Exhibit 10.02


 


EXECUTION
COPY




 





$500,000,000


 


 


CREDIT AGREEMENT


 


 


among


 


 


NORTHERN STATES POWER COMPANY,


 


as Borrower,


 


 


The Several Lenders from
Time to Time Parties Hereto,


 


 


THE BANK OF NEW YORK,


 


 


THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH, and


 


 


WELLS FARGO, NATIONAL ASSOCIATION


 


as Documentation Agents,


 


 


BARCLAYS BANK PLC,


 


as Syndication Agent, and


 


 


JPMORGAN CHASE BANK, N.A.,


 


as Administrative Agent


 


 


Dated as Of December 14,
2006




 





 


 


J.P. MORGAN SECURITIES INC.
and BARCLAYS CAPITAL,


 


as Joint Lead Arrangers and
Bookrunners


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
  SECTION 1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Defined Terms

  	
  1

  
	
  1.2

  	
  Other Definitional
  Provisions

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  AMOUNT
  AND TERMS OF REVOLVING COMMITMENTS

  	
  16

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Revolving Commitments

  	
  16

  
	
  2.2

  	
  Procedure for Revolving
  Loan Borrowing

  	
  17

  
	
  2.3

  	
  Fees

  	
  17

  
	
  2.4

  	
  Termination or Reduction
  of Revolving Commitments

  	
  18

  
	
  2.5

  	
  Optional Prepayments

  	
  18

  
	
  2.6

  	
  Conversion and
  Continuation Options

  	
  18

  
	
  2.7

  	
  Limitations on Eurodollar
  Tranches

  	
  19

  
	
  2.8

  	
  Interest Rates and Payment
  Dates

  	
  19

  
	
  2.9

  	
  Computation of Interest
  and Fees

  	
  19

  
	
  2.10

  	
  Inability to Determine
  Interest Rate

  	
  20

  
	
  2.11

  	
  Pro Rata Treatment and
  Payments

  	
  20

  
	
  2.12

  	
  Requirements of Law

  	
  21

  
	
  2.13

  	
  Taxes

  	
  22

  
	
  2.14

  	
  Indemnity

  	
  24

  
	
  2.15

  	
  Change of Lending Office

  	
  24

  
	
  2.16

  	
  Replacement of Lenders

  	
  25

  
	
  2.17

  	
  Extension of Revolving
  Termination Date

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  LETTERS
  OF CREDIT

  	
  26

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  L/C Commitment

  	
  26

  
	
  3.2

  	
  Procedure for Issuance of
  Letter of Credit

  	
  26

  
	
  3.3

  	
  Fees and Other Charges

  	
  27

  
	
  3.4

  	
  L/C Participations

  	
  27

  
	
  3.5

  	
  Reimbursement Obligation
  of the Borrower

  	
  28

  
	
  3.6

  	
  Obligations Absolute

  	
  28

  
	
  3.7

  	
  Letter of Credit Payments

  	
  29

  
	
  3.8

  	
  Applications

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  29

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Financial Condition

  	
  29

  
	
  4.2

  	
  No Change

  	
  29

  
	
  4.3

  	
  Existence; Compliance with
  Law

  	
  30

  
	
  4.4

  	
  Power; Authorization;
  Enforceable Obligations

  	
  30

  
	
  4.5

  	
  No Legal Bar

  	
  30

  
	
  4.6

  	
  Litigation

  	
  30

  



 

















 


	
  4.7

  	
  Ownership of Property;
  Liens

  	
  31

  
	
  4.8

  	
  Taxes

  	
  31

  
	
  4.9

  	
  Federal Regulations

  	
  31

  
	
  4.10

  	
  ERISA

  	
  31

  
	
  4.11

  	
  Investment Company Act;
  Other Regulations

  	
  32

  
	
  4.12

  	
  Use of Proceeds

  	
  32

  
	
  4.13

  	
  Accuracy of Information,
  etc

  	
  32

  
	
  4.14

  	
  Solvency

  	
  32

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  CONDITIONS
  PRECEDENT

  	
  32

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Conditions to Initial
  Extension of Credit

  	
  32

  
	
  5.2

  	
  Conditions to Each
  Extension of Credit

  	
  33

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  AFFIRMATIVE
  COVENANTS

  	
  34

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Financial Statements

  	
  34

  
	
  6.2

  	
  Certificates; Other
  Information

  	
  34

  
	
  6.3

  	
  Payment of Obligations and
  Taxes

  	
  35

  
	
  6.4

  	
  Maintenance of Existence;
  Compliance

  	
  35

  
	
  6.5

  	
  Maintenance of Property;
  Insurance

  	
  35

  
	
  6.6

  	
  Inspection of Property;
  Books and Records; Discussions

  	
  36

  
	
  6.7

  	
  Notices

  	
  36

  
	
  6.8

  	
  Ownership of Significant
  Subsidiaries

  	
  36

  
	
  6.9

  	
  Scope of Business

  	
  36

  
	
  6.10

  	
  Significant Subsidiaries

  	
  37

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  NEGATIVE
  COVENANTS

  	
  37

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Ratio of Funded Debt to
  Total Capital

  	
  37

  
	
  7.2

  	
  Liens

  	
  37

  
	
  7.3

  	
  Fundamental Changes

  	
  37

  
	
  7.4

  	
  Disposition of Property

  	
  38

  
	
  7.5

  	
  Transactions with
  Affiliates

  	
  38

  
	
  7.6

  	
  Swap Agreements

  	
  38

  
	
  7.7

  	
  Clauses Restricting
  Subsidiary Distributions

  	
  38

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  EVENTS
  OF DEFAULT

  	
  38

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  THE
  AGENTS

  	
  41

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Appointment

  	
  41

  
	
  9.2

  	
  Delegation of Duties

  	
  41

  
	
  9.3

  	
  Exculpatory Provisions

  	
  41

  
	
  9.4

  	
  Reliance by Administrative
  Agent

  	
  41

  
	
  9.5

  	
  Notice of Default

  	
  42

  
	
  9.6

  	
  Non-Reliance on Agents and
  Other Lenders

  	
  42

  
	
  9.7

  	
  Indemnification

  	
  43

  



 

















 


	
  9.8

  	
  Agent in Its Individual
  Capacity

  	
  43

  
	
  9.9

  	
  Successor Administrative
  Agent

  	
  43

  
	
  9.10

  	
  Documentation Agents and
  Syndication Agents

  	
  44

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  MISCELLANEOUS

  	
  44

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Amendments and Waivers

  	
  44

  
	
  10.2

  	
  Notices

  	
  44

  
	
  10.3

  	
  No Waiver; Cumulative
  Remedies

  	
  46

  
	
  10.4

  	
  Survival of
  Representations and Warranties

  	
  46

  
	
  10.5

  	
  Payment of Expenses and
  Taxes

  	
  46

  
	
  10.6

  	
  Successors and Assigns;
  Participations and Assignments

  	
  47

  
	
  10.7

  	
  Adjustments; Set-off

  	
  49

  
	
  10.8

  	
  Counterparts

  	
  50

  
	
  10.9

  	
  Severability

  	
  50

  
	
  10.10

  	
  Integration

  	
  50

  
	
  10.11

  	
  GOVERNING LAW

  	
  50

  
	
  10.12

  	
  Submission To
  Jurisdiction; Waivers

  	
  50

  
	
  10.13

  	
  Acknowledgements

  	
  51

  
	
  10.14

  	
  Confidentiality

  	
  51

  
	
  10.15

  	
  WAIVERS OF JURY TRIAL

  	
  52

  
	
  10.16

  	
  Delivery of Addenda

  	
  52

  
	
  10.17

  	
  USA Patriot Act Notice

  	
  52

  
	
  10.18

  	
  Existing Credit Agreement

  	
  52

  



 

















 


SCHEDULES:


 




	
  1.1A

  	
  Revolving
  Commitments

  
	
  1.1B

  	
  Existing
  Letters of Credit

  
	
  4.1

  	
  Financial
  Condition

  
	
  4.2

  	
  No
  Change

  
	
  4.6

  	
  Litigation

  
	
  4.7

  	
  Ownership
  of Property; Liens

  
	
  7.2

  	
  Existing
  Liens

  






 


EXHIBITS:


 




	
  A

  	
  Form of
  Closing Certificate

  
	
  B

  	
  Form of
  Assignment and Assumption

  
	
  C

  	
  Form of
  Exemption Certificate

  
	
  D

  	
  Form of
  Addendum

  
	
  E-1

  	
  Form of
  New Lender Supplement

  
	
  E-2

  	
  Form of
  Increased Revolving Commitment Activation Notice

  
	
  F-1

  	
  Form of Extension
  Request

  
	
  F-2

  	
  Form of Continuation
  Notice

  






 
















 


CREDIT AGREEMENT (this “Agreement”), dated as
of December 14, 2006, among NORTHERN STATES POWER COMPANY, a Minnesota
corporation (the “Borrower”), the several banks and other financial
institutions or entities from time to time parties to this Agreement (the “Lenders”),
THE BANK OF NEW YORK, THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH, and
WELLS FARGO, NATIONAL ASSOCIATION, as documentation agents (in such capacity,
the “Documentation Agents”), BARCLAYS BANK PLC, as syndication agent (in
such capacity, the “Syndication Agent”), and JPMORGAN CHASE BANK, N.A.,
as administrative agent.


 


The
parties hereto hereby agree as follows:


 


SECTION 1.           DEFINITIONS


 


1.1           Defined Terms.  As used in this Agreement, the terms listed
in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.


 


“ABR”: 
for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1⁄2 of 1%.  For purposes hereof, “Prime
Rate” shall mean the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its
principal office in New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by JPMorgan Chase Bank, N.A. in connection with
extensions of credit to debtors).  Any
change in the ABR due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.


 


“ABR Loans”: 
Revolving Loans the rate of interest applicable to which is based upon
the ABR.


 


“Addendum”: 
an instrument, substantially in the form of Exhibit D, by which a
Lender becomes a party to this Agreement as of the Closing Date.


 


“Administrative Agent”:  JPMorgan Chase Bank, N.A., together with its
affiliates, as an arranger of the Revolving Commitments and as the
administrative agent for the Lenders under this Agreement and the other Loan
Documents, together with any of its successors.


 


“Affiliate”: 
as to any Person, any other Person that, directly or indirectly, is in
Control of, is Controlled by, or is under common Control with, such Person.


 


“Agents”: 
the collective reference to the Syndication Agent, the Documentation
Agents and the Administrative Agent.


 


“Aggregate Exposure”:  with respect to any Lender at any time, an
amount equal to the amount of such Lender’s Revolving Commitment then in effect
or, if the Revolving Commitments have been terminated, the amount of such
Lender’s Revolving Extensions of Credit then outstanding.


 


“Aggregate Exposure Percentage”:  with respect to any Lender at any time, the
ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such
time to the Aggregate Exposure of all Lenders at such time.


 


“Agreement”: 
as defined in the preamble hereto.


 

















 


“Applicable Margin”:  The rate per annum set forth under the relevant
column heading below based on the applicable Debt Rating:


 


	
  Level

  	
   

  	
  Debt Rating

  	
   

  	
  Commitment

  Fee

  	
   

  	
  ABR

  Loans

  	
   

  	
  Eurodollar

  Loans/

  Letters of Credit

  	
   

  
	
  I

  	
   

  	
  >A/A2/A

  	
   

  	
  0.05

  	
  %

  	
  0

  	
  %

  	
  0.20

  	
  %

  
	
  II

  	
   

  	
  A-/A3/A-

  	
   

  	
  0.06

  	
  %

  	
  0

  	
  %

  	
  0.25

  	
  %

  
	
  III

  	
   

  	
  BBB+/Baa1/BBB+

  	
   

  	
  0.08

  	
  %

  	
  0

  	
  %

  	
  0.35

  	
  %

  
	
  IV

  	
   

  	
  BBB/Baa2/BBB

  	
   

  	
  0.10

  	
  %

  	
  0

  	
  %

  	
  0.45

  	
  %

  
	
  V

  	
   

  	
  BBB-/Baa3/BBB-

  	
   

  	
  0.125

  	
  %

  	
  0

  	
  %

  	
  0.60

  	
  %

  
	
  VI

  	
   

  	
  <BB+/Ba1/BB+

  	
   

  	
  0.175

  	
  %

  	
  0

  	
  %

  	
  0.875

  	
  %

  



 


provided that for each
Excess Utilization Day, the Applicable Margin set forth above on such day shall
be increased by 0.05% for Eurodollar Loans and Letters of Credit.


 


For
purposes of this definition, “Debt Rating” means, as of any date of
determination, the rating as determined by S&P, Moody’s or Fitch
(collectively, the “Debt Ratings”) of the Borrower’s senior unsecured
non-credit enhanced long-term indebtedness for borrowed money; provided
that (x) at any time that Debt Ratings are available from each of S&P,
Moody’s and Fitch and there is a split among such Debt Ratings, then (i) if
any two of such Debt Ratings are in the same level, such level shall apply or (ii) if
each of such Debt Ratings is in a different level, the level that is the middle
level shall apply and (y) at any time that Debt Ratings are available only
from any two of S&P, Moody’s and Fitch and there is a split in such Debt Ratings,
then the higher* of such Debt Ratings shall apply, unless there is a
split in Debt Ratings of more than one level, in which case the level that is
one level higher than the lower Debt Rating shall apply. The Debt Ratings shall
be determined from the most recent public announcement of any changes in the
Debt Ratings.  If the rating system of
S&P, Moody’s or Fitch shall change, the Borrower and the Administrative
Agent shall negotiate in good faith to amend this definition to reflect such
changed rating system and, pending the effectiveness of such amendment (which
shall require the approval of the Required Lenders), the Debt Rating shall be
determined by reference to the rating most recently in effect prior to such
change.


 


“Application”:  an application, in such form as the
applicable Issuing Lender may specify from time to time, requesting such
Issuing Lender to open a Letter of Credit.


 


“Assignee”: 
as defined in Section 10.6(b).


 


“Assignment and Assumption”:  an Assignment and Assumption, substantially
in the form of Exhibit B.


 






*   It
being understood and agreed, by way of example, that a Debt Rating of A– is one
level higher than a Debt Rating of BBB+.


 


2

















 


“Available Revolving Commitment”:  as to any Lender at any time, an amount equal
to the excess, if any, of (a) such Lender’s Revolving Commitment then in
effect over (b) such Lender’s Revolving Extensions of Credit then
outstanding.


 


“Benefitted Lender”:  as defined in Section 10.7(a).


 


“Board”: 
the Board of Governors of the Federal Reserve System of the United
States (or any successor).


 


“Borrower”: 
as defined in the preamble hereto.


 


“Borrowing Date”:  any Business Day specified by the Borrower as
a date on which the Borrower requests the Lenders to make Revolving Loans
hereunder.


 


“Business Day”:  a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by
law to close, provided, that with respect to notices and determinations
in connection with, and payments of principal and interest on, Eurodollar
Loans, such day is also a day for trading by and between banks in Dollar
deposits in the interbank eurodollar market.


 


“Capital Lease Obligations”:  as to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP and, for the
purposes of this Agreement, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.


 


“Capital Stock”:  any and
all shares, interests, participations or other equivalents (however designated)
of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or
options to purchase any of the foregoing.


 


“Change in Control”:  Xcel Energy Inc. ceasing to directly own,
beneficially and of record, 100% of each class of issued and outstanding common
stock of the Borrower free and clear of all Liens.


 


“Closing Date”:  the date on which the conditions precedent set
forth in Section 5.1 shall have been satisfied, which date is December 14,
2006.


 


“Code”: 
the Internal Revenue Code of 1986, as amended from time to time.


 


“Commodity
Swap Agreement”:  any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, commodities.


 


“Commonly Controlled Entity”:  an entity, whether or not incorporated, that
is under common control with the Borrower within the meaning of Section 4001
of ERISA or is part of a group that includes the Borrower and that is treated
as a single employer under Section 414 of the Code.


 


“Confidential Information Memorandum”:  the Confidential Information Memorandum dated
November 2006 and furnished to certain Lenders.


 


3

















 


“Continuation Notice”:  as defined in Section 2.17(a).


 


“Continuing Lender”:  as defined in Section 2.17(a).


 


“Contractual Obligation”:  as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.


 


“Control”: 
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.


 


“Debt Rating”:  as defined in the definition of “Applicable
Margin.”


 


“Default”: 
any of the events specified in Section 8, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.


 


“Designated Significant Subsidiary”:  any Significant Subsidiary designated as such
by the Borrower in accordance with Section 6.10, so long as such
designation shall not have been revoked pursuant to Section 6.10.


 


“Disposition”:  with respect to any property, any sale,
lease, sale and leaseback, conveyance, transfer or other disposition
thereof.  The terms “Dispose” and “Disposed
of” shall have correlative meanings.


 


“Documentation Agents”:  as defined in the preamble hereto.


 


“Dollars” and “$”:  dollars in lawful currency of the United
States.


 


“Environmental Laws”:  any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of
Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.


 


“ERISA”: 
the Employee Retirement Income Security Act of 1974, as amended from
time to time.


 


“Eurocurrency Reserve Requirements”:  for any day as applied to a Eurodollar Loan,
the aggregate (without duplication) of the maximum rates (expressed as a
decimal fraction) of reserve requirements in effect on such day (including
basic, supplemental, marginal and emergency reserves) under any regulations of
the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.


 


“Eurodollar Base Rate”:  with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Page 3750
of the Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. 
In the event that such rate does not appear on Page 3750 of the 


 


4

















 


Telerate screen (or
otherwise on such screen), the “Eurodollar Base Rate” shall be
determined by reference to such other comparable publicly available service for
displaying eurodollar rates as may be selected by the Administrative Agent or,
in the absence of such availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or about 11:00 A.M.,
New York City time, two Business Days prior to the beginning of such Interest
Period in the interbank eurodollar market where its eurodollar and foreign
currency and exchange operations are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised therein.


 


“Eurodollar Loans”:  Revolving Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.


 


“Eurodollar Rate”:  with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such
day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):


 




	
  Eurodollar Base Rate

  
	
  1.00 - Eurocurrency Reserve Requirements

  






 


“Eurodollar Tranche”:  the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Revolving Loans
shall originally have been made on the same day).


 


“Event of Default”:  any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.


 


“Excess Utilization Day”:  each day on which the Total Revolving
Extensions of Credit on such day exceed 50% of the Total Revolving Commitments
on such day.


 


“Existing Credit Agreement”:  the Credit Agreement, dated as of April 21,
2005, among the Borrower, JPMorgan Chase Bank, N.A., as administrative agent,
and the lenders party thereto.


 


“Existing Letters of Credit” means the
letters of credit set forth on Schedule 1.1B that have been issued prior to the
Closing Date.


 


“Extension Request”:  as defined in Section 2.17(a).


 


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


 


“Federal Power Act”:  the Federal Power Act, as amended from time
to time.


 


“Fee Payment Date”:  (a) the third Business Day following the
last day of each March, June, September and December and (b) the
last day of the Revolving Commitment Period.


 


“FERC”: 
the Federal Energy Regulatory Commission and any successor thereto.


 


5

















 


“First Mortgage Indenture” or “Indenture”:  the First Mortgage Bond Indenture dated as of
February 1, 1937 between the Borrower (by assignment from Xcel Energy Inc)
and the trustee thereunder, as previously amended and supplemented and as it
may be amended and/or supplemented from time to time.


 


“Fitch”: 
Fitch IBCA, Inc. and any successor thereto


 


“Funded Debt”:  of any Person at any date, without
duplication, (i) all indebtedness of such Person for borrowed money; (ii) the
deferred and unpaid balance of the purchase price owing by such Person on
account of any assets or services purchased (other than trade payables and
other accrued liabilities incurred in the ordinary course of business that are not
overdue by more than 180 days unless being contested in good faith) if such
purchase price is (A) due more than nine months from the date of
incurrence of the obligation in respect thereof or (B) evidenced by a note
or a similar written instrument; (iii) all Capital Lease Obligations of
such Person; (iv) all obligations of such Person evidenced by notes,
bonds, debentures or other similar written instruments; (v) any
non-contingent obligation of such Person in respect of letters of credit and
bankers’ acceptances issued for the account of such Person (other than such
letters of credit, bankers’ acceptances and drafts for the purchase price of
assets or services to the extent such purchase price is excluded from clause (ii) above);
(vi) guaranty obligations of such Person with respect to indebtedness for
borrowed money of another Person (including Affiliates); (vii) all
Off-Balance Sheet Liabilities of such Person; and (viii) all obligations
of the kind referred to in clauses (i) through (vii) above secured by
(or for which the holder of such obligation has an existing right, contingent
or otherwise, to be secured by) any Lien on property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed
or become liable for the payment of such obligation; provided, however,
that in no event shall any calculation of Funded Debt of the Borrower include
deferred taxes; provided, further, that (x) there shall be
excluded from “Funded Debt” an aggregate principal amount of Non-Recourse Debt,
Mandatorily Convertible Securities, Trust Preferred Securities and Hybrid
Equity Securities outstanding as of the last day of the immediately
preceding fiscal quarter for which financial statements are available in an
amount not to exceed 15% of Total Capital as of such date and (y) any
indebtedness arising solely from the application of either Financial
Interpretation Nos. 45 and 46 of Financial Accounting Standards Board or Issue No. 01-08
of the Emerging Issues Task Force shall not constitute “Funded Debt”.


 


“Funding Office”:  the office of the Administrative Agent
specified in Section 10.2 or such other office as may be specified from
time to time by the Administrative Agent as its funding office by written
notice to the Borrower and the Lenders.


 


“GAAP”: 
generally accepted accounting principles in the United States as in
effect from time to time; provided that in the event that any “Accounting
Change” (as defined below) shall occur and such change results in a change in
the method of calculation of financial covenants, standards or terms in this
Agreement, then (i) the Borrower and the Administrative Agent agree to
enter into negotiations in order to amend such provisions of this Agreement so
as to reflect equitably such Accounting Changes with the desired result that
the criteria for evaluating the Borrower’s financial condition shall be the
same after such Accounting Changes as if such Accounting Changes had not been
made and (ii) until such time as such an amendment shall have been
executed and delivered by the Borrower, the Administrative Agent and the
Required Lenders, all financial covenants (including those contained in Section 7.1),
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Changes had not occurred.  “Accounting Changes” refers to changes in
accounting principles required or permitted by the promulgation of any rule,
regulation, pronouncement or opinion by the Financial Accounting Standards
Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.


 


6

















 


“Governmental Authority”:  any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).


 


“Guarantee Obligation”:  as to any Person (the “guaranteeing person”),
any obligation, including a reimbursement, counterindemnity or similar
obligation, of the guaranteeing Person that guarantees or in effect guarantees,
or which is given to induce the creation of a separate obligation by another
Person (including any bank under any letter of credit) that guarantees or in
effect guarantees, any Indebtedness, leases, dividends or other obligations
(the “primary obligations”) of any other third Person (the “primary
obligor”) in any manner, whether directly or indirectly, including any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for
the purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency 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 owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or collection in the
ordinary course of business.  The amount
of any Guarantee Obligation of any guaranteeing person shall be deemed to be
the lower of (a) an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Guarantee Obligation is made
and (b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which
such guaranteeing person may be liable are not stated or determinable, in which
case the amount of such Guarantee Obligation shall be such guaranteeing person’s
maximum reasonably anticipated liability in respect thereof as determined by
the Borrower in good faith.


 


“Hybrid
Equity Securities”:  any securities
issued by the Borrower, any Subsidiary or a financing vehicle of the Borrower
or any Subsidiary that (i) are classified as possessing a minimum of “intermediate
equity content” by S&P, Basket C equity credit by Moody’s and 50% equity
credit by Fitch at the time of issuance thereof and (ii) require no repayments
or prepayments and no mandatory redemptions or repurchases, in each case, prior
to the date that is 91 days after the later of (A) the Revolving
Termination Date and (B) the date on which the Revolving Commitments are
terminated, no Letter of Credit remains outstanding and no Revolving Loan or
other amount is owing to any Lender or the Administrative Agent hereunder.


 


“Increased Revolving Commitment Activation Notice”:  a notice substantially in the form of Exhibit E-2.


 


“Increased Revolving Commitment Closing Date”:  any Business Day designated as such in an
Increased Revolving Commitment Activation Notice.


 


“Indebtedness”:  of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade payables or liabilities incurred in the
ordinary course of such Person’s business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or 


 


7

















 


sale of such property), (e) all
Capital Lease Obligations of such Person, (f) all non-contingent
obligations of such Person in respect of acceptances, letters of credit, surety
bonds or similar arrangements, (g) the liquidation value of all
mandatorily redeemable preferred Capital Stock of such Person, (h) all
Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above, and (i) all
obligations of the kind referred to in clauses (a) through (h) above
secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including
accounts and contract rights) owned by such Person, whether or not such Person
has assumed or become liable for the payment of such obligation.  The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness expressly provide
that such Person is not liable therefor. 
Notwithstanding the foregoing, any indebtedness arising solely
from the application of either Financial Interpretation Nos. 45 and 46 of
Financial Accounting Standards Board or Issue No. 01-08 of the Emerging
Issues Task Force shall not constitute “Indebtedness”.


 


“Insolvency”:  with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245
of ERISA.


 


“Insolvent”: 
pertaining to a condition of Insolvency.


 


“Interest Payment Date”:  (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such
Revolving Loan is outstanding and the Revolving Termination Date of such
Revolving Loan, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, (c) as to any
Eurodollar Loan having an Interest Period longer than three months, each day
that is three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period and (d) as to any
Revolving Loan, the date of any repayment or prepayment made in respect
thereof.


 


“Interest Period”:  as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not later than 11:00 A.M., New York City time, on the
date that is three Business Days prior to the last day of the then current
Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:


 


(i)            if
any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Business Day;


 


(ii)           the
Borrower may not select an Interest Period that would extend beyond the
Revolving Termination Date; and


 


(iii)          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 a
calendar month.


 


8

















 


“Issuing Lender”:  each of JPMorgan Chase Bank, N.A. and
Barclays Bank PLC, or any affiliate of any of the foregoing, each in its
capacity as issuer of any Letter of Credit. 
Any other Lender selected by the Borrower to be an Issuing Lender shall
become an Issuing Lender with the consent of the Administrative Agent and such
Lender, in such capacity.


 


“L/C Commitment”:  $100,000,000.


 


“L/C Obligations”:  at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit
that have not then been reimbursed pursuant to Section 3.5.


 


“L/C Participants”:  with respect to each Issuing Lender, the
collective reference to all the Lenders other than such Issuing Lender.


 


“Lenders”: 
as defined in the preamble hereto.


 


“Letters of Credit”:  letters of credit issued pursuant to Section 3.1
(and including in any case the Existing Letters of Credit).


 


“Lien”: 
any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or
any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).


 


“Loan Documents”:  this Agreement, the Notes and any amendment,
waiver, supplement or other modification to any of the foregoing.


 


“Mandatorily Convertible Securities”:  mandatorily convertible equity-linked
securities issued by the Borrower or any Subsidiary, so long as the terms of
such securities require no repayments or prepayments and no mandatory
redemptions or repurchases, in each case prior to the date that is 91 days
after the later of (A) the Revolving Termination Date and (B) the
date on which the Revolving Commitments are terminated, no Letter of Credit
remains outstanding and no Revolving Loan or other amount is owing to any
Lender or the Administrative Agent hereunder.


 


“Material Adverse Effect”:  any event, development or circumstance that
has had or could reasonably be expected to have a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of any of this Agreement or any other Loan Document or the
rights and remedies of the Administrative Agent or the Lenders hereunder and
thereunder.


 


“Material Indebtedness”:  Indebtedness (other than the Revolving Loans
and Letters of Credit), or obligations in respect of one or more Swap
Agreements or Commodity Swap Agreements, of any one or more of the Borrower and
its Significant Subsidiaries in an aggregate principal amount exceeding
$50,000,000.  For purposes of determining
Material Indebtedness, the “principal amount” of the obligations of the
Borrower or any Significant Subsidiary in respect of any Swap Agreement or any
Commodity Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such Significant
Subsidiary would be required to pay if such Swap Agreement or Commodity Swap Agreement,
as applicable, were terminated at such time.


 


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


 


9

















 


“Multiemployer Plan”:  a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.


 


“New Lender”: 
as defined in Section 2.1(c).


 


“New Lender Supplement”:  as defined in Section 2.1(c).


 


“Non-Excluded Taxes”:  as defined in Section 2.13(a).


 


“Non-Extending Lender”:  as defined in Section 2.17(a).


 


“Non-Recourse Debt”:  Indebtedness (a) which does not
constitute Indebtedness or a Guarantee Obligation of the Borrower or any
Significant Subsidiary, (b) as to which neither the Borrower nor any
Significant Subsidiary is a lender, (c) in respect of which default would
not permit (whether upon notice, lapse of time or both) any holder of any other
Indebtedness of the Borrower or any Significant Subsidiary to declare a default
on such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity, and (d) as to which the lenders will
not have any recourse to the stock or assets of the Borrower or any Significant
Subsidiary.


 


“Non-U.S. Lender”:  as defined in Section 2.13(d).


 


“Notes”: 
the collective reference to any promissory note evidencing Revolving
Loans.


 


“Obligations”:  the unpaid principal of and interest on
(including interest accruing after the maturity of the Revolving Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the
Revolving Loans and all other obligations and liabilities of the Borrower to
the Administrative Agent or to any Lender, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, any other
Loan Document, the Letters of Credit or any other document made, delivered or
given in connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including all fees, charges and disbursements of counsel to the Administrative
Agent or to any Lender that are required to be paid by the Borrower pursuant
hereto) or otherwise.


 


“Off-Balance Sheet Liability”:  of a Person, (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any Sale and
Leaseback Transaction of such Person which is not a Capital Lease Obligation
and (iii) all Synthetic Lease Obligations of such Person.  The amount of liability under a Sale and
Leaseback Transaction of any Person shall be the amount that would be shown as
a liability on a balance sheet of such Person prepared in accordance with GAAP
if such lease or agreement were accounted for as a Capital Lease Obligation.


 


“Other Taxes”:  any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.


 


“Participant”:  as defined in Section 10.6(c).


 


10
















 


“PBGC”: 
the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA (or any successor).


 


 “Permitted
Lien”:  (i) any Lien securing a
tax, assessment or other governmental charge or levy or the claim of a
materialman, mechanic, carrier, warehouseman or landlord for labor, materials,
supplies or rentals incurred in the ordinary course of business, but only if
payment thereof shall not at the time be required to be made in accordance with
Section 6.3; (ii) any Lien on the properties and assets of a
Significant Subsidiary of the Borrower securing an obligation owing to the
Borrower or another Significant Subsidiary; (iii) any Lien consisting of a
deposit or pledge made in the ordinary course of business in connection with, or
to secure payment of, obligations under workers’ compensation, unemployment
insurance, social security or retirement benefits or similar legislation; (iv) any
Lien arising pursuant to an order of attachment, distraint or similar legal
process arising in connection with legal proceedings, but only if no Event of
Default exists in respect of such order; (v) any Lien existing on (A) any
property or asset of any Person at the time such Person becomes a Subsidiary or
(B) any property or asset at the time such property or asset is acquired
by the Borrower or a Subsidiary, but only, in the case of either (A) or
(B), if and so long as (1) such Lien was not created in contemplation of
such Person becoming a Subsidiary or such property or asset being acquired, (2) such
Lien is and will remain confined to the property or asset subject to it at the
time such Person becomes a Subsidiary or such property or asset is acquired and
to improvements thereafter erected on or attached to such property or asset or
any property or asset acquired in substitution or replacement thereof, (3) such
Lien secures only the obligation secured thereby at the time such Person
becomes a Subsidiary or such property or asset is acquired and (4) the
obligation secured by such Lien is not in default; (vi) any Lien in
existence on the Closing Date to the extent set forth on Schedule 7.2, but
only, in the case of each such Lien, to the extent it secures an obligation
outstanding on the Closing Date to the extent set forth on such Schedule; (vii) any
Lien securing Purchase Money Indebtedness but only if, in the case of each such
Lien, (A) such Lien shall at all times be confined solely to the property
or asset the purchase price of which was financed through the incurrence of the
Purchase Money Indebtedness secured by such Lien and to improvements thereafter
erected on or attached to such property or asset or any property or asset
acquired in substitution or replacement thereof and (B) such Lien attached
to such property or asset within 90 days of the acquisition of such property or
asset; (viii) deposits made in the ordinary course of business to secure
the performance of bids, trade contracts (other than Indebtedness), operating
leases, surety and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business; (ix) deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements; (x) easements, reservations, rights-of-way, restrictions,
survey exceptions and other similar encumbrances as to real property which
customarily exist on properties of corporations engaged in similar activities
and similarly situated and which do not materially interfere with the conduct
of the business of the Borrower or any Significant Subsidiary conducted at the
property subject thereto; (xi) leases and subleases of property owned or leased
by the Borrower or any Significant Subsidiary not interfering with the ordinary
conduct of the business of the Borrower and the Significant Subsidiaries; (xii)
Liens securing obligations, neither assumed by the Borrower or any Significant
Subsidiary nor on account of which the Borrower or any Significant Subsidiary
customarily pays interest, upon real estate or under which any Significant
Subsidiary has a right-of-way, easement, franchise or other servitude or of
which any Significant Subsidiary is the lessee of the whole thereof or any
interest therein for the purpose of locating transmission and distribution
lines and related support structures, pipe lines, substations, measuring
stations, tanks, pumping or delivery equipment or similar equipment; (xiii)
Liens arising by virtue of any statutory or common law provision relating to
banker’s liens, rights of setoff or similar rights as to deposit accounts or other
funds maintained with a depository institution; (xiv) any Lien constituting a
renewal, extension or replacement of a Lien constituting a Permitted Lien by
virtue of clause (v), (vi), (vii) or (xvii) of this definition, but only
if (A) at the time such Lien is granted and immediately after giving
effect thereto, no Default or Event of Default would exist, (B) such Lien
is limited to all or a part of the property or asset that was subject to the
Lien so renewed, extended or replaced and to improvements 


 


11

















 


thereafter erected on or
attached to such property or asset or any property or asset acquired in
substitution or replacement thereof, (C) the principal amount of the
obligations secured by such Lien does not exceed the principal amount of the
obligations secured by the Lien so renewed, extended or replaced and (D) the
obligations secured by such Lien bear interest at a rate per annum not
exceeding the rate borne by the obligations secured by the Lien so renewed,
extended or replaced except for any increase that is commercially reasonable at
the time of such increase; (xv) Liens on any property of any Significant
Subsidiary securing Indebtedness of such Significant Subsidiary; (xvi) Liens
created and/or permitted under the First Mortgage Indenture, as such First
Mortgage Indenture exists on the
date hereof, without regard to any waiver, amendment, modification or
restatement thereof; (xvii) any Lien on any asset of any Person existing at the
time such Person is merged or consolidated with or into the Borrower or any
Significant Subsidiary and not created in contemplation thereof; and (xviii)
Liens not described in clauses (i) through (xvii), inclusive, securing
Indebtedness or other liabilities or obligations of the Borrower and/or its
Significant Subsidiaries in an aggregate principal amount outstanding not to
exceed 10% of the consolidated net worth of the Borrower and its
Subsidiaries at the time of such incurrence.


 


“Person”: 
an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.


 


“Plan”: 
at a particular time, any employee benefit plan that is covered by ERISA
and in respect of which the Borrower or a Commonly Controlled Entity is (or, if
such plan were terminated at such time, would under Section 4069 of ERISA
be deemed to be) an “employer” as defined in Section 3(5) of ERISA.


 


“Purchase Money Indebtedness”:  Indebtedness of the Borrower that is incurred
to finance part or all of (but not more than) the purchase price of a tangible
asset; provided that (i) neither the Borrower nor any Subsidiary
had at any time prior to such purchase any interest in such asset other than a
security interest or an interest as lessee under an operating lease and (ii) such
Indebtedness is incurred within 90 days after such purchase.


 


“Refinancing”:  as defined in Section 5.1(b).


 


“Register”: 
as defined in Section 10.6(b).


 


“Regulation U”:  Regulation U of the Board as in effect from
time to time.


 


“Reimbursement Obligation”:  the obligation of the Borrower to reimburse
the applicable Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.


 


“Reorganization”:  with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.


 


“Reportable Event”:  any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under PBGC Reg. § 4043.


 


“Required Lenders”:  at any time, the holders of more than 50% of
the Total Revolving Commitments then in effect or, if the Revolving Commitments
have been terminated, the Total Revolving Extensions of Credit then
outstanding.


 


“Requirement of Law”:  as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or 


 


12

















 


determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person
or any of its property is subject.


 


“Responsible Officer”:  the chief executive officer, president, chief
financial officer or treasurer of the Borrower.


 


“Revolving Commitment”:  as to any Lender, the obligation of such
Lender to make Revolving Loans and participate in Letters of Credit in an aggregate
principal and/or face amount not to exceed the amount set forth under the
heading “Revolving Commitment” opposite such Lender’s name on Schedule 1.1A or
in the Assignment and Assumption or New Lender Supplement pursuant to which
such Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof.  The
original amount of the Total Revolving Commitments is $500,000,000.


 


“Revolving Commitment Period”:  as to any Lender, the period from and
including the Closing Date to the Revolving Termination Date applicable
thereto.


 


“Revolving Extensions of Credit”:  as to any Lender at any time, an amount equal
to the sum of (a) the aggregate principal amount of all Revolving Loans
held by such Lender then outstanding and (b) such Lender’s Revolving
Percentage of the L/C Obligations then outstanding.


 


“Revolving Loans”:  as defined in Section 2.1(a).


 


“Revolving Percentage”:  as to any Lender at any time, the percentage
which such Lender’s Revolving Commitment then constitutes of the Total
Revolving Commitments or, at any time after the Revolving Commitments shall
have expired or terminated, the percentage which the aggregate principal amount
of such Lender’s Revolving Loans then outstanding constitutes of the aggregate
principal amount of the Revolving Loans then outstanding, provided,
that, in the event that the Revolving Loans are paid in full prior to the
reduction to zero of the Total Revolving Extensions of Credit, the Revolving
Percentages shall be determined in a manner designed to ensure that the
outstanding Revolving Extensions of Credit shall be held by the Lenders on a
comparable basis.


 


“Revolving Termination Date”:  December 14, 2011: provided that
with respect to Continuing Lenders only, the Revolving Termination Date may be
extended pursuant to Section 2.17.


 


“Sale and Leaseback Transaction”:  any arrangement, directly or indirectly, with
any Person whereby a seller or transferor shall sell or otherwise transfer any
real or personal property and concurrently therewith lease, or repurchase under
an extended purchase contract, conditional sales or other title retention
agreement, the same or substantially similar property.


 


“S&P”: 
Standard & Poor’s Ratings Services, a division of the McGraw
Hill Companies, Inc. or any successor thereto.


 


“SEC”: 
the Securities and Exchange Commission and any successor thereto.


 


“Significant Subsidiary”:  (a) any current or subsequently acquired
Subsidiary the total assets of which equal or exceed 15% of the consolidated
total assets of the Borrower and its Subsidiaries and (b) any Designated
Significant Subsidiary.


 


“Single Employer Plan”:  any Plan that is covered by Title IV of
ERISA, but that is not a Multiemployer Plan.


 


13

















 


“Solvent”: 
when used with respect to any Person, means that, as of any date of
determination, (a) the amount of the “present fair saleable value” of the
assets of such Person will, as of such date, exceed the amount of all “liabilities
of such Person, contingent or otherwise”, as of such date, as such quoted terms
are determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable
value of the assets of such Person will, as of such date, be greater than the
amount that will be required to pay the liability of such Person on its debts
as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they
mature.  For purposes of this definition,
(i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right
to payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (y) right to an equitable remedy
for breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or unsecured.


 


“Subsidiary”: 
as to any Person, a corporation, partnership, limited liability company
or other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management of which
is otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. 
Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries”
in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.


 


“Swap Agreement”:  any
agreement with respect to any swap, forward, future or derivative transaction
or option or similar agreement involving, or settled by reference to, one or
more interest rates, currencies, equity or debt instruments or securities,
including indices relating thereto, or any similar transaction or any
combination of these transactions; provided that no phantom stock
or similar plan providing for payments only on account of services provided by
current or former directors, officers, employees or consultants of the Borrower
or any of its Subsidiaries shall be a “Swap Agreement”.


 


“Synthetic Lease Obligation”:  the monetary obligation of a Person under (i) a
so-called synthetic or off-balance sheet or tax retention lease or (ii) 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 indebtedness of such
Person (without regard to accounting treatment).  The amount of Synthetic Lease Obligations of
any Person under any such lease or agreement shall be the amount which would be
shown as a liability on a balance sheet of such Person prepared in accordance
with GAAP if such lease or agreement were accounted for as a Capital Lease
Obligation.


 


“Syndication Agent”:  as defined in the preamble hereto.


 


“Total Capital”:  the sum of (A) stockholder’s equity,
which is the sum of common stock, premium on common stock, retained earnings
and preferred stock plus (B) Funded Debt plus (C) to
the extent not included in Funded Debt, Mandatorily Convertible
Securities, Trust Preferred Securities and Hybrid Equity Securities, in each
case as determined with respect to the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded from the calculation of “Total Capital” any non-cash effects (x) resulting
from application of Financial Accounting Standards Board Interpretation No. 48
— Accounting for Uncertainty in Income Taxes and Interpretation of FASB
Statement No. 109 and (y) resulting from application of Financial
Accounting Standards Board Statement 


 


14

















 


No. 158: Employers’
Accounting for Defined Pension and Other Postretirement Plans, an amendment of
FASB Statements No. 87, 88, 106, and 132(R).


 


“Total Revolving Commitments”:  at any time, the aggregate amount of the
Revolving Commitments then in effect.


 


“Total Revolving Extensions of Credit”:  at any time, the aggregate amount of the
Revolving Extensions of Credit of the Lenders outstanding at such time.


 


“Transferee”: 
any Assignee or Participant.


 


“Trust Preferred Securities”: 
any preferred securities issued by a Trust Preferred Securities
Subsidiary, where such preferred securities have the following characteristics:


 


(i)            such Trust Preferred Securities Subsidiary lends
substantially all of the proceeds from the issuance of such preferred
securities to the Borrower or a wholly-owned direct or indirect Subsidiary of
the Borrower in exchange for subordinated debt issued by the Borrower or such
wholly-owned direct or indirect Subsidiary, respectively;


 


(ii)           such
preferred securities contain terms providing for the deferral of interest
payments corresponding to provisions providing for the deferral of interest
payments on the subordinated debt; and


 


(iii)          the
Borrower or a wholly-owned direct or indirect Subsidiary of the Borrower (as
the case may be) makes periodic interest payments on the subordinated debt,
which interest payments are in turn used by the Trust Preferred Securities
Subsidiary to make corresponding payments to the holders of such preferred
securities.


 


“Trust Preferred
Securities Subsidiary”:  any Delaware
business trust (or similar entity) (i) all of the common equity interest
of which is owned (either directly or indirectly through one or more Wholly
Owned Subsidiaries of the Borrower) at all times by the Borrower, (ii) that
has been formed for the purpose of issuing Trust Preferred Securities and (iii) substantially
all of the assets of which consist at all times solely of subordinated debt
issued by the Borrower or a wholly-owned direct or indirect Subsidiary of the
Borrower (as the case may be) and payments made from time to time on such
subordinated debt..


 


“Type”: 
as to any Revolving Loan, its nature as an ABR Loan or a Eurodollar
Loan.


 


“United States”:  the United States of America.


 


“Wholly Owned Subsidiary”:  as to any Person, any other Person all of the
Capital Stock of which (other than directors’ qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.


 


1.2           Other Definitional Provisions.  (a) Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when used
in the other Loan Documents or any certificate or other document made or
delivered pursuant hereto or thereto.


 


(b)  As used herein and
in the other Loan Documents, and any certificate or other document made or
delivered pursuant hereto or thereto, (i) accounting terms relating to the
Borrower not defined in Section 1.1 and accounting terms partly defined in
Section 1.1, to the extent not defined, shall 


 


15

















 


have the respective meanings given to them under GAAP, (ii) the
words “include”, “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”, (iii) the word “incur” shall be construed
to mean incur, create, issue, assume, become liable in respect of or suffer to
exist (and the words “incurred” and “incurrence” shall have correlative
meanings), (iv) the words “asset” and “property” shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, Capital Stock, securities,
revenues, accounts, leasehold interests and contract rights, and (v) references
to agreements or other Contractual Obligations shall, unless otherwise
specified, be deemed to refer to such agreements or Contractual Obligations as
amended, supplemented, restated or otherwise modified from time to time.


 


(c)  The words “hereof”,
“herein” and “hereunder” and words of similar import, when used in this
Agreement, shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, Schedule and Exhibit references
are to this Agreement unless otherwise specified.


 


(d)  The meanings given
to terms defined herein shall be equally applicable to both the singular and
plural forms of such terms.


 


SECTION 2.           AMOUNT
AND TERMS OF REVOLVING COMMITMENTS


 


2.1           Revolving
Commitments. (a) Subject to the terms and conditions hereof, each
Lender severally agrees to make revolving credit loans (“Revolving Loans”)
to the Borrower from time to time during the Revolving Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to such
Lender’s Revolving Percentage of the L/C Obligations then outstanding, does not
exceed the amount of such Lender’s Revolving Commitment.  During the Revolving Commitment Period the
Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving
Loans in whole or in part, and reborrowing, all in accordance with the terms
and conditions hereof.  The Revolving
Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by
the Borrower and notified to the Administrative Agent in accordance with
Sections 2.2 and 2.6.


 


(b) At any time
prior to the fourth anniversary of the Closing Date, the Borrower and any one
or more Lenders (including New Lenders) may agree that such Lender(s) shall
make, obtain or increase the amount of their Revolving Commitments by executing
and delivering to the Administrative Agent an Increased Revolving Commitment
Activation Notice specifying the amount of such increase and the applicable
Increased Revolving Commitment Closing Date (which may be no later than the
fourth anniversary of the Closing Date). 
Notwithstanding the foregoing, (i) the aggregate amount of
incremental Revolving Commitments obtained pursuant to this Section 2.1(b) shall
not exceed $100,000,000, (ii) incremental Revolving Commitments may not be
made, obtained or increased after the occurrence and during the continuation of
a Default or Event of Default, including after giving effect to the incremental
Revolving Commitments in question, (iii) the increase effected pursuant to
this paragraph shall be in a minimum amount of at least $25,000,000 and (iv) no
more than one Increased Revolving Commitment Closing Date may be selected by
the Borrower during the term of this Agreement. 
No Lender shall have any obligation to participate in any increase
described in this paragraph unless it agrees to do so in its sole discretion.


 


(c) Any additional
bank, financial institution or other entity which, with the consent of the
Borrower and the Administrative Agent (which consent shall not be unreasonably
withheld), elects to become a “Lender” under this Agreement in connection with
an increase described in Section 2.1(b) shall execute a New Lender
Supplement (each, a “New Lender Supplement”), substantially in the form
of Exhibit E-1, whereupon such bank, financial institution or other entity
(a “New Lender”) shall become a


 


16

















 


Lender for all purposes
and to the same extent as if originally a party hereto and shall be bound by
and entitled to the benefits of this Agreement.


 


(d) On each
Increased Revolving Commitment Closing Date on which there are Revolving Loans
outstanding, the New Lender(s) and/or Lender(s) that have increased
their Revolving Commitments shall make Revolving Loans, the proceeds of which will
be used to prepay the Revolving Loans of other Lenders, so that, after giving
effect thereto, the resulting Revolving Loans outstanding are allocated among
the Lenders in accordance with Section 2.11(a) based on the
respective Revolving Percentages of the Lenders after giving effect to such
Increased Revolving Commitment Closing Date.


 


(e) The Borrower shall
repay the outstanding Revolving Loans of each Lender on the Revolving
Termination Date applicable to such Lender.


 


2.2           Procedure for Revolving Loan
Borrowing.   The Borrower may borrow
under the Revolving Commitments during the Revolving Commitment Period on any
Business Day, provided that the Borrower shall give the Administrative
Agent irrevocable notice (which notice must be received by the Administrative
Agent prior to 11:00 A.M., New York City time, (a) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans
(or, with respect to any Eurodollar Loans to be made on the Closing Date, such
shorter time period as may be agreed by the Administrative Agent) or (b) on
the requested Borrowing Date, in the case of ABR Loans), specifying (i) the
amount and Type of Revolving Loans to be borrowed, (ii) the requested
Borrowing Date and (iii) in the case of Eurodollar Loans, the respective
lengths of the initial Interest Period therefor.  Each borrowing under the Revolving
Commitments shall be in an amount equal to (x) in the case of ABR Loans,
$1,000,000 or a whole multiple thereof (or, if the then aggregate Available
Revolving Commitments are less than $1,000,000, such lesser amount) and (y) in
the case of Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in
excess thereof.  Upon receipt of any such
notice from the Borrower, the Administrative Agent shall promptly notify each
Lender thereof.  Each Lender will make
the amount of its pro  rata share of each borrowing available to
the Administrative Agent for the account of the Borrower at the Funding Office
prior to 12:00 Noon, New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent.  Such borrowing will then be made available to
the Borrower by the Administrative Agent crediting the account of the Borrower
on the books of such office with the aggregate of the amounts made available to
the Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.


 


2.3           Fees.  (a)  The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee for the
period from and including the date hereof to the last day of the Revolving
Commitment Period applicable thereto, computed at the Applicable Margin on the
average daily amount of the Available Revolving Commitment of such Lender
during the period for which payment is made, payable quarterly in arrears on
each Fee Payment Date.


 


(b)  The Borrower
agrees to pay to the Administrative Agent the fees in the amounts and on the
dates as set forth in any fee agreements with the Administrative Agent and to
perform any other obligations contained therein.


 


2.4           Termination or Reduction of
Revolving Commitments.  The Borrower
shall have the right, upon not less than three Business Days’ notice to the
Administrative Agent, to terminate the Revolving Commitments or, from time to
time, to reduce the amount of the Revolving Commitments; provided that
no such termination or reduction of Revolving Commitments shall be permitted
if, after giving effect thereto and to any prepayments of the Revolving Loans
made on the effective date thereof, the Total Revolving Extensions of Credit
would exceed the Total Revolving Commitments. 
Any such reduction shall be in an amount equal to $1,000,000, or a whole
multiple thereof, and shall reduce


 


17

















 


permanently the
Revolving Commitments then in effect. 
Following an Extension Request pursuant to Section 2.17, the
Borrower may terminate the Revolving Commitments of the Non-Extending Lenders; provided
that the Borrower shall prepay the Revolving Loans of such Non-Extending
Lenders on the effective date of such termination, together with accrued but
unpaid interest and fees thereon and all other amounts then payable hereunder
to such Non-Extending Lenders.


 


2.5           Optional Prepayments.  The Borrower may at any time and from time to
time prepay the Revolving Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent no later
than 11:00 A.M., New York City time, three Business Days prior thereto, in
the case of Eurodollar Loans, and no later than 11:00 A.M., New York City
time, on the prepayment date, in the case of ABR Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable
thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.14.  Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof.  If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified
therein, together with accrued interest to such date on the amount
prepaid.  Partial prepayments of
Revolving Loans shall be in an aggregate principal amount of $1,000,000 or a
whole multiple thereof.


 


2.6           Conversion and Continuation
Options.  (a)   The Borrower may elect from time to time to
convert Eurodollar Loans to ABR Loans by giving the Administrative Agent prior
irrevocable notice of such election no later than 11:00 A.M., New York
City time, on the Business Day preceding the proposed conversion date, provided
that any such conversion of Eurodollar Loans may only be made on the last day of
an Interest Period with respect thereto. 
The Borrower may elect from time to time to convert ABR Loans to
Eurodollar Loans by giving the Administrative Agent prior irrevocable notice of
such election no later than 11:00 A.M., New York City time, on the third
Business Day preceding the proposed conversion date (which notice shall specify
the length of the initial Interest Period therefor), provided that no
ABR Loan may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing and the Administrative Agent or the Required Lenders
have determined in its or their sole discretion not to permit such
conversions.  Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof.


 


(b)  Any Eurodollar
Loan may be continued as such upon the expiration of the then current Interest
Period with respect thereto by the Borrower giving irrevocable notice to the
Administrative Agent, in accordance with the applicable provisions of the term “Interest
Period” set forth in Section 1.1, of the length of the next Interest
Period to be applicable to such Revolving Loans, provided that no
Eurodollar Loan may be continued as such when any Event of Default has occurred
and is continuing and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such continuations,
and provided, further, that if the Borrower shall fail to give
any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Revolving
Loans shall be automatically converted to ABR Loans on the last day of such
then expiring Interest Period.  Upon
receipt of any such notice the Administrative Agent shall promptly notify each Lender
thereof.


 


2.7           Limitations on Eurodollar Tranches.  Notwithstanding anything to the contrary in
this Agreement, all borrowings, conversions and continuations of Eurodollar
Loans and all selections of Interest Periods shall be in such amounts and be made
pursuant to such elections so that, (a) after giving effect thereto, the
aggregate principal amount of the Eurodollar Loans comprising each Eurodollar
Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in
excess thereof and (b) no more than ten Eurodollar Tranches shall be
outstanding at any one time.


 


18

















 


2.8           Interest Rates and Payment Dates.  (a)  
Each Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable Margin.


 


(b)  Each ABR Loan
shall bear interest at a rate per annum equal to the ABR plus the Applicable
Margin.


 


(c)  (i) If all or
a portion of the principal amount of any Revolving Loan or Reimbursement
Obligation shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), all outstanding Revolving Loans and Reimbursement
Obligations (whether or not overdue) shall bear interest at a rate per annum
equal to (x) in the case of the Revolving Loans, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this Section plus
2% or (y) in the case of Reimbursement Obligations, the rate applicable to
ABR Loans plus 2%, and (ii) if all or a portion of any interest
payable on any Revolving Loan or Reimbursement Obligation or any commitment fee
or other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to ABR Loans plus
2%, in each case, with respect to clauses (i) and (ii) above, from
the date of such non-payment until such amount is paid in full (as well after
as before judgment).


 


(d)  Interest shall be
payable in arrears on each Interest Payment Date, provided that interest
accruing pursuant to paragraph (c) of this Section shall be payable
from time to time on demand.


 


2.9           Computation of Interest and Fees.  (a)  
Interest and fees payable pursuant hereto shall be calculated on the
basis of a 360-day year for the actual days elapsed, except that, with respect
to ABR Loans the rate of interest on which is calculated on the basis of the Prime
Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed.  The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate.  Any change in the
interest rate on a Revolving Loan resulting from a change in the ABR or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective.  The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of the effective date and the
amount of each such change in interest rate.


 


(b)  Each determination
of an interest rate by the Administrative Agent pursuant to any provision of
this Agreement shall be conclusive and binding on the Borrower and the Lenders
in the absence of manifest error.  The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.8(a).


 


2.10         Inability to Determine Interest Rate.  If prior to the first day of any Interest
Period, the Administrative Agent shall give telecopy or telephonic notice
thereof to the Borrower and the Lenders that:


 


(a)   the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or


 


(b)           the
Administrative Agent shall have received notice from the Required Lenders that
the Eurodollar Rate determined or to be determined for such Interest Period
will not adequately


 


19

















 


and fairly reflect
the cost to such Lenders (as conclusively certified by such Lenders) of making
or maintaining their affected Revolving Loans during such Interest Period,


 


then (x) any Eurodollar Loans requested to be
made on the first day of such Interest Period shall be made as ABR Loans, (y) any
Revolving Loans that were to have been converted on the first day of such
Interest Period to Eurodollar Loans shall be continued as ABR Loans and (z) any
outstanding Eurodollar Loans shall be converted, on the last day of the
then-current Interest Period, to ABR Loans. 
Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans shall be made or continued as such, nor shall the
Borrower have the right to convert Revolving Loans to Eurodollar Loans.


 


2.11         Pro Rata Treatment and Payments.  (a)  
Except as otherwise expressly provided herein, each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee and any reduction of the Revolving Commitments of the
Lenders shall be made pro  rata according to the respective
Revolving Percentages of the Lenders.


 


(b)  Except as
otherwise expressly provided herein, each payment (including each prepayment)
by the Borrower on account of principal of and interest on the Revolving Loans
shall be made pro  rata according to the respective outstanding
principal amounts of the Revolving Loans then held by the Lenders.


 


(c)  All payments (including
prepayments) to be made by the Borrower hereunder, whether on account of
principal, interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders,
at the Funding Office, in Dollars and in immediately available funds.  The Administrative Agent shall distribute
such payments to the Lenders promptly upon receipt in like funds as
received.  If any payment hereunder
(other than payments on the Eurodollar Loans) becomes due and payable on a day
other than a Business Day, such payment shall be extended to the next
succeeding Business Day.  If any payment
on a Eurodollar Loan becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next succeeding Business Day
unless the result of such extension would be to extend such payment into
another calendar month, in which event such payment shall be made on the immediately
preceding Business Day.  In the case of
any extension of any payment of principal pursuant to the preceding two
sentences, interest thereon shall be payable at the then applicable rate during
such extension.


 


(d)  Unless the
Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its
share of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such amount
available to the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount.  If such amount is not made
available to the Administrative Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Administrative Agent, on demand,
such amount with interest thereon, at a rate equal to the greater of (i) the
Federal Funds Effective Rate and (ii) a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation,
for the period until such Lender makes such amount immediately available to the
Administrative Agent.  A certificate of
the Administrative Agent submitted to any Lender with respect to any amounts
owing under this paragraph shall be conclusive in the absence of manifest
error.  If such Lender’s share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days after such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to ABR Loans, on demand, from the
Borrower.  Nothing herein shall be deemed
to limit the rights of the Borrower against such Lender.


 


20
















 


(e)  Unless the
Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment due to be made by the Borrower hereunder that the
Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective shares of a
corresponding amount.  If such payment is
not made to the Administrative Agent by the Borrower within three Business Days
after such due date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate.  Nothing herein shall be deemed to limit the
rights of the Administrative Agent or any Lender against the Borrower.


 


2.12         Requirements of Law.  (a)  
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:


 


(i) 
shall subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any Application or any Eurodollar Loan made by
it, or change the basis of taxation of payments to such Lender in respect
thereof (except, in each case, for Non-Excluded Taxes covered by Section 2.13
and changes in the rate of tax on the overall net income of such Lender);


 


(ii) 
shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, deposits or
other liabilities in or for the account of, advances, loans or other extensions
of credit by, or any other acquisition of funds by, any office of such Lender
that is not otherwise included in the determination of the Eurodollar Rate; or


 


(iii)    shall impose on such Lender any other
condition;


 


and the result of any of the foregoing is to increase the cost to such
Lender, by an amount that such Lender deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans or issuing or
participating in Letters of Credit, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall pay
such Lender, reasonably promptly after its demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable.  If any Lender becomes
entitled to claim any additional amounts pursuant to this paragraph, it shall
promptly notify the Borrower (with a copy to the Administrative Agent) of the
event by reason of which it has become so entitled, setting forth in reasonable
detail the calculations upon which such Lender determined such amounts.


 


(b)  If any Lender
shall have determined that the adoption of or any change in any Requirement of
Law regarding capital adequacy or in the interpretation or application thereof
or compliance by such Lender or any corporation controlling such Lender with
any request or directive regarding capital adequacy (whether or not having the
force of law) from any Governmental Authority made subsequent to the date
hereof shall have the effect of reducing the rate of return on such Lender’s or
such corporation’s capital as a consequence of its obligations hereunder or
under or in respect of any Letter of Credit to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender’s or such corporation’s
policies with respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time, after submission by such Lender to the
Borrower (with a copy to the Administrative Agent)


 


21

















 


of a written request therefor setting forth in reasonable detail the
calculations upon which such Lender determined such amounts, the Borrower shall
pay to such Lender reasonably promptly after such submission such additional
amount or amounts as will compensate such Lender or such corporation for such
reduction.


 


(c)  A certificate as
to any additional amounts payable pursuant to this Section submitted by
any Lender to the Borrower (with a copy to the Administrative Agent) shall be
conclusive in the absence of manifest error. 
Notwithstanding anything to the contrary in this Section, the Borrower
shall not be required to compensate a Lender pursuant to this Section for
any amounts incurred more than six months prior to the date that such Lender
notifies the Borrower of such Lender’s intention to claim compensation
therefor; provided that, if within such six-month period circumstances
occur that give rise to such claim having a retroactive effect, then such
six-month period shall be extended to include the period of such retroactive
effect.  The obligations of the Borrower
pursuant to this Section shall survive the termination of this Agreement
and the payment of the Revolving Loans and all other amounts payable hereunder.


 


2.13         Taxes.  (a) All payments made by the Borrower
under this Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any other Loan Document).  If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded
Taxes”) or Other Taxes are required to be withheld from any amounts payable
to the Administrative Agent or any Lender hereunder, the amounts so payable to
the Administrative Agent or such Lender shall be increased to the extent
necessary to yield to the Administrative Agent or such Lender (after payment of
all Non-Excluded Taxes and Other Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrower shall not be required to increase any such
amounts payable to any Lender with respect to any Non-Excluded Taxes (i) that
are attributable to such Lender’s failure to comply with the requirements of
paragraph (d) or (e) of this Section or (ii) that are
United States withholding taxes imposed on amounts payable to such Lender at
the time such Lender becomes a party to this Agreement, except to the extent
that such Lender’s assignor (if any) was entitled, at the time of assignment,
to receive such additional amounts from the Borrower with respect to such
Non-Excluded Taxes pursuant to this paragraph, so long as such additional
amounts payable by the Borrower are not increased thereby.


 


(b)  In addition, the
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.


 


(c)  Whenever any
Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Administrative Agent for its
own account or for the account of the relevant Lender, as the case may be, a
certified copy of an original official receipt received by the Borrower showing
payment thereof or such other evidence of payment as is reasonably satisfactory
to the Administrative Agent.  If the
Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other documentary evidence, the Borrower shall indemnify
the


 


22

















 


Administrative Agent and the Lenders for any incremental Non-Excluded
Taxes, interest or penalties that may become payable by the Administrative
Agent or any Lender as a result of any such failure.


 


(d)   Each Lender (or Transferee) that is not a “U.S.
Person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S.
Lender”) shall deliver to the Borrower and the Administrative Agent (or, in
the case of a Participant, to the Lender from which the related participation
shall have been purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN
or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of “portfolio interest”, a statement
substantially in the form of Exhibit C and a Form W-8BEN, or any
subsequent versions thereof or successors thereto, properly completed and duly
executed by such Non-U.S. Lender claiming complete exemption from, or a reduced
rate of, U.S. federal withholding tax on all payments by the Borrower under
this Agreement and the other Loan Documents. 
Such forms shall be delivered by each Non-U.S. Lender on or before the
date it becomes a party to this Agreement (or, in the case of any Participant,
on or before the date such Participant purchases the related
participation).  In addition, each
Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or invalidity
of any form previously delivered by such Non-U.S. Lender.  Each Non-U.S. Lender shall promptly notify
the Borrower at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such purpose).  Notwithstanding any other provision of this
paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver.


 


(e)  A Lender that is
entitled to an exemption from or reduction of non-U.S. withholding tax under
the law of the jurisdiction in which the Borrower is located, or any treaty to
which such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is legally
entitled to complete, execute and deliver such documentation and in such Lender’s
judgment such completion, execution or submission would not materially
prejudice the legal position of such Lender.


 


(f)  If the Administrative Agent or any Lender
determines, in its sole discretion, that it has received a refund of any
Non-Excluded 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 2.13, it shall pay over such refund to the
Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 2.13 with respect to the
Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all
associated out-of-pocket expenses of the Administrative Agent or such Lender
and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the Borrower,
upon the request of the Administrative Agent or such Lender, shall repay the
amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent or
such Lender in the event the Administrative Agent or such Lender is required to
repay such refund to such Governmental Authority. This paragraph shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.


 


(g)  The agreements in
this Section shall survive the termination of this Agreement and the payment
of the Revolving Loans and all other amounts payable hereunder.


 


23

















 


2.14         Indemnity.  The Borrower agrees to indemnify each Lender
for, and to hold each Lender harmless from, any loss or expense that such
Lender may sustain or incur as a consequence of (a) default by the
Borrower in making a borrowing of, conversion into or continuation of
Eurodollar Loans after the Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement, (b) default by the
Borrower in making any prepayment of or conversion from Eurodollar Loans after
the Borrower has given a notice thereof in accordance with the provisions of
this Agreement or (c) the making of a prepayment of Eurodollar Loans on a
day that is not the last day of an Interest Period with respect thereto.  Such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have commenced
on the date of such failure) in each case at the applicable rate of interest
for such Revolving Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of
interest (as reasonably determined by such Lender) that would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank eurodollar market.  A certificate as to any amounts payable
pursuant to this Section submitted to the Borrower by any Lender shall be
conclusive in the absence of manifest error. 
This covenant shall survive the termination of this Agreement and the
payment of the Revolving Loans and all other amounts payable hereunder.


 


2.15         Change of Lending Office.  Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 2.12 or 2.13(a) with
respect to such Lender, it will use reasonable efforts (subject to overall
policy considerations of such Lender) to designate another lending office for
any Revolving Loans affected by such event with the object of avoiding the
consequences of such event; provided, that such designation is made on
terms that, in the sole judgment of such Lender, cause such Lender and its
lending office(s) to suffer no economic, legal or regulatory disadvantage,
and provided, further, that nothing in this Section shall
affect or postpone any of the obligations of the Borrower or the rights of any
Lender pursuant to Section 2.12 or 2.13(a).


 


2.16         Replacement of Lenders.  The Borrower shall be permitted to replace
any Lender that (a) requests reimbursement for amounts owing pursuant to Section 2.12
or 2.13(a), (b) defaults in its obligation to make Revolving Loans
hereunder or (c) is a Non-Extending Lender, with a replacement financial
institution or other entity; provided that (i) such replacement
does not conflict with any Requirement of Law, (ii) no Event of Default
shall have occurred and be continuing at the time of such replacement, (iii) in
the case of clause (a) above, prior to any such replacement, such Lender
shall have taken no action under Section 2.15 so as to eliminate the
continued need for payment of amounts owing pursuant to Section 2.12 or
2.13(a), (iv) the replacement financial institution shall purchase, at
par, all Revolving Loans and other amounts owing to such replaced Lender on or
prior to the date of replacement, (v) the Borrower shall be liable to such
replaced Lender under Section 2.14 if any Eurodollar Loan owing to such
replaced Lender shall be purchased other than on the last day of the Interest
Period relating thereto, (vi) the replacement financial institution, if
not already a Lender, shall be reasonably satisfactory to the Administrative
Agent, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 10.6 (provided
that the Borrower shall be obligated to pay the registration and processing fee
referred to therein), (viii) until such time as such replacement shall be
consummated, the Borrower shall pay all additional amounts (if any) required
pursuant to Section 2.12 or 2.13(a), as the case may be, and (ix) any
such replacement shall not be deemed to be a waiver of any rights that the
Borrower, the Administrative Agent or any other Lender shall have against the
replaced Lender.


 


2.17         Extension of Revolving Termination
Date.  (a) The Borrower may, by
written notice to the Administrative Agent in the form of Exhibit F-1 (an “Extension Request”) given no
earlier


 


24

















 


than the first
anniversary of the Closing Date but no later than 60 days prior to the then
applicable Revolving Termination Date, request that the then applicable
Revolving Termination Date be extended to the date that is one calendar year
after the then applicable Revolving Termination Date.  Such extension shall be effective with
respect to each Lender that, by a written notice in the form of Exhibit F-2
(a “Continuation Notice”)
to the Administrative Agent given no later than 30 days after the applicable
Extension Request is given by the Borrower (or such later date as the Borrower
shall specify in such Extension Request) (the “Extension Request Response
Date”), consents, in its sole discretion, to such extension (each Lender
giving a Continuation Notice being referred to herein as a “Continuing Lender” and each Lender
other than a Continuing Lender being referred to herein as a “Non-Extending Lender”), provided that (i) such extension shall be
effective only if the aggregate Revolving Commitments of the Continuing Lenders
constitute at least a majority of the Total Revolving Commitments on the date
of the Extension Request, (ii) any Lender that fails to submit a
Continuation Notice on or before the applicable Extension Request Response Date
shall be deemed not to have consented to such extension and shall constitute a
Non-Extending Lender and (iii) the Borrower may give only two Extension
Requests during the term of this Agreement. 
No Lender shall have any obligation to consent to any extension of the
Revolving Termination Date.  The
Administrative Agent shall notify each Lender of the receipt of an Extension
Request promptly after receipt thereof. 
The Administrative Agent shall notify the Borrower and the Lenders no
later than five days after the applicable Extension Request Response Date
whether the Administrative Agent has received Continuation Notices from Lenders
holding Revolving Commitments aggregating at least a majority of the Total
Revolving Commitments on the date of the applicable Extension Request.


 


(b) The Revolving
Commitment of each Non-Extending Lender shall terminate at the close of
business on the Revolving Termination Date in effect prior to the delivery of
such Extension Request without giving any effect to such proposed
extension.  In accordance with Section 2.1(e),
on such Revolving Termination Date, the Borrower shall pay to the
Administrative Agent, for the account of each Non-Extending Lender, an amount
equal to such Non-Extending Lender’s Revolving Loans, together with accrued but
unpaid interest and fees thereon and all other amounts then payable hereunder
to such Non-Extending Lender.  If,
however, on or before the date which is 10 days prior to the Revolving
Termination Date in effect prior to the delivery of an Extension Request
pursuant to this Section 2.17, the Borrower obtains a replacement Lender
pursuant to Section 2.16 for any such Non-Extending Lender and such
replacement Lender agrees to the extension of the Revolving Termination Date
pursuant to this Section 2.17, then such replacement Lender shall for all
purposes of this Section 2.17 and this Agreement be deemed to be a
Continuing Lender, and the Revolving Loans of such Lender shall not be due and
payable pursuant to this Section 2.17(b).


 


SECTION 3.           LETTERS
OF CREDIT


 


3.1           L/C Commitment.  (a) Subject to the terms and conditions
hereof, each Issuing Lender, in reliance on the agreements of the other Lenders
set forth in Section 3.4(a), agrees to issue Letters of Credit for the
account of the Borrower on any Business Day during the Revolving Commitment
Period in such form as may be approved from time to time by such Issuing
Lender; provided that no Issuing Lender shall issue any Letter of Credit
if, (i) after giving effect to such issuance, (A) the L/C Obligations
would exceed the L/C Commitment or (B) the aggregate amount of the
Available Revolving Commitments would be less than zero or (ii) such
Issuing Lender shall have received written notice from 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 Section 5.2 shall not have been
satisfied.  On the Closing Date, each
Existing Letter of Credit shall be deemed to be a Letter of Credit issued
hereunder for the account of the Borrower. 
Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire
no later than the earlier of (x) the first anniversary of its date of issuance
and (y) the date that is five Business Days prior to the Revolving


 


25

















 


Termination Date
(as it may be extended), provided that any Letter of Credit with a
one-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in clause (y) above).


 


(b)  No Issuing Lender
shall at any time be obligated to issue any Letter of Credit if such issuance
would conflict with, or cause such Issuing Lender or any L/C Participant to
exceed any limits imposed by, any applicable Requirement of Law.


 


3.2           Procedure for Issuance of Letter
of Credit.  The Borrower may from
time to time request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender at its address set forth in its Issuing
Lender Agreement an Application therefor, completed to the satisfaction of such
Issuing Lender, and such other certificates, documents and other papers and
information as such Issuing Lender may request. 
Upon receipt of any Application, such Issuing Lender will process such
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested thereby (but
in no event shall an Issuing Lender be required to issue any Letter of Credit
earlier than three Business Days after its receipt of the Application therefor
and all such other certificates, documents and other papers and information
relating thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed to by such Issuing Lender and
the Borrower.  Such Issuing Lender shall
furnish a copy of such Letter of Credit to the Borrower promptly following the
issuance thereof.  The applicable Issuing
Lender shall promptly furnish to the Administrative Agent, which shall in turn
promptly furnish to the Lenders, notice of the issuance of each Letter of
Credit (including the amount thereof).


 


3.3           Fees and Other Charges.  (a) The Borrower will pay a fee on all
outstanding Letters of Credit at a per annum rate equal to the Applicable
Margin then in effect with respect to Eurodollar Loans, shared ratably among
the Lenders and payable quarterly in arrears on each Fee Payment Date after the
issuance date.  In addition, the Borrower
shall pay to the applicable Issuing Lender for its own account a fronting fee
for each Letter of Credit requested by the Borrower in such amount and at such
times as may be set forth in a separate letter agreement between the Borrower
and such Issuing Lender (each, an “Issuing Lender Agreement”), which
shall contain such Issuing Lender’s address for notices..


 


(b)   In addition to the foregoing fees, the
Borrower shall pay or reimburse each Issuing Lender for such normal and
customary costs and expenses as are incurred or charged by such Issuing Lender
in issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit.


 


3.4           L/C Participations.  (a)  Each Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce such
Issuing Lender to issue Letters of Credit, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from such
Issuing Lender, on the terms and conditions set forth below, for such L/C
Participant’s own account and risk an undivided interest equal to such L/C
Participant’s Revolving Percentage in such Issuing Lender’s obligations and
rights under and in respect of each Letter of Credit and the amount of each
draft paid by such Issuing Lender thereunder. 
Each L/C Participant agrees with each Issuing Lender that, if a draft is
paid under any Letter of Credit for which such Issuing Lender is not reimbursed
in full by the Borrower in accordance with the terms of this Agreement, such
L/C Participant shall pay to such Issuing Lender upon demand at such Issuing
Lender’s address for notices specified herein an amount equal to such L/C
Participant’s Revolving Percentage of the amount of such draft, or any part
thereof, that is not so reimbursed.  Each
L/C Participant’s obligation to pay such amount shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
setoff, counterclaim, recoupment, defense


 


26

















 


or other right
that such L/C Participant may have against such Issuing Lender, the Borrower or
any other Person for any reason whatsoever, (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any
of the other conditions specified in Section 5, (iii) any adverse
change in the condition (financial or otherwise) of the Borrower, (iv) any
breach of this Agreement or any other Loan Document by the Borrower or any
other L/C Participant or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing


 


(b)  If any amount
required to be paid by any L/C Participant to an Issuing Lender pursuant to Section 3.4(a) in
respect of any unreimbursed portion of any payment made by such Issuing Lender
under any Letter of Credit is paid to such Issuing Lender within three Business
Days after the date such payment is due, such L/C Participant shall pay to such
Issuing Lender on demand an amount equal to the product of (i) such
amount, times (ii) the daily average Federal Funds Effective Rate during
the period from and including the date such payment is required to the date on which
such payment is immediately available to such Issuing Lender, times (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. 
If any such amount required to be paid by any L/C Participant pursuant
to Section 3.4(a) is not made available to an Issuing Lender by such
L/C Participant within three Business Days after the date such payment is due,
such Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans. 
A certificate of an Issuing Lender submitted to any L/C Participant with
respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error.


 


(c)  Whenever, at any
time after an Issuing Lender has made payment under any Letter of Credit and
has received from any L/C Participant its pro  rata share of such
payment in accordance with Section 3.4(a), such Issuing Lender receives
any payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of collateral applied thereto by such
Issuing Lender), or any payment of interest on account thereof, such Issuing
Lender will distribute to such L/C Participant its pro  rata share
thereof; provided, however, that in the event that any such
payment received by an Issuing Lender shall be required to be returned by such
Issuing Lender, such L/C Participant shall return to such Issuing Lender the
portion thereof previously distributed by such Issuing Lender to it.


 


3.5           Reimbursement Obligation of the
Borrower.  If any draft is paid under
any Letter of Credit, the Borrower shall reimburse the applicable Issuing
Lender for the amount of (a) the draft so paid and (b) any taxes,
fees, charges or other costs or expenses incurred by such Issuing Lender in
connection with such payment, not later than 12:00 Noon, New York City time, on
(i) the Business Day that the Borrower receives notice of such draft, if
such notice is received on such day prior to 10:00 A.M., New York City
time, or (ii) if clause (i) above does not apply, the Business Day
immediately following the day that the Borrower receives such notice.  Each such payment shall be made to the
applicable Issuing Lender at its address set forth in its Issuing Lender
Agreement in Dollars and in immediately available funds.  Interest shall be payable on any such amounts
from the date on which the relevant draft is paid until payment in full at the
rate set forth in (x) until the Business Day next succeeding the date of
the relevant notice, Section 2.8(b) and (y) thereafter, Section 2.8(c).


 


3.6           Obligations Absolute.  The Borrower’s obligations under this Section 3
shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or have had against any Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. 
The Borrower also agrees with each Issuing Lender that, absent gross
negligence or willful misconduct of such Issuing Lender, such Issuing Lender
shall not be responsible for, and the Borrower’s Reimbursement Obligations
under Section 3.5 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even
though such documents shall in fact prove to be invalid, fraudulent or forged,
or any dispute


 


27

















 


between or among
the Borrower and any beneficiary of any Letter of Credit or any other party to
which such Letter of Credit may be transferred or any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such
transferee.  No Issuing Lender shall be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit, except for errors or omissions resulting from the gross
negligence or willful misconduct of such Issuing Lender.  The Borrower agrees that any action taken or
omitted by an Issuing Lender under or in connection with any Letter of Credit
or the related drafts or documents, if done in the absence of gross negligence
or willful misconduct, shall be binding on the Borrower and shall not result in
any liability of such Issuing Lender to the Borrower; provided that the
Borrower shall not be precluded from asserting any claim for direct (but not
consequential) damages suffered by the Borrower to the extent caused by (i) the
gross negligence or willful misconduct of such Issuing Lender in determining
whether a request presented under any Letter of Credit issued by it complied
with the terms of such Letter of Credit or (ii) such Issuing Lender’s
willful failure or gross negligence in failing to pay under any Letter of
Credit issued by it after the presentation to it of a request strictly
complying with the terms and conditions of such Letter of Credit.


 


3.7           Letter of Credit Payments.  If any draft shall be presented for payment
under any Letter of Credit, the applicable Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. 
The responsibility of the applicable Issuing Lender to the Borrower in
connection with any draft presented for payment under any Letter of Credit
shall, in addition to any payment obligation expressly provided for in such
Letter of Credit, be limited to determining that the documents (including each
draft) delivered under such Letter of Credit in connection with such
presentment are substantially in conformity with such Letter of Credit.


 


3.8           Applications.  To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.


 


SECTION 4.           REPRESENTATIONS
AND WARRANTIES


 


To induce the Administrative Agent and the Lenders
to enter into this Agreement and to make the Revolving Loans and issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:


 


4.1           Financial Condition.  The audited consolidated balance sheet of the
Borrower as at December 31, 2005, and the related consolidated statements
of income and cash flows for the fiscal year then ended, reported on by and
accompanied by an unqualified report from Deloitte & Touche LLP,
present fairly the consolidated financial condition of the Borrower as of such
date, and the consolidated results of its operations and its consolidated cash
flows for the fiscal year then ended. 
The unaudited consolidated balance sheet of the Borrower as at September 30,
2006, and the related unaudited consolidated statements of income and cash
flows for the nine-month period ended on such date, present fairly the
consolidated financial condition of the Borrower as of such date, and the
consolidated results of its operations and its consolidated cash flows for the
nine-month period then ended (subject to normal year-end adjustments).  All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein).  Except as set forth on Schedule 4.1, as of
the Closing Date, neither the Borrower nor any Significant Subsidiary has any
material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including any interest rate or foreign currency swap or exchange transaction or
other obligation in respect of derivatives, that are not reflected in the most
recent financial statements referred to in this paragraph.


 


28

















 


4.2           No
Change.  Except as set forth on
Schedule 4.2, since December 31, 2005, there has been no development or
event that has had or could reasonably be expected to have a Material Adverse
Effect.


 


4.3           Existence; Compliance with Law.  The Borrower and each Significant Subsidiary (a) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the power and authority, and the
legal right, to own and operate its material properties, to lease the material
properties it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation or other
organization and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except to the extent that the failure to be so
qualified or in good standing could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and (d) is in compliance with
all Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


4.4           Power; Authorization; Enforceable
Obligations.  The Borrower has the
corporate power and authority to make, deliver and perform the Loan Documents
to which it is a party and to obtain extensions of credit hereunder.  The Borrower has taken all necessary
organizational action to authorize the execution, delivery and performance of
the Loan Documents to which it is a party and to authorize the extensions of
credit on the terms and conditions of this Agreement.  No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with (a) any extension of credit
hereunder when made (except for consents, authorizations, filings, notices or
other acts required with respect to such extension of credit that have been
obtained or made and are in full force and effect at the time of such extension
of credit) or (b) the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan Documents.  Each Loan Document has been duly executed and
delivered on behalf of the Borrower. 
This Agreement constitutes, and each other Loan Document upon execution
will constitute, a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).


 


4.5           No Legal Bar.  The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof will not (a) violate
any (i) Requirement of Law or (ii) Contractual Obligation of the
Borrower or any Significant Subsidiary (except in the case of this clause (a) to
the extent any such violations could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect) and (b) result in, or require,
the creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such Contractual Obligation.


 


4.6           Litigation.  Except as set forth on Schedule 4.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any Significant Subsidiary or against
any of their respective properties or revenues (a) with respect to any of
the Loan Documents or any of the transactions contemplated hereby or thereby,
or (b) that could reasonably be expected to have a Material Adverse
Effect.


 


4.7      Ownership of Property; Liens.  Except (i) for assets disposed of in the
ordinary course of business since September 30, 2006 and (ii) as set
forth on Schedule 4.7, on the Closing Date the Borrower and its
Significant Subsidiaries have good title, free of all Liens other than
Permitted Liens, to


 


29

















 


all of the
material assets reflected in the Borrower’s consolidated balance sheet as of September 30,
2006 as owned by the Borrower and/or its Significant Subsidiaries.


 


4.8           Taxes.  Each of the Borrower and each Significant
Subsidiary has filed or caused to be filed all Federal, state and other
material tax returns that are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than (i) those
that are not in the aggregate material and (ii) any taxes, fees or other
charges the amount or validity of which are currently being contested in good
faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Borrower or such
Significant Subsidiary).


 


4.9           Federal Regulations.  No part of the proceeds of any Revolving
Loans, and no other extensions of credit hereunder, will be used (a) for “buying”
or “carrying” any “margin stock” within the respective meanings of each of the
quoted terms under Regulation U as now and from time to time hereafter in effect
for any purpose that violates the provisions of the Regulations of the Board or
(b) for any purpose that violates the provisions of the Regulations of the
Board.  If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1, as applicable, referred
to in Regulation U.


 


4.10         ERISA.  Except as could not reasonably be expected to
have a Material Adverse Effect, (a) neither a Reportable Event nor an “accumulated
funding deficiency” (within the meaning of Section 412 of the Code or Section 302
of ERISA), as applicable, has occurred during the five-year period prior to the
date on which this representation is made or deemed made with respect to any
Plan subject to Title IV of ERISA, Section 412 of the Code or Section 302
of ERISA, and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code; (b) no termination of a
Single Employer Plan has occurred, and no Lien on the assets of the Borrower or
any Significant Subsidiary in favor of the PBGC or a Plan has arisen, during
such five-year period; (c) the present value of all accrued benefits under
each Single Employer Plan (based on those assumptions used to fund such Plans)
did not, as of the last annual valuation date for which a valuation report is
available prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount; and (d) neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan that has resulted or could reasonably be expected to result
in a material liability under ERISA, and, to the knowledge of the Borrower or
any Commonly Controlled Entity, neither the Borrower nor any Commonly
Controlled Entity would become subject to any material liability under ERISA if
the Borrower or any Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the
date on which this representation is made or deemed made.  Neither the Borrower nor any Commonly
Controlled Entity has knowledge that any such Multiemployer Plan is in
Reorganization or Insolvent.


 


4.11         Investment Company Act; Other
Regulations.  The Borrower is not an “investment
company”, or a company “controlled” by an “investment company”, within the
meaning of the Investment Company Act of 1940, as amended.  The Borrower is not subject to regulation
under any Requirement of Law (other than Regulation X of the Board, the
Minnesota Public Utilities Commission and the FERC under the Federal Power Act)
that limits its ability to incur Indebtedness.


 


4.12         Use of Proceeds.  The proceeds of the Revolving Loans and the
Letters of Credit shall be used to effect the Refinancing, to pay fees and
expenses incurred in connection therewith and for general corporate purposes
(including commercial paper support).


 


30
















 


4.13         Accuracy
of Information, etc.  The
information, taken as a whole, contained in this Agreement, the other Loan
Documents, the Confidential Information Memorandum or the other documents,
certificates or statements furnished by or on behalf of the Borrower to the
Administrative Agent or the Lenders, or any of them, for use in connection with
the transactions contemplated by this Agreement or the other Loan Documents,
did not contain as of the date such information was so furnished (or, in the
case of the Confidential Information Memorandum, together with all other
information so furnished to the Lenders prior to the Closing Date, as of the
date of this Agreement), any untrue statement of a material fact or omit to
state a material fact necessary to make the information contained herein or
therein not misleading in light of the circumstances under which such
information was furnished.


 


4.14    Solvency.  The Borrower is, and after giving effect to
the incurrence of all Indebtedness and obligations being incurred in connection herewith will be, Solvent.


 


SECTION 5.           CONDITIONS
PRECEDENT


 


5.1           Conditions to Initial Extension of
Credit.  The agreement of each Lender
to make the initial extension of credit requested to be made by it is subject
to the satisfaction, prior to or concurrently with the making of such extension
of credit on the Closing Date, of the following conditions precedent:


 


(a)   Credit Agreement. 
The Administrative Agent shall have received this Agreement or, in the
case of the Lenders, an Addendum, executed and delivered by the Administrative
Agent, the Borrower and each Person listed on Schedule 1.1A.


 


(b)   Termination
of Existing Credit Facility.  The
Administrative Agent shall have received satisfactory evidence that the
Existing Credit Agreement shall have been terminated, all commitments
thereunder shall have been terminated and all amounts owing thereunder shall
have been paid in full (the “Refinancing”).


 


(c)   Financial
Statements.  The Lenders shall have
received audited consolidated financial statements of the Borrower for the
2003, 2004 and 2005 fiscal years, and such financial statements shall not, in
the reasonable judgment of the Lenders, reflect any material adverse change in
the consolidated financial condition of the Borrower, as reflected in the
financial statements contained in the Confidential Information Memorandum.


 


(d)   Approvals.  All governmental and third party approvals,
if any, required as of the Closing Date in connection with the Refinancing and
the transactions contemplated hereby shall have been obtained on satisfactory
terms and shall be in full force and effect.


 


(e)   Fees.  The Lenders and the Administrative Agent
shall have received all fees required to be paid, and all expenses for which
invoices have been presented (including the reasonable fees and expenses of
legal counsel), on or before the Closing Date.


 


(f)    Closing
Certificate; Certified Articles of Incorporation; Good Standing Certificates.  The Administrative Agent shall have received (i) a
certificate of the Borrower, dated the Closing Date, substantially in the form
of Exhibit A, with appropriate insertions and attachments, including the
articles of incorporation of the Borrower certified by the relevant authority
of the jurisdiction of organization of the Borrower, and (ii) a long form
good standing certificate for the Borrower from its jurisdiction of
organization.


 


31

















 


(g)   Legal
Opinions.  The Administrative Agent
shall have received the following executed legal opinions:


 


(i)    the legal opinion of Jones Day, special New
York counsel to the Borrower; and


 


(ii)   the legal opinion of Gary R. Johnson, general
counsel of Xcel Energy Inc.


 


Each such legal opinion shall
cover such matters incident to the transactions contemplated by this Agreement
as the Administrative Agent may reasonably require.


 


5.2           Conditions to Each Extension of
Credit.  The agreement of each Lender
to make any extension of credit requested to be made by it on any date
(including its initial extension of credit) is subject to the satisfaction of
the following conditions precedent:


 


(a)     Representations and Warranties.  Each of the representations and warranties
made by the Borrower in or pursuant to the Loan Documents (other than the
representations and warranties contained in Sections 4.2 and 4.6, which
representations and warranties need only be true and correct on and as of the
Closing Date) shall be true and correct in all material respects on and as of
such date as if made on and as of such date, except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall have been true and correct in
all material respects as of such earlier date.


 


(b)     No Default.  No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.


 


(c)     Other Documents.  In the case of any extension of credit made
on an Increased Revolving Commitment Closing Date, the Administrative Agent
shall have received such customary documents and information as it may
reasonably request.


 


Each borrowing by and
issuance of a Letter of Credit on behalf of the Borrower hereunder shall
constitute a representation and warranty by the Borrower as of the date of such
extension of credit that the conditions contained in this Section 5.2 have
been satisfied.


 


SECTION 6.           AFFIRMATIVE
COVENANTS


 


The Borrower hereby agrees that, so long as the
Revolving Commitments remain in effect, any Letter of Credit remains
outstanding or any Revolving Loan or other amount is owing to any Lender or the
Administrative Agent hereunder:


 


6.1           Financial Statements.  The Borrower shall furnish to the
Administrative Agent (which shall in turn furnish to the Lenders):


 


(a)   as soon as
available, but in any event within 90 days after the end of each fiscal
year of the Borrower, a copy of the audited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as of the end of such year and the
related audited consolidated statements of income and of cash flows for such
year, setting forth in each case in comparative form the figures for the
previous year, reported on without a “going concern” or like qualification or
exception, or qualification arising out of the scope of the audit, by Deloitte &
Touche LLP or other independent certified public accountants of nationally
recognized standing; and


 


32

















 


(b)   as soon as
available, but in any event not later than 45 days after the end of each of the
first three quarterly periods of each fiscal year of the Borrower, the
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of income and of cash flows for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects (subject to
normal year-end audit adjustments).


 


All such financial
statements shall present fairly, in all material respects, the financial
position of the Borrower and its Subsidiaries and shall be prepared in
reasonable detail and in accordance with GAAP applied (except as approved by
such accountants or officer, as the case may be, and disclosed in reasonable
detail therein) consistently throughout the periods reflected therein and with
prior periods.


 


6.2           Certificates; Other Information.  The Borrower shall furnish to the
Administrative Agent (which shall in turn furnish to the Lenders, or, in the
case of clause (c), to the relevant Lender):


 


(a)   concurrently
with the delivery of any financial statements pursuant to Section 6.1, (i) a
certificate of a Responsible Officer stating that, to the best of such
Responsible Officer’s knowledge, during such period the Borrower has observed
or performed all of its covenants and other agreements, and satisfied every
condition contained in this Agreement and the other Loan Documents to which it
is a party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate and (ii) a compliance
certificate containing all information and calculations necessary for
determining compliance by the Borrower with the provisions of Section 7.1
of this Agreement as of the last day of the fiscal quarter or fiscal year of
the Borrower, as the case may be;


 


(b)   within five
days after the same are sent, copies of all financial statements and reports
that the Borrower sends to the holders of any class of its debt securities or
public equity securities and, within five days after the same are filed, copies
of all reports on Forms 10-K, 10-Q and 8-K that the Borrower files with the
SEC; and


 


(c)   promptly,
such additional financial and other information as any Lender may from time to
time reasonably request through the Administrative Agent.


 


6.3           Payment of Obligations and Taxes.  The Borrower shall and shall cause each of
its Significant Subsidiaries to pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations (including, without limitation, obligations with respect to taxes)
of whatever nature which, if unpaid, undischarged or otherwise unsatisfied are
or might become a Lien or other charge upon any properties of the Borrower or
any Significant Subsidiary, except that neither the Borrower nor any Subsidiary
shall be required to pay, discharge or otherwise satisfy any such obligation (i) whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary has
provided adequate reserves in accordance with GAAP or (ii) where failure
to pay, discharge or otherwise satisfy such obligation could not, in the
aggregate, reasonably be expected to result in a Material Adverse Effect.


 


6.4           Maintenance of Existence;
Compliance.  The Borrower shall and
shall cause each of its Significant Subsidiaries:


 


33

















 


(a) to
preserve, renew and keep in full force and effect its organizational existence,
except as otherwise permitted by Section 7.3 or 7.4;


 


(b) to
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business, except (i) as
otherwise permitted by Section 7.3 and (ii) to the extent that
failure to do so could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect; and


 


(c) to
comply with all Contractual Obligations and Requirements of Law, except to the
extent that failure to comply therewith could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.


 


6.5           Maintenance of Property; Insurance.  The Borrower shall and shall cause each of
its Significant Subsidiaries to (a) keep all property useful and necessary
in its business in good working order and condition, ordinary wear and tear
excepted and except where the failure to do so could not, in the aggregate,
reasonably be expected to result in a Material Adverse Effect, and (b) maintain
with financially sound and reputable insurance companies insurance on its
property in at least such amounts (subject to deductibles and self-retention
limits) and against at least such risks as are usually insured against in the
same general area by companies engaged in the same or a similar business.


 


6.6           Inspection of Property; Books and
Records; Discussions.  The Borrower
shall and shall cause each of its Significant Subsidiaries to (a) keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities and (b) from
time to time during normal business hours and on reasonable prior notice,
permit representatives of any Lender to visit and inspect any of its properties
(subject to such physical security
requirements as the Borrower or the applicable Significant Subsidiary may
require) and examine and make abstracts from any of its books and
records (except to the extent that such
access is restricted by law or by a bona fide non-disclosure agreement not
entered into for the purpose of evading the requirements of this Section 6.6),
at any reasonable time and as often as may reasonably be desired and to
discuss the business, operations, properties and financial and other condition
of the Borrower and the Significant Subsidiaries with officers and employees of
the Borrower and the Significant Subsidiaries and with their independent
certified public accountants.


 


6.7           Notices.  Promptly after any officer of the Borrower
with responsibility for the matter in question becomes aware thereof, the
Borrower shall give notice to the Administrative Agent (which shall in turn
furnish such notice to the Lenders) of:


 


(a)   the
occurrence of any Default or Event of Default;


 


(b)   any (i) default
or event of default under any Contractual Obligation of the Borrower or any
Significant Subsidiary or (ii) litigation, investigation or proceeding
that may exist at any time between the Borrower or any Significant Subsidiary,
on the one hand, and any Governmental Authority, on the other hand, that in
either case, if not cured could reasonably be expected to have a Material
Adverse Effect;


 


(c)   (i) the
occurrence of any Reportable Event with respect to any Plan, a failure to make
any required contribution to a Plan, the creation of any Lien in favor of the
PBGC or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or the Borrower or
any Commonly Controlled Entity or any Multiemployer Plan with respect to the


 


34

















 


withdrawal from,
or the termination, Reorganization or Insolvency of, any Plan, which in any
case could reasonably be expected to have a Material Adverse Effect; and


 


(d)   any development or
event that has had or could reasonably be expected to have a Material Adverse
Effect.


 


Each notice pursuant to this
Section 6.7 shall be accompanied by a statement of a Responsible Officer
setting forth details of the occurrence referred to therein and stating what
action the Borrower or such Significant Subsidiary proposes to take with
respect thereto.


 


6.8           Ownership of Significant
Subsidiaries. Except as permitted by Section 6.10, 7.3 or 7.4, the
Borrower shall at all times, directly or indirectly own, beneficially and of
record, 100% of each class of issued and outstanding common stock of each
Significant Subsidiary.


 


6.9           Scope of Business.  The Borrower shall, and shall cause each
Significant Subsidiary to, engage primarily in energy-related businesses.


 


6.10         Significant Subsidiaries.  So long as no Default or Event of Default
then exists or arises as a result thereof, the Borrower may from time to time
by written notice delivered to the Administrative Agent:


 


(a) designate
any Subsidiary as a Significant Subsidiary; and


 


(b) with
respect to any Designated Significant Subsidiary, revoke its designation as a
Significant Subsidiary; provided that the assets of such Designated
Significant Subsidiary could have been
disposed of pursuant to the provisions of Section 7.4 if such transaction
were treated as a Disposition of the assets of such Designated Significant Subsidiary.


 


SECTION 7.           NEGATIVE
COVENANTS


 


The Borrower hereby agrees that, so long as the
Revolving Commitments remain in effect, any Letter of Credit remains
outstanding or any Revolving Loan or other amount is owing to any Lender or the
Administrative Agent hereunder:


 


7.1           Ratio of Funded Debt to Total
Capital.  The Borrower shall not
permit the ratio of Funded Debt of the Borrower and its Subsidiaries on a
consolidated basis to Total Capital as at the last day of any fiscal quarter of
the Borrower to exceed 0.65 to 1.00.


 


7.2           Liens.  The Borrower shall not, and shall not permit
any of its Significant Subsidiaries to, directly or indirectly, create, incur,
assume or suffer to exist any Lien upon any of its property, whether now owned
or hereafter acquired, except for Permitted Liens.


 


7.3           Fundamental Changes.  The Borrower shall not, and shall not permit
any of its Significant Subsidiaries to, directly or indirectly, merge or
consolidate with any Person, except that, if after giving effect thereto no
Default or Event of Default would exist, this Section 7.3 shall not apply
to (a) any merger or consolidation of the Borrower with any one or more
Persons (including any Subsidiary), so long as the successor entity (if other
than the Borrower) (i) is a Person organized and duly existing under the
law of any state of the United States and (ii) assumes, in form reasonably
satisfactory to the Administrative Agent, all of the obligations of the
Borrower under this Agreement, (b) any merger or consolidation of a
Significant Subsidiary with another Subsidiary, provided that the
continuing Person shall be a Significant Subsidiary, and (c) any merger or consolidation of a
Significant Subsidiary with another Person if after giving effect thereto the
survivor is no longer a Significant Subsidiary and the


 


35

















 


assets of such Significant Subsidiary could have been Disposed of
pursuant to the provisions of Section 7.4 if such transaction were treated
as a Disposition of the assets of such Significant Subsidiary.  In the event of any merger or consolidation of or by
the Borrower in which the Borrower is not the surviving entity, the surviving
entity of such merger or consolidation shall deliver to the Administrative
Agent for the benefit of the Lenders all information reasonably necessary
to comply with the identification requirements of the Act (as defined in Section 10.17).


 


7.4           Disposition
of Property.  The Borrower shall not,
directly or indirectly, Dispose of, in one transaction or a series of transactions,
all or substantially all of its business or property, whether now owned or
hereafter acquired.


 


7.5      Transactions
with Affiliates.  The Borrower shall
not, and shall not permit any of its Significant Subsidiaries to, directly or
indirectly, enter into any transaction with any Affiliate (other than the
Borrower or any Significant Subsidiary) unless such transaction is upon fair
and reasonable terms no less favorable to the Borrower or such Significant
Subsidiary than it would obtain in a comparable arm’s length transaction with a
Person that is not an Affiliate; provided, however, that this Section 7.5
shall not prohibit any transaction subject to the jurisdiction of the FERC or any
applicable state regulatory commission.


 


7.6           Swap Agreements.  The
Borrower shall not, and shall not permit any of its Significant Subsidiaries
to, directly or indirectly, enter into any Swap Agreement, except (a) Swap
Agreements entered into to hedge or mitigate risks to which the Borrower or any
Significant Subsidiary has actual exposure or in respect of an anticipated
transaction and (b) Swap Agreements entered into in order to effectively
cap, collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Significant
Subsidiary.


 


7.7           Clauses Restricting Subsidiary
Distributions.  The Borrower shall
not, and shall not permit any of its Significant Subsidiaries to, directly or
indirectly, enter into or suffer to exist or become effective (including by way
of amendment, supplement or other modification of an agreement existing on the
Closing Date) any consensual encumbrance or restriction on the ability of any
Significant Subsidiary of the Borrower to make payments, directly or
indirectly, to its shareholders by way of dividends, repayment of loans or
intercompany charges, or other returns on investments that is more restrictive
than any such encumbrance or restriction applicable to such Significant
Subsidiary on the Closing Date; provided that this Section 7.7
shall not apply to (a) limitations or restrictions imposed by law or in
regulatory proceedings or (b) financial covenants contained in any
agreement or indenture requiring compliance with financial tests or ratios, so
long as such financial covenants could not reasonably be expected to impair the
Borrower’s ability to repay the Obligations as and when due.


 


SECTION 8.           EVENTS
OF DEFAULT


 


If any of the following events shall occur and be
continuing:


 


(a)   the
Borrower shall fail to pay any principal of any Revolving Loan or Reimbursement
Obligation when due in accordance with the terms hereof; or the Borrower shall
fail to pay any interest on any Revolving Loan or Reimbursement Obligation, or
any other amount payable hereunder or under any other Loan Document, within
five days after any such interest or other amount becomes due in accordance
with the terms hereof; or


 


(b)   any
representation or warranty made or deemed made by the Borrower herein or in any
other Loan Document or that is contained in any certificate, document or
financial or other


 


36

















 


statement
furnished by it at any time under or in connection with this Agreement or any such
other Loan Document shall prove to have been inaccurate in any material respect
on or as of the date made or deemed made; or


 


(c)   the
Borrower shall default in the observance or performance of any agreement
contained in Section 6.4(a) (with respect to the Borrower only), Section 6.7(a) or
Section 7 of this Agreement; or


 


(d)   the
Borrower shall default in the observance or performance of any other agreement
contained in this Agreement or any other Loan Document (other than as provided
in paragraphs (a) through (c) of this Section), and such default
shall continue unremedied for a period of 30 days after notice to the Borrower
from the Administrative Agent or the Required Lenders; or


 


(e)   any event
or condition occurs that results in any Material Indebtedness becoming due
prior to its scheduled maturity or that enables or permits the holder or
holders of any Material Indebtedness or any trustee or agent on its or their
behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity; provided that this clause (e) shall not
apply to (i) secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such Indebtedness,
(ii) Indebtedness that becomes due as a result of (A) the
Borrower or any Significant Subsidiary effecting an optional redemption,
voluntary prepayment, voluntary defeasance or voluntary repurchase of such
Indebtedness or (B) a similar event or condition occurring at the election
of the Borrower or any Significant Subsidiary or (iii) Swap Agreements and
Commodity Swap Agreements that are cancelled or terminated at the option of
either party thereto, other than as a result of a default, event of default or
early termination event; or


 


(f)    (i) the
Borrower or any Significant Subsidiary shall commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its assets, or the
Borrower or any Significant Subsidiary shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the
Borrower or any Significant Subsidiary any case, proceeding or other action of
a nature referred to in clause (i) above that (A) results in the entry
of an order for relief or any such adjudication or appointment or (B) remains
undismissed or undischarged for a period of 60 days; or (iii) there shall
be commenced against the Borrower or any Significant Subsidiary any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets that results in the entry of an order for any such relief that shall
not have been vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) the Borrower or any Significant
Subsidiary shall take any corporate action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Borrower or any Significant
Subsidiary shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or


 


(g)     (i) any Person shall engage in any
non-exempt “prohibited transaction” (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan, (ii) any “accumulated
funding deficiency” (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan subject to Section 412 of the
Code or Section 302 of ERISA or any Lien in


 


37

















 


favor of the PBGC or a
Plan shall arise on the assets of any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of the
Required Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) in connection with a withdrawal from,
or the Insolvency or Reorganization of, a Multiemployer Plan, any Commonly
Controlled Entity shall, or is reasonably likely to, incur any unpaid liability
or (vi) any other similar event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or conditions, if
any, could reasonably be expected to have a Material Adverse Effect; or


 


(h)   one or more
judgments or decrees shall be entered against the Borrower or any Significant
Subsidiary involving in the aggregate a liability (not paid or fully covered by
insurance as to which the relevant insurance company has acknowledged coverage)
of $50,000,000 or more, and such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the entry
thereof; or


 


(i)    a Change
in Control shall occur;


 


then, and in any such event,
(A) if such event is an Event of Default specified in paragraph (f) above
with respect to the Borrower, automatically the Revolving Commitments shall
immediately terminate and the Revolving Loans (with accrued interest thereon)
and all other amounts owing under this Agreement and the other Loan Documents
shall immediately become due and payable, and (B) if such event is any
other Event of Default, either or both of the following actions may be
taken:  (i) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower
declare the Revolving Commitments to be terminated forthwith, whereupon the
Revolving Commitments shall immediately terminate; and (ii) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Revolving Loans (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents to be
due and payable forthwith, whereupon the same shall immediately become due and
payable.  With respect to all Letters of
Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of
such Letters of Credit.  Amounts held in
such cash collateral account shall be applied by the Administrative Agent to
the payment of drafts drawn under such Letters of Credit.  During the continuance of an Event of
Default, the Administrative Agent may, or upon the request of the Required
Lenders shall, apply any Excess Balance (as defined below) to repay the Obligations.  If all Obligations (other than L/C
Obligations in respect of undrawn Letters of Credit) have been paid in full,
the Excess Balance shall be returned to the Borrower (or such other Person as
may be lawfully entitled thereto).  If no
Event of Default is then continuing, the Administrative Agent shall return to
the Borrower the balance in the cash collateral account.  For purposes hereof, “Excess Balance” means
the amount by which the balance in the cash collateral account exceeds the
undrawn and unexpired amount of the Letters of Credit.  Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived by the Borrower.


 


SECTION 9.           THE
AGENTS


 


9.1           Appointment.  Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents,


 


38

















 


and each such
Lender irrevocably authorizes the Administrative Agent, in such capacity, to
take such action on its behalf under the provisions of this Agreement and the
other Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and the other Loan Documents, together with such other powers as are reasonably
incidental thereto.   Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, 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.


 


9.2           Delegation of Duties.  The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.  The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys in-fact
selected by it with reasonable care.


 


9.3           Exculpatory Provisions.  Neither any Agent nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates shall
be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan Document
(except to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person’s own gross negligence or willful misconduct) or (ii) responsible
in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agents under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or for any failure
of the Borrower to perform its obligations hereunder or thereunder.  The Agents shall not be under any obligation
to any Lender 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.  Neither any Agent nor any of
their respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any of its Affiliates
that is communicated to or obtained by the Person serving as an Agent or any of
its Affiliates in any capacity.


 


9.4           Reliance by Administrative Agent.  The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any instrument, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order 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 may deem and treat the payee of any Note as the
owner thereof for all purposes unless such Note had been assigned in accordance
with the provisions of Section 10.6 hereof.  The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that 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 and the other Loan Documents in accordance with a request of the
Required Lenders (or, if so specified by this Agreement, all Lenders),


 


39

















 


and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Revolving Loans.


 


9.5           Notice of Default.  The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default”.  In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders.  The Administrative Agent
shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders (or, if so specified by
this Agreement, all Lenders); provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders.


 


9.6           Non-Reliance on Agents and Other
Lenders.  Each Lender expressly
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereafter
taken, including any review of the affairs of the Borrower or any affiliate of
the Borrower, shall be deemed to constitute any representation or warranty by
any Agent to any Lender.  Each Lender represents
to the Agents that it has, independently and without reliance upon any Agent or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and its affiliates and made its own decision to make its Revolving
Loans hereunder and enter into this Agreement. 
Each Lender also represents that it will, independently and without
reliance upon any Agent 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 analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower and its
affiliates.  Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Borrower or any affiliate
of the Borrower that may come into the possession of the Administrative Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.


 


9.7           Indemnification.  The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is
sought after the date upon which the Revolving Commitments shall have
terminated and the Revolving Loans shall have been paid in full, ratably in
accordance with such Aggregate Exposure Percentages immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever that may at any time (whether before or after the payment of
the Revolving Loans) be imposed on, incurred by or asserted against such Agent
in any way relating to or arising out of, the Revolving Commitments, this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by such Agent under or in connection
with any of the foregoing; provided that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements that are
found by a final and nonappealable decision of a court of competent
jurisdiction to


 


40
















 


have resulted from
such Agent’s gross negligence or willful misconduct.  The agreements in this Section shall
survive the payment of the Revolving Loans and all other amounts payable
hereunder.


 


9.8           Agent in Its Individual Capacity.  Each Agent and its affiliates may make loans
to, accept deposits from and generally engage in any kind of business with the
Borrower as though such Agent were not an Agent.  With respect to its Revolving Loans made or
renewed by it and with respect to any Letter of Credit issued or participated
in by it, each Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise the same as though
it were not an Agent, and the terms “Lender” and “Lenders” shall include each Agent
in its individual capacity.


 


9.9           Successor Administrative Agent.  The Administrative Agent may resign as
Administrative Agent upon 10 days’ notice to the Lenders and the Borrower.  If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then
the Required Lenders shall appoint from among the Lenders a successor agent for
the Lenders, which successor agent shall (unless an Event of Default under Section 8(a) or
Section 8(f) with respect to the Borrower shall have occurred and be
continuing) be subject to approval by the Borrower (which approval shall not be
unreasonably withheld or delayed), whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term “Administrative
Agent” shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent’s rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Revolving Loans.  If no successor agent has accepted
appointment as Administrative Agent by the date that is 10 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 assume and 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.  After any retiring Administrative Agent’s
resignation as Administrative Agent, the provisions of this Section 9
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 and the other Loan
Documents.


 


9.10         Documentation Agents and Syndication
Agent.  Neither any Documentation
Agent nor the Syndication Agent shall have any duties or responsibilities hereunder
in its capacity as such.


 


SECTION 10.         MISCELLANEOUS


 


10.1         Amendments and Waivers.  Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1.  The Required Lenders and the Borrower may,
or, with the written consent of the Required Lenders, the Administrative Agent
and the Borrower may, from time to time, (a) enter into written
amendments, supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the
Borrower hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement
or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (i) except as set forth in Section 2.17,
forgive the principal amount or extend the final scheduled date of maturity of
any Revolving Loan or Reimbursement Obligation, reduce the stated rate of any
interest or fee payable hereunder (except in connection with the waiver of
applicability of any post-default increase in interest rates (which waiver
shall be effective with the consent of the Required Lenders)) or extend the
scheduled date of any payment


 


41

















 


thereof, or
increase the amount or extend the expiration date of any Lender’s Revolving
Commitment, in each case without the written consent of each Lender directly
affected thereby; (ii) eliminate or reduce the voting rights of any Lender
under this Section 10.1 without the written consent of such Lender; (iii) reduce
any percentage specified in the definition of Required Lenders or consent to
the assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents, in each case without the
written consent of all Lenders; (iv) amend, modify or waive any provision
of Section 2.11(a) or Section 2.11(b) without the written
consent of each Lender directly affected thereby, (v) amend, modify or
waive any provision of Section 9 without the written consent of the
Administrative Agent; or (vi) amend, modify or waive any provision of Section 3
without the written consent of each Issuing Lender.  Notwithstanding anything contained in this Section 10.1,
the Revolving Termination Date with respect to any Lender may not be extended
with respect to such Lender without its written consent.  Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Borrower, the Lenders, the Administrative Agent and all
future holders of the Revolving Loans. 
In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver, except to the extent expressly provided therein, shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.  Notwithstanding the foregoing,
the Administrative Agent may waive payment of the fee required by Section 10.6(b)(ii)(B) without
obtaining the consent of any other party to this Agreement


 


10.2         Notices.  All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
electronic transmission or telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered, or
three Business Days after being deposited in the mail, postage prepaid, or, in
the case of telecopy notice, when received, addressed as follows in the case of
the Borrower and the Administrative Agent, and as set forth in an
administrative questionnaire delivered to the Administrative Agent in the case
of the Lenders, or to such other address as may be hereafter notified by the
respective parties hereto:


 


	
  Borrower:

  	
  414
  Nicollet Mall

  
	
   

  	
  Minneapolis,
  MN 55401

  
	
   

  	
  Attention:
  Treasurer

  
	
   

  	
  Telecopy:
  612-215-5311

  
	
   

  	
  Telephone:
  612-215-4627

  
	
   

  	
   

  
	
   Administrative Agent:

  	
  c/o
  Loan and Agency Services Group

  
	
   

  	
  1111
  Fannin, 10th Floor

  
	
   

  	
  Houston,
  TX 77002

  
	
   

  	
  Attention:
  Jamie Garcia

  
	
   

  	
  Telecopy:
  713-427-6307

  
	
   

  	
  Telephone:
  713-750-2377

  
	
   

  	
   

  
	
  with
  a copy to:

  	
  JPMorgan
  Chase Bank, N.A.

  
	
   

  	
  270
  Park Avenue, 4th Floor

  
	
   

  	
  New
  York, NY 10017

  
	
   

  	
  Attention:
  Peter Ling

  
	
   

  	
  Telecopy:
  212-270-0213

  
	
   

  	
  Telephone:
  212-270-4676

  
	
   

  	
   

  
	
  and,
  if regarding Letters

  of Credit, with a copy to:

  	
  JPMorgan
  Chase LOC Tampa

  



 


42

















 


	
   

  	
  10420
  Highland Mn Dr

  
	
   

  	
  Block
  2, Floor 4

  
	
   

  	
  Tampa,
  FL 33610

  
	
   

  	
  Attention:
  James Alonzo

  
	
   

  	
  Telecopy:
  813-432-5161

  
	
   

  	
  Telephone:
  813-432-6339

   

  And
  if to any other Issuing Lender, at its address for notices set forth in its Issuing
  Lender Agreement.

  



 


; provided that any
notice, request or demand to or upon the Administrative Agent or the Lenders
shall not be effective until received.


 


Unless and until the
Administrative Agent is notified in writing by the Borrower to the contrary,
the Borrower hereby authorizes the Administrative Agent to rely on any notices
in respect of the making, extension, conversion or continuation of Revolving
Loans and the Types of Revolving Loans and the Interest Periods applicable to
Eurodollar Loans given by any Responsible Officer or any designee of a
Responsible Officer of which the Administrative Agent is notified in
writing.  Notices by the Borrower in respect
of the making, extension, conversion or continuation of Revolving Loans and the
Types of Revolving Loans and the Interest Periods applicable to Eurodollar
Loans may be given telephonically, and the Borrower agrees that the
Administrative Agent may rely on any such notices made by any person or persons
which the Administrative Agent in good faith believes to be acting on behalf of
the Borrower.  The Borrower agrees to
deliver promptly to the Administrative Agent a written confirmation of any
telephonic notice, if such confirmation is requested by the Administrative
Agent.  Notices and other communications
to the Lenders hereunder may be delivered or furnished by electronic
communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Section 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender.  The Administrative Agent or the Borrower may,
in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.


 


Information
required to be delivered pursuant to Sections 6.1 and 6.2(b) shall be
deemed to have been delivered on the date on which the Borrower provides notice
to the Administrative Agent (which notice the Administrative Agent shall
promptly provide to the Lenders)  that
such information has been posted on the SEC website on the Internet at
sec.gov/edaux/searches.htm, on the Borrower’s IntraLinks site at intralinks.com
or at another website identified in such notice and accessible by the Lenders
without charge.


 


10.3         No Waiver; Cumulative Remedies.  No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege.  The rights, remedies, powers
and privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.


 


10.4         Survival of Representations and
Warranties.  All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of
the Revolving Loans and other extensions of credit hereunder.


 


43

















 


10.5         Payment of Expenses and Taxes.  The Borrower agrees (a) to pay or reimburse
the Administrative Agent for all its out-of-pocket costs and expenses incurred
in connection with the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including the reasonable fees and disbursements of counsel to the
Administrative Agent and filing and recording fees and expenses, with
statements with respect to the foregoing to be submitted to the Borrower prior
to the Closing Date (in the case of amounts to be paid on the Closing Date) and
from time to time thereafter on a quarterly basis or such other periodic basis
as the Administrative Agent shall deem appropriate, (b) to pay or
reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including the reasonable fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to each Lender
and of counsel to the Administrative Agent, (c) to pay, indemnify, and
hold each Lender and the Administrative Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, that
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, indemnify, and hold each Lender
and the Administrative Agent and their respective officers, directors,
employees, affiliates, agents and controlling persons (each, an “Indemnitee”)
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan
Documents and any such other documents, including any of the foregoing relating
to the use of proceeds of the Revolving Loans or the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the Borrower or any of its Subsidiaries or any of their
properties and the reasonable fees and expenses of legal counsel in connection
with claims, actions or proceedings by any Indemnitee against the Borrower under
any Loan Document (all the foregoing in this clause (d), collectively, the “Indemnified
Liabilities”), provided, that the Borrower shall have no obligation
hereunder to any Indemnitee with respect to Indemnified Liabilities to the
extent such Indemnified Liabilities resulted from the gross negligence or
willful misconduct of such Indemnitee. 
Without limiting the foregoing, and to the extent permitted by
applicable law, the Borrower agrees not to assert and to cause its Subsidiaries
not to assert, and hereby waives and agrees to cause its Subsidiaries to waive,
all rights for contribution or any other rights of recovery that arise as a
result of such Indemnitee’s status as a Lender or the Administrative Agent, or
an officer, director, employee, affiliate, agent or controlling person thereof,
with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or
related to Environmental Laws, that any of them might have by statute or otherwise
against any Indemnitee, except to the extent that such claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses have
resulted from the gross negligence or willful misconduct of such Indemnitee.  All amounts due under this Section 10.5
shall be payable not later than 10 days after written demand therefor.  Statements payable by the Borrower pursuant
to this Section 10.5 shall be submitted to the Borrower at the address of
the Borrower set forth in Section 10.2, or to such other Person or address
as may be hereafter designated by the Borrower in a written notice to the
Administrative Agent.  The agreements in
this Section 10.5 shall survive repayment of the Revolving Loans and all
other amounts payable hereunder.


 


10.6         Successors
and Assigns; Participations and Assignments.  (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 (including any affiliate of
an Issuing Lender that issues any


 


44

















 


Letter
of Credit), except that (i) the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void) and (ii) no Lender
may assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section.


 


(b)(i)  Subject to the conditions set forth in paragraph (b)(ii) below,
any Lender may assign to one or more financial institutions or other entities
(each, an “Assignee”) all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Revolving Commitments
and the Revolving Loans at the time owing to it) with the prior written consent
of:


 


(A) the Borrower (such
consent not to be unreasonably withheld or delayed), provided that no
consent of the Borrower shall be required for an assignment to a Lender or, if
an Event of Default has occurred and is continuing, any other Person; and


 


(B) the Administrative
Agent and each Issuing Lender.


 


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


 


(A) except in the case
of an assignment to a Lender or an affiliate of a Lender or an assignment of
the entire remaining amount of the assigning Lender’s Revolving Commitments or
Revolving Loans, the amount of the Revolving Commitments or Revolving Loans of
the assigning Lender 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) shall not be less than $5,000,000 unless each of the
Borrower, the Administrative Agent and each Issuing Lender otherwise consent, provided
that (1) no such consent of the Borrower shall be required if an Event of
Default has occurred and is continuing and (2) such amounts shall be
aggregated in respect of each Lender and its affiliates, if any;


 


(B) 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; and


 


(C) the Assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
administrative questionnaire.


 


(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified
in each Assignment and Assumption the Assignee thereunder shall be a party
hereto 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 2.12, 2.13, 2.14 and 10.5 in respect of the
period that it was a Lender).  Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 10.6 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c) of this Section.


 


(iv)  The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Revolving Commitments of, and
principal amount of the Revolving Loans and L/C Obligations owing to, each
Lender pursuant to the


 


45

















 


terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Lenders 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.


 


(v)  Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an Assignee, the Assignee’s
completed administrative questionnaire (unless the Assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative
Agent shall accept such Assignment and Assumption and record the information
contained therein in the Register.  No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.


 


(c)(i)  Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a “Participant”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Revolving
Commitments and the Revolving Loans owing to it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrower, the Administrative
Agent, each Issuing Lender and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.  Any
agreement 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 may provide that such Lender
will not, without the consent of the Participant, agree to any amendment,
modification or waiver that (1) requires the consent of such Lender
pursuant to the proviso to the second sentence of Section 10.1 and (2) directly
affects such Participant.  Subject to
paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.7(b) as
though it were a Lender, provided such Participant shall be subject to Section 10.7(a) as
though it were a Lender.


 


(ii)  A Participant shall not be entitled to
receive any greater payment under Section 2.12 or 2.13 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.  In addition, any Participant that is a
Non-U.S. Lender shall not be entitled to the benefits of Section 2.13
unless such Participant complies with Section 2.13(d).


 


(d)  Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations to a Federal Reserve Bank.


 


(e)  The Borrower, upon
receipt of written notice from the relevant Lender, agrees to issue Notes to
any Lender requiring Notes to facilitate transactions of the type described in
paragraph (d) above.


 


10.7         Adjustments; Set-off.  (a)  Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular
Lender, if any Lender (a “Benefitted Lender”) shall, at any time after
the Revolving Loans and other amounts payable hereunder shall immediately
become due and payable pursuant to Section 8, receive any payment of all
or part of the Obligations owing to it, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events
or proceedings of the nature referred to in Section 8(f), or otherwise),
in a greater proportion than


 


46

















 


any such payment
to or collateral received by any other Lender, if any, in respect of the Obligations
owing to such other Lender, such Benefitted Lender shall purchase for cash from
the other Lenders a participating interest in such portion of the Obligations
owing to each such other Lender, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with
each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.


 


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


 


10.8         Counterparts.  This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.  Delivery of an
executed signature page of this Agreement by facsimile transmission shall
be effective as delivery of a manually executed counterpart hereof.  A set of the copies of this Agreement signed
by all the parties shall be lodged with the Borrower and the Administrative
Agent.


 


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


 


10.10       Integration.  This Agreement and the other Loan Documents
represent the entire agreement of the Borrower, the Administrative Agent and
the Lenders with respect to the subject matter hereof and thereof, and there
are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.


 


10.11       GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


10.12       Submission To Jurisdiction; Waivers.  Each party hereto hereby irrevocably and
unconditionally:


 


(a)   submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the


 


47

















 


courts of the State of New York, the courts of the United States for
the Southern District of New York, and appellate courts from any thereof;


 


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


 


(c)   agrees that
service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar
form of mail), postage prepaid, to such party at its address set forth or
referenced in Section 10.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;


 


(d)   agrees that
nothing herein shall affect the right to effect service of process in any other
manner permitted by law or shall limit the right to sue in any other
jurisdiction; and


 


(e)   waives, to
the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.


 


10.13       Acknowledgements.  The Borrower hereby acknowledges that:


 


(a)     it has been advised by counsel in the
negotiation, execution and delivery of this Agreement and the other Loan
Documents;


 


(b)     neither the Administrative Agent nor any
Lender has any fiduciary relationship with or duty to the Borrower arising out
of or in connection with this Agreement or any of the other Loan Documents, and
the relationship between Administrative Agent and Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and


 


(c)     no joint venture is created hereby or by
the other Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the Lenders.


 


10.14       Confidentiality.  Each of the Administrative Agent and each
Lender agrees to keep confidential all information provided to it by or on
behalf of the Borrower, the Administrative Agent or any Lender pursuant to or
in connection with this Agreement and to use such information solely in
connection with evaluating, administering, structuring and/or approving the
credit facility contemplated hereby; provided that nothing herein shall
prevent the Administrative Agent or any Lender from disclosing any such
information (a) to the Administrative Agent, any other Lender or any
affiliate thereof, solely for the purpose of evaluating, administering,
structuring and/or approving the credit facility contemplated hereby, (b) subject
to an agreement to comply with the provisions of this Section, to any actual or
prospective Transferee or any direct or indirect counterparty (or any
professional advisor to such counterparty) to any Swap Agreement with respect
to this Agreement, the Revolving Loans or the Revolving Commitments, (c) to
its employees, directors, agents, attorneys, accountants and other professional
advisors or those of any of its affiliates, solely for the purpose of
evaluating, administering, structuring and/or approving the credit facility
contemplated hereby, (d) upon the request or demand of any Governmental
Authority, (e) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any Requirement of Law, (f) if
requested or required to do so in connection with any litigation or similar
proceeding, (g) that has been publicly disclosed, (h) to the


 


48

















 


National
Association of Insurance Commissioners or any similar organization or any
nationally recognized rating agency that requires access to information about a
Lender’s investment portfolio in connection with ratings issued with respect to
such Lender, or (i) in connection with the exercise of any remedy
hereunder or under any other Loan Document.


 


10.15       WAIVERS OF JURY TRIAL.  THE BORROWER, THE ADMINISTRATIVE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


10.16       Delivery of Addenda.  Each initial Lender shall become a party to
this Agreement by delivering to the Administrative Agent an Addendum duly
executed by such Lender.


 


10.17       USA Patriot Act Notice.  Each
Lender hereby notifies the Borrower that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (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
to identify the Borrower in accordance with the Act.


 


10.18       Existing Credit Agreement.  The Borrower, JPMorgan Chase Bank, N.A., as
administrative agent, and the “Lenders” (as defined in the Existing Credit
Agreement) party to the Existing Credit Agreement comprising the “Required
Lenders” as defined therein, hereby agree that (i) the commitments and all
other obligations of the Lenders under the Existing Credit Agreement shall
terminate in their entirety immediately and automatically upon the
effectiveness of this Agreement, without further action by any party to the
Existing Credit Agreement, (ii) all accrued fees under the Existing Credit
Agreement shall be due and payable at such time and (iii) subject to the
funding loss indemnities in the Existing Credit Agreement, the Borrower may
prepay any and all loans outstanding thereunder on the date of effectiveness of
this Agreement.  


 


49
















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed and delivered by
their proper and duly authorized officers as of the day and year first above
written.


 


 


	
   

  	
  NORTHERN STATES POWER
  COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ George E.
  Tyson, II

  
	
   

  	
   

  	
  Name: George E. Tyson II

  
	
   

  	
   

  	
  Title:   Vice President and Treasurer

  



 


50

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A.
  as Administrative Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael J. DeForge

  
	
   

  	
   

  	
  Name: Michael J. DeForge

  
	
   

  	
   

  	
  Title:   Vice President

  



 


51

















 


	
   

  	
  BARCLAYS BANK PLC, as
  Syndication Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sydney Dennis

  
	
   

  	
   

  	
  Name: Sydney Dennis

  
	
   

  	
   

  	
  Title: Director

  



 


52

















 


	
   

  	
  THE BANK OF NEW YORK, as
  Documentation Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Raymond J. Palmer

  
	
   

  	
   

  	
  Name: Raymond J. Palmer

  
	
   

  	
   

  	
  Title:   Vice President

  



 


53

















 


	
   

  	
  THE BANK OF
  TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH, as Documentation Agent and as a
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Matthew A. Ross

  
	
   

  	
   

  	
  Name: Matthew A. Ross

  
	
   

  	
   

  	
  Title: Vice
  President & Manager

  



 


54

















 


	
   

  	
  WELLS FARGO, NATIONAL
  ASSOCIATION, as Documentation Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patrick McCue

  
	
   

  	
   

  	
  Name: Patrick McCue

  
	
   

  	
   

  	
  Title: Vice President

  



 


55

















 


Schedule 1.1A


 


Revolving Commitments


 


	
  Lenders

  	
   

  	
  Revolving Commitment

  	
   

  
	
  JPMorgan Chase Bank, N.A.

  	
   

  	
  $

  	
  33,888,888.89

  	
   

  
	
  Barclays Bank PLC

  	
   

  	
  $

  	
  33,888,888.89

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  26,666,666.67

  	
   

  
	
  The Bank of New York

  	
   

  	
  $

  	
  26,666,666.67

  	
   

  
	
  The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch

  	
   

  	
  $

  	
  26,666,666.67

  	
   

  
	
  BMO Capital Markets Financing, Inc.

  	
   

  	
  $

  	
  26,666,666.67

  	
   

  
	
  BNP Paribas

  	
   

  	
  $

  	
  26,666,666.67

  	
   

  
	
  Citicorp USA, Inc.

  	
   

  	
  $

  	
  26,666,666.67

  	
   

  
	
  KeyBank National Association

  	
   

  	
  $

  	
  26,666,666.67

  	
   

  
	
  Morgan Stanley Bank

  	
   

  	
  $

  	
  26,666,666.67

  	
   

  
	
  The Royal Bank of Scotland PLC

  	
   

  	
  $

  	
  26,666,666.67

  	
   

  
	
  The Bank of Nova Scotia

  	
   

  	
  $

  	
  26,666,666.67

  	
   

  
	
  UBS Loan Finance LLC

  	
   

  	
  $

  	
  26,666,666.67

  	
   

  
	
  Wells Fargo, National Association

  	
   

  	
  $

  	
  26,666,666.67

  	
   

  
	
  Credit Suisse, Cayman Islands Branch

  	
   

  	
  $

  	
  17,777,777.77

  	
   

  
	
  William Street Commitment Corporation

  	
   

  	
  $

  	
  17,777,777.77

  	
   

  
	
  Lehman Brothers Bank, FSB

  	
   

  	
  $

  	
  17,777,777.77

  	
   

  
	
  Merrill Lynch Bank USA

  	
   

  	
  $

  	
  17,777,777.77

  	
   

  
	
  Mizuho Corporate Bank, Ltd.

  	
   

  	
  $

  	
  17,777,777.77

  	
   

  
	
  U.S. Bank National Association

  	
   

  	
  $

  	
  17,777,777.77

  	
   

  
	
  Amarillo National Bank

  	
   

  	
  $

  	
  5,555,555.56

  	
   

  
	
  Total

  	
   

  	
  $

  	
  500,000,000.00

  	
   

  



 


56
















 


SCHEDULE 1.1B


 


EXISTING LETTERS OF CREDIT


 


Northern States Power Company, a Minnesota corporation


 


1.             Letter of Credit No. NZS
336112


·                  Face Amount: $375,000.00


·                  Issued by: Wells Fargo


·                  Beneficiary: Hennepin County


·                  Expiration: April 13, 2007, with automatic
renewal


 


2.             Letter of Credit No. NZS336111


·                  Face Amount: $3,000,000.00


·                  Issued by: Wells Fargo


·                  Beneficiary: Nuclear Regulatory Commission


·                  Expiration: July 1, 2007, with automatic
renewal


 


3.             Letter of Credit No. NZS462606


·                  Face Amount: $5,319,335.00


·                  Issued by: Wells Fargo


·                  Beneficiary: Minnesota
Pollution Control Agency


·                  Expiration: November 30,
2007, with automatic renewal


 


4.             Letter of Credit No. NZS398198


·                  Face Amount: $10,000.00


·                  Issued by: Wells Fargo


·                  Beneficiary: City of Maple
Grove


·                  Expiration: May 15, 2007,
with automatic renewal


 


5.             Letter of Credit No. NZS336372


·                  Face Amount: $5,000.00


·                  Issued by: Wells Fargo


·                  Beneficiary: City of Sioux
Falls


·                  Expiration: October 22,
2007, with automatic renewal


 


6.             Letter of Credit No. NZS383500


·                  Face Amount: $5,000.00


·                  Issued by: Wells Fargo


·                  Beneficiary: Sherburne
County Public Works


·                  Expiration: December 31, 2007, with
automatic renewal


 


7.             Letter of Credit No. NZS353810


·                  Face Amount: $25,000.00


·                  Issued by: Wells Fargo


·                  Beneficiary: Employers Insurance of Wausau


·                  Expiration: February 1, 2007, with
automatic renewal


 


1

















 


8.             Letter of Credit No. NZS574050


·                  Face Amount: $24,307,800.00


·                  Issued by: Wells Fargo


·                  Beneficiary: American Fuel
Resources LLC


·                  Expiration: February 14,
2007, with no automatic renewal


 


9.             Letter of Credit No. NZS510340


·                  Face Amount: $1,110,000.00


·                  Issued by: Wells Fargo


·                  Beneficiary: New York
Independent System Operator


·                  Expiration: January 30,
2008, with automatic renewal


 


10.           Letter of Credit No. NZS583784


·                  Face Amount: $5,000.00


·                  Issued by: Wells Fargo


·                  Beneficiary: Brown’s Creek
Watershed District


·                  Expiration: November 3,
2007, with no automatic renewal


 


11.           Letter of Credit No. NZS586392


·                  Face Amount: $7,000.00


·                  Issued by: Wells Fargo


·                  Beneficiary: Rice Creek
Watershed District


·                  Expiration: December 7,
2007, with no automatic renewal


 


2

















 


NSP-M Schedules


 


SCHEDULE 4.1


 


FINANCIAL CONDITION


 


In
addition to the matters disclosed in the Financial Statements and Supplementary
Data in Item 8 of the Borrower’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2005 and the Notes thereto, as well as the matters
disclosed in the Financial Statements in Item 1 of the Borrower’s Quarterly
Report on Form 10-Q for the quarter ended September 30, 2006, and the
Notes thereto, the Borrower and its Significant Subsidiaries have the following
material Guarantee Obligations, contingent liabilities, liabilities for taxes, long-term
leases, forward or long-term commitments, including interest rate or foreign
currency swaps and exchange transactions, and obligations in respect of
derivatives:


 


In
November 2006, Northern States Power Company (Minnesota) (“NSP”) filed an
application with the Minnesota Public Utilities Commission in which it proposed
to purchase 375 MW of power from Manitoba Hydro beginning in 2015. Any power
purchase agreement would be subject to regulatory approval and negotiation and
execution of definitive documentation.


 


1

















 


SCHEDULE 4.2


 


EVENTS AND DEVELOPMENTS SINCE DECEMBER 31, 2005


 


1.             See disclosure regarding the Borrower and its
Subsidiaries in the Borrower’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2005 filed with the SEC (the “2005 Form 10-K”).


 


2.             See disclosure regarding the Borrower and its
Subsidiaries in the Borrower’s Quarterly Reports on Form 10-Q for the
quarters ended March 31, 2006, June 30, 2006 and September 30, 2006
filed with the SEC (the “2006 Form 10-Qs”).


 


3.             The following disclosure contains updated information
with respect to certain of the matters discussed in the 2005 Form 10-K and
the 2006 Form 10-Qs:


 


In
November 2006, Northern States Power Company (Minnesota) (“NSP”) filed an
application with the Minnesota Public Utilities Commission in which it proposed
to purchase 375 MW of power from Manitoba Hydro beginning in 2015. Any power
purchase agreement would be subject to regulatory approval and negotiation and
execution of definitive documentation.


 


1

















 


SCHEDULE 4.6


 


LITIGATION


 


1.             See disclosure regarding the Borrower and its
Subsidiaries (i) under the headings “ELECTRIC UTILITY OPERATIONS — Summary
of Recent Federal Regulatory Developments”, “— Ratemaking Principles — Pending and Recently Concluded Regulatory Proceedings
— FERC”, and “— Pending and
Recently Completed Regulatory Proceedings — MPUC” in Item 1 of the
Borrower’s 2005 Form 10-K, (ii) under the headings “Environmental
Contingencies” and “Legal Contingencies” in Note 11 to the Consolidated
Financial Statements of the Borrower and its subsidiaries as of and for the
year ended December 31, 2005, in Item 8 of the Borrower’s 2005 Form 10-K
and (iii) under the heading “Legal Proceedings” in Item 3 of the Borrower’s
2005 Form 10-K.


 


2.             See disclosure regarding the Borrower and its
Subsidiaries in Note 2 (Regulation) and Note 3 (Commitments and Contingent
Liabilities) in each of the 2006 Form 10-Qs.


 


3.             See disclosure regarding the Borrower and its
Subsidiaries in Item 1 of Part II (Legal Proceedings) in Borrower’s Form 10-Q
for the quarter ended September 30, 2006.


 


1

















 


SCHEDULE 4.7


 


OWNERSHIP OF PROPERTIES


 


Other
than those assets disposed of in the ordinary course of business, Borrower
and/or its Significant Subsidiaries have disposed of the following material
assets since September 30, 2006:


 


NONE


 


1

















 


SCHEDULE 7.2


 


EXISTING LIENS


Northern States Power Company, a Minnesota corporation


 


1.                                       Liens created
under the Indenture dated as of February 1, 1937, as supplemented and restated
by the Supplemental and Restated Trust Indenture dated May 1, 1988, between
the Borrower and BNY Midwest Trust Company, as successor trustee to Harris
Trust and Savings Bank, as supplemented and amended from time to time, which is
a Lien on all property, real, personal and mixed now owned or hereafter
acquired or to be acquired, securing indebtedness as described in the Borrower’s
Consolidated Statements of Capitalization contained in the Borrower’s 2006 Form 10-Q
dated September 30th, 2006.


 


1