or charges of any Governmental Authority for
claims not yet due, or to the extent that non-payment thereof is permitted by Section 6.07,
provided that no notice of Lien has been filed or recorded under the Code;



     (c) statutory Liens of landlords, Liens of carriers, warehousemen, mechanics and materialmen
and other Liens imposed by law or created in the ordinary course of business which are not
delinquent or remain payable without penalty or which are being contested in good faith by
appropriate proceedings;



     (d) Liens (other than any Lien imposed by ERISA) consisting of pledges or deposits required in
the ordinary course of business in connection with workers’ compensation, unemployment insurance
and other social security legislation;



     (e) Liens on the property of the Borrower or any Subsidiary securing (i) the non-delinquent
performance of bids, trade contracts (other than for borrowed money), leases (other than Capital
Leases and leases giving rise to Synthetic Lease Obligations), statutory obligations, (ii) surety
bonds (excluding appeal bonds and other bonds posted in connection with court proceedings or
judgments) and (iii) other non-delinquent obligations of a like nature in each case incurred in the
ordinary course of business, provided all such Liens in the aggregate would not (even if enforced)
cause a Material Adverse Effect;



     (f) Liens consisting of judgment or judicial attachment liens and liens securing contingent
obligations on appeal bonds and other bonds posted in connection with court proceedings or
judgments, provided that (i) in the case of judgment and judicial attachment liens, the enforcement
of such Liens is effectively stayed and (ii) all such liens in the aggregate at any time
outstanding for the Borrower and its Subsidiaries do not exceed $20,000,000;



47









 





     (g) easements, rights-of-way, covenants, conditions, restrictions and other similar
encumbrances incurred in the ordinary course of business which, individually or in the aggregate,
do not materially interfere with the ordinary conduct of the respective businesses of the Borrower
and its Subsidiaries;



     (h) Liens securing obligations in respect of Capital Leases or operating leases (including
leases giving rise to Synthetic Lease Obligations) on assets subject to such leases,
provided that, in the case of Capital Leases and leases giving rise to Synthetic Lease
Obligations, such leases are otherwise permitted hereunder;



     (i) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution; provided that (i) such deposit
account is not a dedicated cash collateral account and is not subject to restrictions against
access by the Borrower in excess of those set forth by regulations promulgated by the FRB, and (ii)
such deposit account is not intended by the Borrower or any Subsidiary to provide collateral to the
depository institution;



     (j) any Lien on property existing at the time of acquisition of such property by the Borrower
or a Subsidiary, or Liens to secure the payment of all or part of the purchase price of property
upon the acquisition of property by the Borrower or a Subsidiary or to secure any Indebtedness
incurred or guaranteed prior to, at the time of, or within one hundred eighty (180) days after, the
later of the date of acquisition of such property and the date such property is placed in service,
for the purpose of financing all or any part of the purchase price thereof, or Liens to secure any
Indebtedness incurred or guaranteed for the purpose of financing the cost to the Borrower or a
Subsidiary or improvements to such acquired property; provided, in each case, that (i) no
such Lien shall any time encumber any property other than the property financed by such
Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of acquisition;



     (k) other Liens, in addition to those permitted by clauses (a) through (j),
securing obligations or arising in connection with Securitization Transactions; provided
that (i) the sum (without duplication) of all such obligations (excluding obligations arising in
connection with Securitization Transactions) shall not at any time exceed in the aggregate
$150,000,000, and (ii) the aggregate investment or claim held at any time by all purchasers,
assignees or other transferees of (or of interests in) receivables and other rights to payment in
all Securitization Transactions, shall not at any time exceed in the aggregate $300,000,000; and



     (l) rights of first refusal, rights of Governmental Authorities to approve transfers and other
similar restrictions on transfer of any ownership interest of the Borrower or any of its
Subsidiaries in any joint venture or similar investment in an entity (other than a Subsidiary)
operating primarily outside of the United States.



     7.03 Restrictions on Subsidiaries. The Borrower (a) will not enter into any agreement or
understanding pursuant to which any claim it may have against any Subsidiary would be subordinate
in any manner to the payment of any other obligation of such Subsidiary and (b) will not, and will
not permit any Subsidiary to, enter into any agreement or understanding



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which by its terms limits or restricts the ability of such Subsidiary to make funds available
to the Borrower (whether by way of a dividend or other distribution, by repayment of any
inter-company advance or otherwise) if, in any such case referred to in (a) or (b) above, there is,
at the time any such agreement or understanding is entered into, a reasonable likelihood that all
such agreements and understandings referred to in (a) or (b) above, considered together, would
materially and adversely affect the ability of the Borrower to meet its obligations as they become
due.




     7.04 Consolidation, Mergers and Sales of Assets. The Borrower will not merge or consolidate
with any other Person or sell, lease, transfer or otherwise dispose of its property and assets as,
or substantially as, an entirety to any Person, unless (a) either the Borrower shall be the
continuing or surviving corporation, or the successor or acquiring corporation shall be a solvent
corporation organized under the laws of any State of the United States of America and shall
expressly assume in writing all of the obligations of the Borrower under this Agreement and the
Notes, including all covenants herein and therein contained, and such successor or acquiring
corporation shall succeed to and be substituted for the Borrower with the same effect as if it had
been named herein as a party hereto, provided that no such sale shall release the Borrower
from any of its obligations and liabilities under this Agreement or the Notes unless such sale is
followed by the complete liquidation of the Borrower and substantially all the assets of the
Borrower immediately following such sale are distributed in such liquidation, and (b) the Borrower
as the continuing or surviving corporation or the successor or acquiring corporation, as the case
may be, shall not, immediately after such merger or consolidation, or such sale or other
disposition, be in default under any such obligations.



     7.05 Limitation on Subsidiary Indebtedness. The Borrower shall not permit its Subsidiaries to
create, incur, assume or suffer to exist, or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness (excluding obligations in respect of Securitization
Transactions) at any time outstanding in an aggregate amount in excess of the greater of (a)
$200,000,000 and (b) 25% of Consolidated Net Worth.



     7.06 Transactions with Affiliates. The Borrower shall not, and shall not permit any
Subsidiary to, enter into any transaction with any Affiliate of the Borrower (other than the
Borrower or a Subsidiary), except upon fair and reasonable terms no less favorable to the Borrower
or such Subsidiary than would obtain in a comparable arm’s-length transaction with a Person not an
Affiliate of the Borrower or such Subsidiary.



     7.07 Use of Proceeds. The Borrower shall not, and shall not permit any Subsidiary to, use any
portion of the proceeds of any Credit Extension, whether directly or indirectly, and whether
immediately, incidentally or ultimately, to purchase or carry Margin Stock or to extend credit to
others for the purpose of purchasing or carrying Margin Stock in violation of the provisions of
Regulation U of the FRB.



     7.08 ERISA. The Borrower shall not, and shall not permit any of its ERISA Affiliates to: (a)
engage in a prohibited transaction or material violation of the fiduciary responsibility rules with
respect to any Plan which has resulted or would reasonably be expected to result in liability of
the Borrower in an aggregate amount in excess of $20,000,000; or (b) engage in a transaction that
is subject to Section 4069 or 4212(c) of ERISA.



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     7.09 Securitization Transactions. The Borrower shall not, and shall not permit its
Subsidiaries to, enter into any Securitization Transaction to the extent that the aggregate
investment or claims held at any time by all purchasers, assignees, transferees of (or of interests
in) receivables and other rights to payment in all Securitization Transactions would at any time
exceed $300,000,000.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



     (a) Non-Payment. The Borrower fails to pay (i) when and as required to be paid
herein, any principal of any Loan, (ii) within 2 Business Days after receipt of any notice of a
drawing under a Letter of Credit, the Unreimbursed Amount with respect to such Letter of Credit or
(iii) within 5 Business Days after the same becomes due, any interest, fee or other amount payable
hereunder or under any other Loan Document.



     (b) Representation or Warranty. Any representation or warranty by the Borrower or any
Subsidiary made or deemed made herein or in any other Loan Document, or which is contained in any
certificate, document or financial or other written statement by the Borrower, any Subsidiary or
any Responsible Officer furnished at any time under this Agreement or under any other Loan
Document, is incorrect or misleading in any material respect on or as of the date made or deemed
made.



     (c) Specific Defaults. The Borrower fails to perform or observe any term, covenant or
agreement contained in Section 6.04 (with respect to the Borrower only), in Section
6.12 or in Article VII.



     (d) Other Defaults. The Borrower fails to perform or observe any other term or
covenant contained in this Agreement or any other Loan Document (any such failure being referred to
in this Section 8.01(d) as a “default”) and such default shall continue unremedied for a
period of 30 days after (i) the date upon which written notice of such default is given to the
Borrower by the Administrative Agent or (ii) if the Borrower fails to promptly notify the
Administrative Agent and the Lenders of the occurrence of any default in accordance with
Section 6.03, the date on which a Responsible Officer has actual knowledge of such default.



     (e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make any payment
of any Material Financial Obligation (other than Indebtedness hereunder) when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise, but after giving
effect to any applicable grace or cure period); or (B) fails to perform or observe any other
condition or covenant, or any other event shall occur or condition exist, under one or more
agreements or instruments relating to such Material Financial Obligations, if the effect of such
failure, event or condition is to cause (or require), or to permit the holder or holders of such
Material Financial Obligations (or the beneficiary or beneficiaries of such Material Financial
Obligations (or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries)) to cause (or require), such Material Financial Obligations to become due and



50









 




payable (or to be purchased, repurchased, defeased, redeemed or cash collateralized) prior to
the stated maturity thereof.




     (f) Insolvency; Voluntary Proceedings. The Borrower or any Material Subsidiary (i)
generally fails to pay, or admits in writing its inability to pay, its debts as they become due,
subject to applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course; (iii) applies for or consents to
any Insolvency Proceeding; or (iv) takes any action to effectuate or authorize any of the
foregoing; provided that the foregoing shall not apply to the voluntary liquidation,
dissolution or winding up of a Subsidiary permitted by Section 6.04.



     (g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is commenced
or filed against the Borrower or any Material Subsidiary, or any writ, judgment, warrant of
attachment, execution or similar process is issued or levied against a substantial part of the
Borrower’s or any such Subsidiary’s properties, and such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded, within 60 days after commencement, filing or levy; (ii) the
Borrower or any Material Subsidiary admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-U.S. law) is ordered in
any Insolvency Proceeding with respect to the Borrower or such Subsidiary; or (iii) the Borrower or
any Material Subsidiary acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other similar Person for
itself or a substantial portion of its property or business.



     (h) ERISA. (i) An ERISA Event shall occur with respect to a Pension Plan or
Multiemployer Plan which has resulted or would reasonably be expected to result in liability of the
Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an
aggregate amount in excess of $20,000,000; (ii) a contribution failure shall occur with respect to
a Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA; or (iii) the
Borrower or any ERISA Affiliate shall fail to pay when due, after the expiration of any applicable
grace period (or any period during which (x) the Borrower is permitted to contest its obligation to
make such payment without incurring any liability (other than interest) or penalty and (y) the
Borrower is contesting such obligation in good faith and by appropriate proceedings), any
installment payment with respect to its withdrawal liability under Section 4201 of ERISA or any
contribution obligation under Section 4243 of ERISA, in each case under a Multiemployer Plan in an
aggregate amount in excess of $30,000,000.



     (i) Monetary Judgments. One or more non-interlocutory judgments, non-interlocutory
orders, decrees or arbitration awards is entered against the Borrower or any Subsidiary involving
in the aggregate a liability (to the extent not covered by insurance as to which the insurer does
not dispute coverage) as to any single or related series of transactions, incidents or conditions
of $50,000,000 or more, and (A) enforcement proceedings are commenced by any creditor upon such
judgment, order, decree or award, or (B) the same shall remain unvacated and unstayed pending
appeal for a period of 30 days after the entry thereof.



     (j) Change of Control. There occurs any Change of Control with respect to the
Borrower.



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     (k) Invalidity of Loan Documents. Any Loan Document, at any time after its execution
and delivery and for any reason other than as expressly permitted hereunder or satisfaction in full
of all the Obligations, ceases to be in full force and effect; or the Borrower or any other Person
contests in any manner the validity or enforceability of any Loan Document; or the Borrower denies
that it has any or further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:



     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;



     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower;



     (c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and



     (d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies
available to it, the Lenders and the L/C Issuer under the Loan Documents or applicable law;


provided, however, that upon the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each
Lender to make Loans (other than automatic Loans to reimburse the L/C Issuer for draws under
Letters of Credit) and any obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans, L/C Borrowings and
all interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.




     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall be applied by
the Administrative Agent in the following order:



          First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under Article III)
payable to the Administrative Agent in its capacity as such;




          Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders and the





52









 







L/C Issuer (including Attorney Costs and amounts payable under Article III), ratably
among them in proportion to the amounts described in this clause Second payable to them;




          Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in
proportion to the respective amounts described in this clause Third payable to them;




          Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Fourth held by them;




          Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit; and




          Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.



Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral
after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.




ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authorization of Administrative Agent.



     (a) Each Lender hereby irrevocably appoints, designates and authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Loan Document, together with such powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, the Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to
have any fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement
or any other Loan Document or otherwise exist against the Administrative Agent. Without limiting
the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan
Documents with reference to the Administrative Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of any applicable Law.
Instead, such term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting parties.



     (b) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith, and the L/C Issuer shall have all of



53









 




the benefits and immunities (i) provided to the Administrative Agent in this Article
IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with
Letters of Credit issued by it or proposed to be issued by it and the applications and agreements
for letters of credit pertaining to such Letters of Credit as fully as if the term “Administrative
Agent” as used in this Article IX (including the indemnity provision set forth in
Section 9.07) included the L/C Issuer and the definition of “Agent-Related Person” included
the L/C Issuer, its Affiliates and their respective officers, directors, employees, agents and
attorneys-in-fact with respect to such acts or omissions, and (ii) as additionally provided herein
with respect to the L/C Issuer.




     9.02 Delegation of Duties. The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall
be entitled to advice of counsel and other consultants or experts concerning all matters pertaining
to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.



     9.03 Liability of Administrative Agent. No Agent-Related Person shall (a) be liable for any
action taken or omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except to the extent of its own
gross negligence or willful misconduct in connection with its duties expressly set forth herein),
or (b) be responsible in any manner to any Lender or participant for any recital, statement,
representation or warranty made by the Borrower or any officer thereof, contained herein or in any
other Loan Document, or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure of the Borrower or
any other party to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant to ascertain or to
inquire as to the observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties, books or records of
the Borrower or any Affiliate thereof.



     9.04 Reliance by Administrative Agent.



     (a) The Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution, representation, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail
message, statement or other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons, and upon advice and statements
of legal counsel (including counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent shall be fully justified in failing
or refusing to take any action under any Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Document in accordance with a request or



54









 




consent of the Required Lenders (or such greater number of Lenders as may be expressly
required hereby in any instance) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders.




     (b) For purposes of determining compliance with the conditions specified in Section
4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.



     9.05 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Default and stating that such notice is a
“notice of default.” The Administrative Agent will notify the Lenders of its receipt of any such
notice. The Administrative Agent shall take such action with respect to such Default as may be
directed by the Required Lenders in accordance with Article VIII; provided, however, that
unless and until the Administrative Agent has received any such direction, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable or in the best interest of the Lenders.



     9.06 Credit Decision; Disclosure of Information by Administrative Agent. Each Lender
acknowledges that no Agent-Related Person has made any representation or warranty to it, and that
no act by the Administrative Agent hereafter taken, including any consent to and acceptance of any
assignment or review of the affairs of the Borrower or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any Lender as to any
matter, including whether Agent-Related Persons have disclosed material information in their
possession. Each Lender represents to the Administrative Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the Borrower and its
Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to
the Borrower hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by the Administrative
Agent herein, the Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects, operations,
property, financial and other



55









 




condition or creditworthiness of the Borrower or any of its Affiliates which may come into the
possession of any Agent-Related Person.




     9.07 Indemnification of Administrative Agent. Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the
extent not reimbursed by or on behalf of the Borrower and without limiting the obligation of the
Borrower to do so), pro rata, and hold harmless each Agent-Related Person from and against any and
all Indemnified Liabilities incurred by it; provided, however, that (a) no Lender shall be liable
for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities to the
extent determined in a final, nonappealable judgment by a court of competent jurisdiction to have
resulted from such Agent-Related Person’s own gross negligence or willful misconduct; provided,
further, that no action taken in accordance with the directions of the Required Lenders (or such
greater number of Lenders as may be expressly required hereby in any instance) shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section, and (b) no Lender
shall be liable for the payment of any portion of an Indemnified Liability pursuant to this Section
unless such Indemnified Liability was incurred by the Administrative Agent in its capacity as such,
the L/C Issuer in its capacity as such, an Agent-Related Person acting for the Administrative Agent
in such capacity, or an Agent-Related Person acting for the L/C Issuer in such capacity. Without
limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any
other Loan Document, or any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive termination of the Aggregate Commitments, the payment of
all other Obligations and the resignation of the Administrative Agent.



     9.08 Individual Capacities.



     JPMCB and its Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Borrower and its Affiliates as though
JPMCB were not the Administrative Agent hereunder and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, JPMCB or its Affiliates may receive
information regarding the Borrower or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrower or such Affiliate) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information to them. With
respect to its Loans, JPMCB shall have the same rights and powers under this Agreement as any other
Lender and may exercise such rights and powers as though it were not the Administrative Agent, and
the terms “Lender” and “Lenders” include JPMCB in its individual capacity.



     9.09 Successor Administrative Agent. The Administrative Agent may resign as Administrative
Agent upon 30 days’ notice to the Lenders. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor



56









 




administrative agent for the Lenders, which successor administrative agent shall be consented
to by the Borrower at all times other than during the existence of an Event of Default (which
consent of the Borrower shall not be unreasonably withheld or delayed). If no successor
administrative agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and
the Borrower, a successor administrative agent from among the Lenders. Upon the acceptance of its
appointment as successor administrative agent hereunder, the Person acting as such successor
administrative agent shall succeed to all the rights, powers and duties of the retiring
Administrative Agent, the term “Administrative Agent” shall mean such successor administrative
agent and the retiring Administrative Agent’s appointment, powers and duties as Administrative
Agent shall be terminated. After any retiring Administrative Agent’s resignation hereunder as
Administrative Agent, the provisions of this Article IX and Sections 10.04 and
10.05 shall inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement. If no successor administrative agent has
accepted appointment as Administrative Agent by the date which is 30 days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.




     9.10 Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Borrower, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention
in such proceeding or otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders,
the L/C Issuer and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuer and the Administrative Agent under
Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such
judicial proceeding; and




     (b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent





57









 







and its agents and counsel, and any other amounts due the Administrative Agent under Sections
2.09 and 10.04.




          Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.




     9.11 Other Agents; Arrangers and Managers. None of the Lenders or other Persons identified on
the facing page or signature pages of this Agreement as a “syndication agent,” “documentation
agent,” “co-agent,” “book manager,” “lead manager,” “arranger,” “lead arranger” or “co-arranger”
shall have any right, power, obligation, liability, responsibility or duty under this Agreement
other than, in the case of such Lenders, those applicable to all Lenders as such and, in the case
of the Arrangers, those applicable to the Arrangers set forth in Section 10.05. Without
limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed
to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.



ARTICLE X.

MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower therefrom, shall be effective unless
in writing signed by the Required Lenders and the Borrower and acknowledged by the Administrative
Agent, and each such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment, waiver or consent
shall:



     (a) waive any condition set forth in Section 4.01(a) or extend the Prairie Acquisition
Funding Period without the written consent of each Lender;



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under
any other Loan Document without the written consent of each Lender directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01) any fees
or other amounts payable hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby; provided, however, that only the consent of the Required
Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of
the Borrower to pay interest or Letter of Credit Fees at the Default Rate;



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     (e) change Section 2.13 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;



     (f) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; or



     (g) change the definition of “Pro Rata Share” or any provision that would alter the pro rata
treatment of Commitment reductions or, except as contemplated by Section 2.14 and
Section 2.15, the pro rata funding of Loans or pro rata purchase of participations in L/C
Obligations, in each case without the written consent of each Lender;



and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Letter of Credit Application relating to
any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; (iii) Section 10.07(h) may not be amended, waived or otherwise modified without
the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at
the time of such amendment, waiver or other modification; and (iv) the Fee Letter may be amended,
or rights or privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender.



     10.02 Notices and Other Communications; Facsimile Copies.



     (a) General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including by facsimile transmission).
All such written notices shall be mailed certified or registered mail, faxed or delivered to the
applicable address, facsimile number or (subject to subsection (c) below) electronic mail address,
and all notices and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:




     (i) if to the Borrower, the Administrative Agent or the L/C Issuer, to the address,
facsimile number, electronic mail address or telephone number specified for such Person on
Schedule 10.02 or to such other address, facsimile number, electronic mail address
or telephone number as shall be designated by such party in a notice to the other parties;
and




     (ii) if to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as shall be



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designated by such party in a notice to the Borrower, the Administrative Agent and the
L/C Issuer.


Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by facsimile shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in subsection (b) below
shall be effective as provided in such subsection (b).




     (b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that
the foregoing shall not apply to notices to any Lender pursuant to Article II if such
Lender has notified the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. 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) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be
transmitted and/or signed by facsimile. The effectiveness of any such documents and signatures
shall, subject to applicable Law, have the same force and effect as manually-signed originals and
shall be binding on the Borrower, the Administrative Agent and the Lenders. The Administrative
Agent may also require that any such documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the failure to request or deliver the same shall not
limit the effectiveness of any facsimile document or signature.



     (d) Reliance by Administrative Agent, the L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices
were not made in a manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify each Agent-Related Person, the
L/C Issuer and each Lender from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the Borrower, in each
case except to the extent such losses, costs, expenses and liabilities are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Person. All telephonic notices to and other
communications with the Administrative Agent may be recorded by the Administrative Agent, and each
of the parties hereto hereby consents to such recording.



     10.03 No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent to
exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further



60









 




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.




     10.04 Attorney Costs, Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the
Administrative Agent for all costs and expenses incurred in connection with the development,
preparation, negotiation and execution of this Agreement and the other Loan Documents and any
amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or
not the transactions contemplated hereby or thereby are consummated), and the consummation and
administration of the transactions contemplated hereby and thereby, including all Attorney Costs,
and (b) to pay or reimburse the Administrative Agent, the L/C Issuer and each Lender for all costs
and expenses incurred in connection with the enforcement, attempted enforcement, or preservation of
any rights or remedies under this Agreement or the other Loan Documents (including all such costs
and expenses incurred during any “workout” or restructuring in respect of the Obligations and
during any legal proceeding, including any proceeding under any Debtor Relief Law), including all
Attorney Costs. The foregoing costs and expenses shall include all search, filing, recording,
title insurance and appraisal charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Administrative Agent and the cost of independent public accountants and
other outside experts retained by the Administrative Agent, the L/C Issuer or any Lender. All
amounts due under this Section 10.04 shall be payable within ten Business Days after demand
therefor. The agreements in this Section shall survive the termination of the Aggregate
Commitments and repayment of all other Obligations.



     10.05 Indemnification by the Borrower. Whether or not the transactions contemplated hereby
are consummated, the Borrower shall indemnify and hold harmless each Agent-Related Person, each
Arranger, the L/C Issuer, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively the “Indemnitees”) from and
against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time be imposed on, incurred by or asserted against any such
Indemnitee (including any of the foregoing asserted by the Borrower) in any way relating to or
arising out of or in connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby or the consummation of the transactions
contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of
the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (c) any Environmental Claim related in any way to the
Borrower or any Subsidiary, including any Environmental Claim arising from any property currently
or formerly owned or operated by the Borrower or any Subsidiary, or actual or alleged violation of
Environmental Law or (d) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened claim,
investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party
thereto (all the foregoing, collectively, the “Indemnified Liabilities”); provided
that such



61









 




indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs,
expenses or disbursements (x) are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Indemnitee, or (y) result from disputes solely among the Lenders and/or the Administrative Agent.
No Indemnitee shall be liable for any damages arising from the use by others of any information or
other materials obtained through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee have any liability for any indirect,
consequential, special or punitive damages relating to this Agreement or any other Loan Document or
arising out of its activities in connection herewith or therewith (whether before or after the
Closing Date). All amounts due under this Section 10.05 shall be payable within ten
Business Days after demand therefor. The agreements in this Section shall survive the resignation
of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate
Commitments and the repayment, satisfaction or discharge of all the other Obligations.




     10.06 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the
L/C Issuer or any Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Administrative
Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a)
to the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such set-off had not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent or the L/C Issuer, as the case may be, upon demand its applicable share of any amount so
recovered from or repaid by such Person, plus interest thereon from the date of such demand to the
date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in
effect.



     10.07 Successors and Assigns.



     (a) 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 the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC in
accordance with the provisions of subsection (h) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). 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
subsection (d) of this Section and, to the extent expressly contemplated hereby, the Indemnitees)
any legal or equitable right, remedy or claim under or by reason of this Agreement.




62










 





     (b) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of its Commitment and
the Loans (including for purposes of this subsection (b), participations in L/C Obligations) at the
time owing to it); provided that (i) except in the case of an assignment of the entire
remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund (as defined
in subsection (g) of this Section) with respect to a Lender, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); (ii)
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 with respect to the Loans or the Commitment
assigned; (iii) any assignment of a Commitment must be approved by the Administrative Agent and the
L/C Issuer unless the Person that is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500 from the assigning Lender or the Eligible
Assignee. Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, 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 Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption 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 3.01, 3.04, 3.05,
10.04 and 10.05 with respect to facts and circumstances occurring prior to the
effective date of such assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection 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 subsection (d) of this Section.



     (c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive in the absence of manifest error, 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. In addition, at any time
that a request for a consent for a material or other substantive



63









 







change to the Loan Documents is pending, any Lender wishing to consult with other Lenders in
connection therewith may request and receive from the Administrative Agent a copy of the Register.



     (d) Any Lender may at any time, without the consent of, or notice to, the Borrower or the
Administrative Agent, sell participations to any Person (other than a natural person or the
Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in
all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or
a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C
Obligations) owing to it); provided that (i) such Lender’s obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and
the other Lenders shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any amendment, waiver or
other modification described in the first proviso to Section 10.01 that directly affects
such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 10.09 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.13 as though it were a
Lender.



     (e) A Participant shall not be entitled to receive any greater payment under Section
3.01 or 3.04 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. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrower is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 10.15 as though it were a
Lender.



     (f) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement (including under its Note, if any) to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



     (g) As used herein, the following terms have the following meanings:



          “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative
Agent and the L/C Issuer, and (ii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed);



64









 




provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




          “Fund” means 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.



          “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



     (h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle identified as such in writing from time
to time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the
option to provide all or any part of any Loan that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to exercise such
option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof or, if it fails to do so, to make such
payment to the Administrative Agent as is required under Section 2.13(c)(ii). Each party
hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such
option shall increase the costs or expenses or otherwise increase or change the obligations of the
Borrower under this Agreement (including its obligations under Section 3.04), (ii) no SPC
shall be liable for any indemnity or similar payment obligation under this Agreement for which a
Lender would be liable, and (iii) the Granting Lender shall for all purposes, including the
approval of any amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other senior debt of any SPC,
it will not institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of
the United States or any State thereof. Notwithstanding anything to the contrary contained herein,
any SPC may (i) with notice to, but without prior consent of the Borrower and the Administrative
Agent and with the payment of a processing fee of $3,500, assign all or any portion of its right to
receive payment with respect to any Loan to the Granting Lender and (ii) disclose on a confidential
basis any non-public information relating to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC.



     (i) Notwithstanding anything to the contrary contained herein, if at any time JPMCB assigns
all of its Commitment and Loans pursuant to subsection (b) above, it shall retain all the rights
and obligations of the L/C Issuer hereunder with respect to all Letters of Credit issued by it that
are outstanding as of the effective date of such assignment and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(c)).



65









 





     10.08 Confidentiality. Each of the Administrative Agent and the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates and to its Affiliates’ respective partners, directors, officers,
employees, agents, advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any regulatory authority
(including any self-regulatory authority purporting to have jurisdiction over it, such as the
National Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under or any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Documents or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to the Borrower and its obligations, (g) with the consent of the Borrower, or (h) to the extent
such Information (x) becomes publicly available other than as a result of a breach of this Section
or (y) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from
a source other than the Borrower. For the purposes of this Section, “Information” means
all information received from the Borrower or any Subsidiary relating to the Borrower or any
Subsidiary or any of their respective businesses, other than any such information that is available
to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the
Borrower or any Subsidiary. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.



     10.09 Set-off. In addition to any rights and remedies of the Lenders provided by law, upon
the occurrence and during the continuance of any Event of Default, each Lender is authorized at any
time and from time to time, without prior notice to the Borrower (any such notice being waived by
the Borrower to the fullest extent permitted by law), to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the account of the Borrower
against any and all Obligations owing to such Lender hereunder or under any other Loan Document,
now or hereafter existing, irrespective of whether or not the Administrative Agent or such Lender
shall have made demand under this Agreement or any other Loan Document and although such
Obligations may be contingent or unmatured or denominated in a currency different from that of the
applicable deposit or indebtedness; provided, that unless the Required Lenders have
requested or consented to any action pursuant to Section 8.02, the consent of the
Administrative Agent shall be required for the exercise by a Lender of its set off rights pursuant
to this Section 10.09 to the extent such rights are to be exercised with respect to
contingent or unmatured amounts, which consent may be withheld by the Administrative Agent in its
sole discretion unless the Required Lenders have directed the Administrative Agent in writing
otherwise. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after
any such set-off and application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.



66









 





     10.10 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.



     10.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.



     10.12 Integration. This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof and thereof and
supersedes all prior agreements, written or oral, on such subject matter. In the event of any
conflict between the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of supplemental
rights or remedies in favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.



     10.13 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.



     10.14 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



67









 





     10.15 Tax Forms.



     (a) (i) Each Lender that is not a “United States person” within the meaning of Section
7701(a)(30) of the Code (a “Foreign Lender”) shall deliver to the Administrative Agent,
prior to receipt of any payment subject to withholding under the Code (or upon accepting an
assignment of an interest herein), two duly signed completed copies of either IRS Form W-8BEN or
any successor thereto (relating to such Foreign Lender and entitling it to an exemption from, or
reduction of, withholding tax on all payments to be made to such Foreign Lender by the Borrower
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto (relating to all payments
to be made to such Foreign Lender by the Borrower pursuant to this Agreement) or such other
evidence satisfactory to the Borrower and the Administrative Agent that such Foreign Lender is
entitled to an exemption from, or reduction of, U.S. withholding tax, including any exemption
pursuant to Section 881(c) of the Code. Thereafter and from time to time, each such Foreign Lender
shall (A) promptly submit to the Administrative Agent such additional duly completed and signed
copies of one of such forms (or such successor forms as shall be adopted from time to time by the
relevant United States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the Borrower and the
Administrative Agent of any available exemption from or reduction of, United States withholding
taxes in respect of all payments to be made to such Foreign Lender by the Borrower pursuant to this
Agreement, (B) promptly notify the Administrative Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (C) take such steps as shall not
be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement
of applicable Laws that the Borrower make any deduction or withholding for taxes from amounts
payable to such Foreign Lender.




     (ii) Each Foreign Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Lender under any of
the Loan Documents (for example, in the case of a typical participation by such Lender),
shall deliver to the Administrative Agent on the date when such Foreign Lender ceases to act
for its own account with respect to any portion of any such sums paid or payable, and at
such other times as may be necessary in the determination of the Administrative Agent (in
the reasonable exercise of its discretion), (A) two duly signed completed copies of the
forms or statements required to be provided by such Lender as set forth above, to establish
the portion of any such sums paid or payable with respect to which such Lender acts for its
own account that is not subject to U.S. withholding tax, and (B) two duly signed completed
copies of IRS Form W-8IMY (or any successor thereto), together with any information such
Lender chooses to transmit with such form, and any other certificate or statement of
exemption required under the Code, to establish that such Lender is not acting for its own
account with respect to a portion of any such sums payable to such Lender.




     (iii) The Borrower shall not be required to pay any additional amount to any Foreign
Lender under Section 3.01 (A) with respect to any Taxes required to be deducted or
withheld on the basis of the information, certificates or statements of exemption such
Lender transmits with an IRS Form W-8IMY pursuant to this Section 10.15(a) or (B) if



68









 







such Lender shall have failed to satisfy the foregoing provisions of this Section
10.15(a); provided that if such Lender shall have satisfied the requirement of
this Section 10.15(a) on the date such Lender became a Lender or ceased to act for
its own account with respect to any payment under any of the Loan Documents, nothing in this
Section 10.15(a) shall relieve the Borrower of its obligation to pay any amounts
pursuant to Section 3.01 in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date establishing
the fact that such Lender or other Person for the account of which such Lender receives any
sums payable under any of the Loan Documents is not subject to withholding or is subject to
withholding at a reduced rate.




     (iv) The Administrative Agent may, without reduction, withhold any Taxes required to
be deducted and withheld from any payment under any of the Loan Documents with respect to
which the Borrower is not required to pay additional amounts under this Section
10.15(a).



     (b) Upon the request of the Administrative Agent, each Lender that is a “United States person”
within the meaning of Section 7701(a)(30) of the Code shall deliver to the Administrative Agent two
duly signed completed copies of IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an amount equivalent to
the applicable back-up withholding tax imposed by the Code, without reduction.



     (c) If any Governmental Authority asserts that the Administrative Agent did not properly
withhold or backup withhold, as the case may be, any tax or other amount from payments made to or
for the account of any Lender, such Lender shall indemnify the Administrative Agent therefor,
including all penalties and interest, any taxes imposed by any jurisdiction on the amounts payable
to the Administrative Agent under this Section, and costs and expenses (including Attorney Costs)
of the Administrative Agent. The obligation of the Lenders under this Section shall survive the
termination of the Aggregate Commitments, repayment of all other Obligations hereunder and the
resignation of the Administrative Agent.



     10.16 Replacement of Lenders. If any Lender has made a claim for compensation under Section
3.01 or 3.04, or is a Non-Extending Lender or Non-Consenting Lender, the Borrower
may, 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, and
consents required by, Section 10.07), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to one or more Eligible Assignees procured by the
Borrower that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided that:




     (a) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 10.07(b);



69









 






     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05) 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




     (c) such assignment does not conflict with applicable Laws.


A Lender shall not be required to make any such assignment or delegation if, prior to the date that
the Borrower gives notice requiring such Lender to make such assignment and delegation, 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.




     10.17 Governing Law.



     (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.



     (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVE PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED
BY THE LAW OF SUCH STATE.



     10.18 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND



70









 







CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.



     10.19 USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself and not on
behalf of any 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)) (the “Act”),
it is 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 or the Administrative Agent, as applicable, to identify the Borrower in accordance with
the Act.



     10.20 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby, the Borrower acknowledges and agrees, and acknowledges its
Affiliates’ understanding, that: (i) the credit facility provided for hereunder and any related
arranging or other services in connection therewith (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial
transaction between the Borrower and its Affiliates, on the one hand, and the Administrative Agent
and the Arrangers, on the other hand, the Borrower is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions contemplated hereby and
by the other Loan Documents (including any amendment, waiver or other modification hereof or
thereof); (ii) in connection with the process leading to such transaction, the Administrative Agent
and each of the Arrangers is and has been acting solely as a principal and is not the financial
advisor, agent or fiduciary, for the Borrower or any of its Affiliates, stockholders, creditors or
employees or any other Person; (iii) neither the Administrative Agent nor either Arranger has
assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower
with respect to any of the transactions contemplated hereby or the process leading thereto,
including with respect to any amendment, waiver or other modification hereof or of any other Loan
Document (irrespective of whether the Administrative Agent or either Arranger has advised or is
currently advising the Borrower or any of its Affiliates on other matters) and neither the
Administrative Agent nor either Arranger has any obligation to the Borrower or any of its
Affiliates with respect to the transactions contemplated hereby except those obligations expressly
set forth herein and in the other Loan Documents; (iv) the Administrative Agent, each Arranger and
their respective Affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Borrower and its Affiliates, and neither the Administrative Agent nor
either Arranger has any obligation to disclose any of such interests by virtue of any advisory,
agency or fiduciary relationship; and (v) the Administrative Agent and the Arrangers have not
provided and will not provide any legal, accounting, regulatory or tax advice with respect to any
of the transactions contemplated hereby (including any amendment, waiver or other modification
hereof or of any other Loan Document) and the Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate. The Borrower hereby waives
and releases, to the fullest extent permitted by law, any claims that it may have against the
Administrative Agent or either Arranger with respect to any breach or alleged breach of agency or
fiduciary duty.



71









 





[Remainder of page is intentionally blank; signature pages follow]




72









 





          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.




	 	 	 
	 

	 	PACTIV CORPORATION
	 
	 	 
	 

	 	By: /S/ Gregory A. Hanson
	 
	 

	 	Name: Gregory A. Hanson
	 
	 

	 	Title: V.P. & Treasurer






Signature Page to

Pactiv Credit Agreement




 









 








	 	 	 
	 

	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, 
as a
Lender, the L/C Issuer and the Administrative Agent
	 
	 	 
	 

	 	By: /S/ Michael B. Kelly
	 
	 

	 	Name: Michael B. Kelly
	 
	 

	 	Title: Vice President






Signature Page to

Pactiv Credit Agreement




 









 








	 	 	 
	 

	 	BANK OF AMERICA, N.A., as a Lender
	 
	 	 
	 

	 	By: /S/ Colleen M. Briscoe
	 
	 

	 	Name: Colleen M. Briscoe
	 
	 

	 	Title: Senior Vice President






Signature Page to

Pactiv Credit Agreement




 









 








	 	 	 
	 

	 	BARCLAYS BANK PLC, as a Lender
	 
	 	 
	 

	 	By: /S/ Nicholas Bell
	 
	 

	 	Name: Nicholas Bell
	 
	 

	 	Title: Director






Signature Page to

Pactiv Credit Agreement




 









 








	 	 	 
	 

	 	LEHMAN BROTHERS COMMERCIAL
 BANK, as a Lender
	 
	 	 
	 

	 	By: /S/ George Janes
	 
	 

	 	Name: George Janes
	 
	 

	 	Title: Chief Credit Officer






Signature Page to

Pactiv Credit Agreement




 









 








	 	 	 
	 

	 	MORGAN STANLEY SENIOR FUNDING,
 INC., as a
Lender
	 
	 	 
	 

	 	By: /S/ Daniel Twenge
	 
	 

	 	Name: Daniel Twenge
	 
	 

	 	Title: Vice President






Signature Page to

Pactiv Credit Agreement




 









 








	 	 	 
	 

	 	SUNTRUST BANK, as a Lender
	 
	 	 
	 

	 	By: /S/ Michael Lapresi
	 
	 

	 	Name: Michael Lapresi
	 
	 

	 	Title: Managing Director






Signature Page to

Pactiv Credit Agreement




 









 








	 	 	 
	 

	 	WACHOVIA BANK, N.A., as a Lender
	 
	 	 
	 

	 	By: /S/ Robert G. McGill Jr.
	 
	 

	 	Name: Robert G. McGill Jr.
	 
	 

	 	Title: Director






Signature Page to

Pactiv Credit Agreement





 









 








SCHEDULE 2.01




COMMITMENTS



AND PRO RATA SHARES




	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment	 	Pro Rata Share
	     
	JPMorgan Chase Bank, National Association
	 	$	340,000,000	 	 	 	40	%
	Morgan Stanley Senior Funding, Inc.
	 	$	297,500,000	 	 	 	35	%
	 	 	   
	Bank of America, N.A.
	 	$	42,500,000	 	 	 	5	%
	 	 	   
	Barclays Bank PLC
	 	$	42,500,000	 	 	 	5	%
	 	 	   
	Lehman Brothers Commercial Bank
	 	$	42,500,000	 	 	 	5	%
	 	 	   
	SunTrust Bank
	 	$	42,500,000	 	 	 	5	%
	 	 	   
	Wachovia Bank, N.A.
	 	$	42,500,000	 	 	 	5	%
	 	 	   
	Total
	 	$	850,000,000	 	 	 	100.0	%
	 	 	   






 









 








SCHEDULE 5.12




ENVIRONMENTAL MATTERS




None.




 









 





SCHEDULE 7.02




EXISTING LIENS




None.





 









 








SCHEDULE 10.02




ADMINISTRATIVE AGENT’S OFFICE,



CERTAIN ADDRESSES FOR NOTICES




PACTIV CORPORATION:




1900 West Field Court

Lake Forest, Illinois 60045

Attention: Gregory A. Hanson

                Treasurer

Telephone: (847) 482-3835

Facsimile: (847) 482-4589

Electronic Mail: ghanson@pactiv.com

Website Address: www.pactiv.com




ADMINISTRATIVE AGENT:




Administrative Agent’s Office:




JPMorgan Chase Bank, National Association

JPMorgan Loan Services

10 South Dearborn Street, Floor 7

Chicago, Illinois 60603-2003

Attention: Mi Y Kim

Telephone: (312) 732-4853

Facsimile: (312) 385-7098

Electronic Mail: mi.y.kim@jpmchase.com




 









 





JPMORGAN CHASE BANK, NATIONAL

     ASSOCIATION, AS L/C ISSUER:



JPMorgan Chase Bank, National Association

300 South Riverside Plaza

7th Floor, Mail Code IL1-0236

Chicago, IL 60606-0236

Attention: Team Three/Evelyn Abbasi/Anne Fritz

Telephone: 312-954-1903/312-954-1849

Fax: 312-954-5986/312-954-3621

Electronic Mail: Evelyn_D_Abbasi@jpmorgan.com/Anne_W_Fritz@ jpmorgan.com

Account No. 75217657

Ref. Pactiv

ABA#071000013





 









 





EXHIBIT A




FORM OF LOAN NOTICE




Date:                     ,     




     To: JPMorgan Chase Bank, National
Association, as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of June 5, 2007 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Pactiv
Corporation, a Delaware corporation (the “Borrower”), the Lenders from time to time party
thereto, and JPMorgan Chase Bank, National Association, as Administrative Agent and the L/C Issuer.




The undersigned hereby requests (select one):




o A Borrowing of Loans      o A conversion or continuation of Loans




	 	1.	 	On                                         (a Business Day).
	 
	 	2.	 	In the amount of $                    .
	 
	 	3.	 	Comprised of                                                                          
       .

                                          [Type of Loan requested]
	 
	 	4.	 	For Eurodollar Rate Loans: with an Interest Period of                      months.





     [The Borrowing requested herein complies with the proviso to the first sentence of Section
2.01 of the Agreement.]



	 	 	 	 	 	 	 
	 	 	PACTIV CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






 









 






EXHIBIT B




FORM OF NOTE




                    




     FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
                                         or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time
to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of June 5,
2007 (as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement;” the terms defined therein being used herein as therein defined),
among the Borrower, the Lenders from time to time party thereto, and JPMorgan Chase Bank, National
Association, as Administrative Agent and the L/C Issuer.



     The Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in Dollars in immediately available funds at the
Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid
amount shall bear interest, to be paid upon demand, from the due date thereof until the date of
actual payment (and before as well as after judgment) computed at the per annum rate set forth in
the Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. Upon the occurrence and continuation of one or more of the Events of Default specified in
the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall
be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary
course of business. The Lender may also attach schedules to this Note and endorse thereon the date,
amount and maturity of its Loans and payments with respect thereto.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.



	 	 	 	 	 	 	 
	 	 	PACTIV CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






 









 






LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of	 	Outstanding	 	 
	 	 	 	 	 	 	End of	 	Principal	 	Principal	 	 
	 	 	Type of	 	Amount of	 	Interest	 	or Interest Paid	 	Balance	 	Notation
	Date	 	Loan Made	 	Loan Made	 	Period	 	This Date	 	This Date	 	Made By
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    
	                    
	 	                    	 	                    	 	                    	 	                    	 	                    	 	                    






 









 






EXHIBIT C




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                     ,      



To: JPMorgan Chase Bank, National
Association, as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of June 5, 2007 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Pactiv
Corporation, a Delaware corporation (the “Borrower”), the Lenders from time to time party
thereto, and JPMorgan Chase Bank, National Association, as Administrative Agent and the L/C Issuer.



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
                                                                            
                                             of the Borrower, and that, as such, he/she is
authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the
Borrower, and that:


[Use following paragraph 1 for fiscal year-end financial statements]




     1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of the Borrower ended as
of the above date, together with the report and opinion of an independent certified public
accountant required by such section.


[Use following paragraph 1 for fiscal quarter-end financial statements]




     1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the
above date. Such financial statements fairly present the financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such
date and for such period, subject only to normal year-end audit adjustments and the absence of
footnotes.



     2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower during the accounting period covered by the
attached financial statements.



     3. A review of the activities of the Borrower during such fiscal period has been made under
the supervision of the undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents, and



 









 





[select one:]



[to the best knowledge of the undersigned during such fiscal period, the Borrower performed and
observed each covenant and condition of the Loan Documents applicable to it.]




—or—



[the following covenants or conditions have not been performed or observed and the following is a
list of each such Default and its nature and status:]




     4. The representations and warranties of the Borrower contained in Article V of the
Agreement (other than, after the Closing Date, the representations and warranties set forth in
Section 5.05 and Section 5.11(c)), and any representations and warranties of the
Borrower that are contained in any document furnished at any time under or in connection with the
Loan Documents, are true and correct on and as of the date hereof, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this Compliance Certificate,
the representations and warranties contained in subsections (a) and (b) of Section 5.11 of
the Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 6.01 of the Agreement, including the statements in
connection with which this Compliance Certificate is delivered.



     5. The financial covenant analyses and information set forth on Schedules 2 and
3 attached hereto are true and accurate on and as of the date of this Certificate.



     IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of                     ,      .




	 	 	 	 	 	 	 
	 	 	PACTIV CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






 









 






For the Quarter/Year ended                                         “Statement Date”)





SCHEDULE 2

to the Compliance Certificate

($ in 000’s)





	I.	 	Section 7.01(a) – Minimum Interest Coverage Ratio.






	 	A.	 	Consolidated EBITDA for four consecutive fiscal quarters
ending on above date (“Subject Period”):





	 	 	 	 	 	 	 	 	 
	 

	 	 	1.	 	 	Consolidated Net Income for Subject Period
(see Schedule 3 attached hereto):
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	2.	 	 	Consolidated Interest Expense for Subject Period:
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	3.	 	 	Provision for income taxes for Subject Period:
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	4.	 	 	Depreciation expenses for Subject Period:
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	5.	 	 	Amortization expenses for Subject Period:
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	6.	 	 	Minority interest expense for Subject Period:
	 	$                    
	 
	 	 	 	 	 	 	 	 
	 

	 	 	7.	 	 	Consolidated EBITDA (Lines I.A.1 + 2 + 3 +4 + 5+ 6 ):
	 	$                    






	 	 	 	 	 	 	 
	 

	 	B.
	 	Consolidated Interest Expense for Subject Period:
	 	      $                    
	 
	 	 	 	 	 	 
	 

	 	C.
	 	Interest Coverage Ratio
(Line I.A.7 ÷ Line I.B):
	 	     to 1.00
	 
	 	 	 	 	 	 
	 

	 	 	 	Minimum required:
	 	3.50 to 1.00







	II.	 	Section 7.01(b) – Maximum Total Debt to EBITDA Ratio.





	 	 	 	 	 	 	 
	 
	 	A.	 	Total Debt at Statement Date:	 	$                    
	 
	 	 	 	 	 	 
	 
	 	B.	 	Consolidated EBITDA for Subject Period (Line I.A.7 above):	 	$                    
	 
	 	 	 	 	 	 
	 
	 	C.	 	Consolidated Leverage Ratio (Line II.A ÷ Line II.B):	 	______to 1.00
	 
	 	 	 	 	 	 
	 
	 	 	 	Maximum permitted:	 	3.50 to 1.00






 









 






For the Quarter/Year ended _______________ (“Statement Date”)




SCHEDULE 3

to the Compliance Certificate

($ in 000’s)

Consolidated Net Income

(in accordance with the definition of Consolidated Net Income

as set forth in the Agreement)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Twelve	 
	 	 	Quarter	 	 	Quarter	 	 	Quarter	 	 	Quarter	 	 	Months	 
	 	 	Ended	 	 	Ended	 	 	Ended	 	 	Ended	 	 	Ended	 
	Consolidated Net
Income per GAAP
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ non-recurring
non-cash losses and
extraordinary
non-cash losses
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	- non-recurring
non-cash gains and
extraordinary
non-cash gains
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	- cash expenditures
related to non-cash,
non-recurring losses
or non-cash,
extraordinary losses
added back to net
income during any
prior period
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 









 






EXHIBIT D




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
to and incorporated herein by reference and made a part of this Assignment and Assumption as if set
forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage interest
identified below of all of such outstanding rights and obligations of the Assignor under the
respective facilities identified below (including, without limitation, the Letters of Credit
included in such facilities) and (ii) to the extent permitted to be assigned under applicable law,
all claims, suits, causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in connection with the
Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the foregoing, including,
but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as, the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.



	 	 	 	 	 
	1.

	 	Assignor:
	 	                                                                        
        
	 
	 	 	 	 
	2.

	 	Assignee:
	 	                                                            [and is an
Affiliate/Approved Fund of [identify
Lender]]
	 
	 	 	 	 
	3.

	 	Borrower:
	 	Pactiv Corporation, a Delaware corporation
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	JPMorgan Chase Bank, National Association,

as the administrative agent under the

Credit Agreement
	 
	 	 	 	 
	5.

	 	Credit Agreement:
	 	Credit Agreement, dated as of June 5, 2007,
among Pactiv Corporation, a Delaware
corporation, the Lenders from time to time
party thereto, and JPMorgan Chase Bank,
National Association, as Administrative
Agent and the L/C Issuer






 









 







	6.	 	Assigned Interest:





	 	 	 	 	 	 	 
	Aggregate	 	 	 	 	 	 
	Amount of 	 	Amount of	 	Percentage	 	 
	Commitments	 	Commitment/	 	Assigned of	 	 
	for all Lenders*	 	Assigned*	 	Commitment	 	CUSIP Number
	 
	$                    

	 	$                    
	 	                     %	 	 
	$                    

	 	$                    
	 	                     %	 	 
	$                    

	 	$                    
	 	                     %	 	 








 




			
	*	 	Amount to be adjusted by the counterparties to take into account any payments
or prepayments made between the Trade Date and the Effective Date.






	 	 	[7. Trade Date: ___]




Effective Date:                     , 20___[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




     The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	ASSIGNOR





[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE





[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	[Consented to and] Accepted:	 	 
	 
	 	 	 	 
	JPMORGAN CHASE BANK, NATIONAL 

ASSOCIATION, as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 
	 
	 	 	 	 
	[Consented to:]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 






 









 






ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




     1. Representations and Warranties.



     1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.



     1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type
presented by the Assigned Interest and either it, or the Person exercising discretion in making its
decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it
has received a copy of the Credit Agreement and has received or has been accorded the opportunity
to receive copies of the most recent financial statements delivered pursuant to Section
6.01 thereof, as applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest, (vi) it has, independently and without reliance
on 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 Assignment and
Assumption and to purchase the Assigned Interest, and (vii) if it is a Foreign Lender, attached
hereto is any documentation required to be delivered by it pursuant to the terms of the Credit
Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it
will perform in accordance with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.



 









 





     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to the Effective Date and to the
Assignee for amounts which have accrued from and after the Effective Date.



     3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.



 









 





EXHIBIT E-1




FORM OF OPINION OF MAYER, BROWN, ROWE & MAW LLP




Attached




 









 





EXHIBIT E-2




FORM OF OPINION OF GENERAL COUNSEL OF THE BORROWER




Attached




 









 





EXHIBIT F




FORM OF REPORT OF LETTER OF CREDIT INFORMATION




	 	 	 
	To:

	 	JPMorgan Chase Bank, National Association, as Administrative Agent
	Attn:

	 	[                    ]
	Phone No.:

	 	[                    ]
	Fax No.:

	 	[                    ]
	 
	 	 
	Ref.:

	 	Outstanding Letters of Credit
Issued for the account of Pactiv Corporation
under the Credit Agreement dated as of June 5, 2007






     Reporting Period :___/___/200___through___/___/200___



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Escalating	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Maximum	 	 	Current	 	 	If	 	 	Y/N(?)	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Date of	 	 	Amount	 	 	Type of	 
	 	 	Face	 	 	Face	 	 	“Split”,	 	 	If “Y” Provide	 	 	Beneficiary	 	 	Issuance	 	 	Expiry	 	 	Amend	 	 	of	 	 	Amend	 
	L/C No.	 	Amount	 	 	Amount	 	 	Pactiv’s %	 	 	Schedule*	 	 	Name	 	 	Date	 	 	Date	 	 	-ment	 	 	Amendment	 	 	-ment	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 









 





EXHIBIT G




FORM OF LETTER OF CREDIT APPLICATION




Attached