exh10-1_050609.htm


    CLOSING
TABLE COPY

    


    Exhibit
10.1


     

    
 

    $75,000,000

     

    CREDIT
AGREEMENT

     

    among

     

    TEXAS-NEW MEXICO POWER
COMPANY,

    as the
Borrower,

    


    THE
LENDERS IDENTIFIED HEREIN

     

    JPMORGAN
CHASE BANK, N.A.,

    as
Administrative Agent

     

    UNION
BANK, N.A.,

    as
Syndication Agent

     

    and

    


    KEYBANK
NATIONAL ASSOCIATION,

    as
Documentation Agent

    


    


     

    
 

    DATED AS
OF APRIL 30, 2009

    


    


    


    


    


    


    


    


    J.P.
MORGAN SECURITIES
INC.                                                                                UNION
BANK,
N.A.                                                                 KEYBANK
NATIONAL

                          ASSOCIATION

    as Joint
Lead Arrangers and Co-Book Managers

    
      	
               

            


    

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


     

    
      
        	 	
                 TABLE
      OF CONTENTS

              	 
	  SECTION
      1  DEFINITIONS AND ACCOUNTING TERMS 	
                  1

              
	
                 1.1

              	 Definitions. 	 1
	
                 1.2

              	 Computation of
      Time Periods and Other Definitional Provisions.	 17
	
                 1.3

              	 Accounting
      Terms/Calculation of Financial Covenant. 	 17
	
                 1.4

              	 Time.   	 18
	
                 1.5

              	 Rounding of
      Financial Covenant. 	 18
	
                 1.6

              	 References to
      Agreements and Requirement of Laws. 	 18
	
                 1.7

              	  Letter
      of Credit Amounts. 	 18
	  SECTION
      2  CREDIT FACILITY 	 18
	
                 2.1

              	 Revolving
      Loans. 	 18
	
                 2.2

              	 Letter of
      Credit Subfacility. 	 20
	
                 2.3

              	 Continuations
      and Conversions. 	 26
	
                 2.4

              	
                Minimum
      Amounts. 

              	 27
	
                 2.5

              	 RESERVED.	 27
	
                 2.6

              	 RESERVED. 	 27
	
                 2.7

              	 Evidence of
      Debt. 	 27
	  SECTION
      3  GENERAL PROVISIONS APPLICABLE TO REVOLVING
      LOANS 	 27
	
                 3.1

              	 Interest. 	 27
	
                 3.2

              	 Payments
      Generally	 28
	
                 3.3

              	 Prepayments. 	 29
	
                 3.4

              	 Fees.     	 30
	
                 3.5

              	 Payment in
      full at Maturity. 	 30
	
                 3.6

              	 Computations
      of Interest and Fees. 	 30
	
                 3.7

              	 Pro Rata
      Treatment. 	 31
	
                 3.8

              	 Sharing of
      Payments.	 32
	
                 3.9

              	 Capital
      Adequacy. 	 32
	
                 
       3.10

              	 Eurodollar
      Provisions. 	 33
	
                 
       3.11

              	 Illegality.	 33
	
                 
       3.12

              	 Requirements
      of Law; Reserves on Eurodollar Loans. 	 33
	
                 
       3.13

              	 Taxes.	 34
	
                 
       3.14

              	 Compensation. 	 36
	
                 
       3.15

              	 Determination
      and Survival of Provisions. 	 37
	  SECTION
      4  CONDITIONS PRECEDENT TO CLOSING 	 38
	
                 4.1

              	 Closing
      Conditions. 	 38
	  SECTION
      5  CONDITIONS TO ALL EXTENSIONS OF CREDIT 	 41
	
                 5.1

              	 Funding
      Requirements. 	 41
	  SECTION
      6  REPRESENTATIONS AND WARRANTIES 	 41
	
                 6.1

              	 Organization
      and Good Standing. 	 41
	
                 6.2

              	 Due
      Authorization. 	 42
	
                 6.3

              	 No
      Conflicts. 	 42
	
                 6.4

              	 Consents. 	 42
	
                 6.5

              	 Enforceable
      Obligations. 	 42
	
                 6.6

              	 Financial
      Condition. 	 42
	
                 6.7

              	 No Material
      Change.	 43
	
                 6.8

              	 No
      Default. 	 43
	
                 6.9

              	 Litigation. 	 43
	
                 
       6.10

              	 Taxes. 	 43
	
                 
       6.11

              	 Compliance
      with Law. 	 43
	
                 
       6.12

              	 ERISA. 	 43
	 	 	 


      

       

       

      
        
          
          

        

        
          i

          
            

          

        

        
          
          

        

         

      

    

    
      	
               6.13

            	
              Use of
      Proceeds; Margin Stock.

            	 44
	
               6.14

            	 Government
      Regulation. 	 45
	
               6.15

            	 Solvency.	 45
	
               6.16

            	 Disclosure. 	 45
	
               6.17

            	 Environmental
      Matters. 	 45
	
               6.18

            	 RESERVED.	 45
	
               6.19

            	 RESERVED. 	 46
	  SECTION
      7  AFFIRMATIVE COVENANTS 	 46
	
               7.1

            	 Information
      Covenants. 	 46
	
               7.2

            	 Financial
      Covenant. 	 48
	
               7.3

            	 Preservation
      of Existence and Franchises. 	 48
	
               7.4

            	 Books and
      Records.	 48
	
               7.5

            	 Compliance
      with Law. 	 49
	
               7.6

            	 Payment of
      Taxes and Other Indebtedness. 	 49
	
               7.7

            	  Insurance. 	 49
	
               7.8

            	 Performance of
      Obligations. 	 49
	
               7.9

            	 Use of
      Proceeds. 	 49
	
               
       7.10

            	 Audits/Inspections. 	 49
	
               
       7.11

            	 Ownership of
      Certain Subsidiaries. 	 50
	  SECTION
      8  NEGATIVE COVENANTS 	 50
	
               8.1

            	
               Nature of
      Business. 

            	 50
	
               8.2

            	 Consolidation
      and Merger. 	 50
	
               8.3

            	 Sale or Lease
      of Assets. 	 50
	
               8.4

            	 Affiliate
      Transactions. 	 50
	
               8.5

            	 Liens. 	 50
	
               8.6

            	 Accounting
      Changes. 	 52
	
               8.7

            	 Burdensome
      Agreements. 	 52
	  SECTION
      9  EVENTS OF DEFAULT	 52
	
               9.1

            	 Events of
      Default. 	 52
	
               9.2

            	 Acceleration;
      Remedies. 	 54
	
               9.3

            	 Allocation of
      Payments After Event of Default. 	 55
	  SECTION
      10  AGENCY PROVISIONS 	 56
	
               10.1

            	 Appointment
      and Authority. 	 56
	
               10.2

            	 Rights as a
      Lender. 	 56
	
               10.3

            	 Exculpatory
      Provisions. 	 57
	
               10.4

            	 Reliance by
      Administrative Agent.	 58
	
               10.5

            	 Delegation of
      Duties. 	 58
	
               10.6

            	 Resignation of
      Administrative Agent. 	 58
	
               10.7

            	 Non-Reliance
      on Administrative Agent and Other Lenders. 	 59
	
               10.8

            	 No Other
      Duties, Etc.	 59
	
               10.9

            	 Administrative
      Agent May File Proofs of Claim. 	 59
	  SECTION
      11  MISCELLANEOUS 	 60
	
               11.1

            	 Notices;
      Effectiveness; Electronic Communication. 	 60
	
               11.2

            	 Right of
      Set-Off. 	 62
	
               11.3

            	 Successors and
      Assigns. 	 62
	
               11.4

            	 No Waiver;
      Remedies Cumulative. 	 65
	
               11.5

            	 Attorney
      Costs, Expenses, Taxes and Indemnification by Borrower. 	 65
	
               11.6

            	 Amendments,
      Etc. 	 67
	
               11.7

            	 Counterparts. 	 67
	
               11.8

            	 Headings. 	 68
	
               11.9

            	 Survival of
      Indemnification and Representations and Warranties. 	 68


    

     

    
      
        
        

      

      
        ii

        
          

        

      

      
        
        

      

    

     

    
      	
               
       11.10

            	 Governing Law;
      Venue; Service. 	 69
	
               
       11.11

            	 Waiver of Jury
      Trial; Waiver of Consequential Damages. 	 69
	
               
       11.12

            	 Severability. 	 69
	
               
       11.13

            	 Further
      Assurances. 	 69
	
               
       11.14

            	 Confidentiality. 	 69
	
               
       11.15

            	 Entirety. 	 70
	
               
       11.16

            	 Binding
      Effect; Continuing Agreement. 	 70
	
               
       11.17

            	 Regulatory
      Statement. 	 71
	
               
       11.18

            	 USA Patriot
      Act Notice. 	 71
	
               
       11.19

            	 Acknowledgment. 	 71
	
               
       11.20

            	 Replacement of
      Lenders. 	 71
	 	 	 


    

     

     

    
      
         


      

      
        iii  

        
          

        

      

      
         


      

    


    


    


     

    
      	SCHEDULES	 
	
               

            	 
	Schedule
      1.1(a)     	 Pro Rata
      Shares
	
              Schedule
      1.1(c) 

            	 Existing
      Letters of Credit
	Schedule
    11.1	 Notices
	Schedule
      11.3    	 Processing and
      Recording Fees
	 	 
	 	 
	 EXHIBITS	 
	 	 
	 Exhibit
      1.1.1 	 Form of FMB
      Delivery Agreement
	 Exhibit
      1.1.2   	 Form of Third
      Supplemental Indenture
	 Exhibit
      2.1(b)  	 Form of Notice
      of Borrowing
	 Exhibit
      2.1(e)	 Form of
      Note
	 Exhibit
      2.3  	 Form of Notice
      of Continuation/Conversion
	 Exhibit
      7.1(c)   	 Form of
      Compliance Certificate
	 Exhibit
      11.3(b) 	 Form of
      Assignment and Assumption
	 	 


    

     

     

    


                   

                        

                            

                        

    


    


     

    


                               

                            

                            

                             


                                


                           

                          


    



    
      
         


      

      
        iv 


        
          

        

      

      
         


      

    


    CREDIT
AGREEMENT

    


    


    THIS
CREDIT AGREEMENT (this “Credit Agreement”) is
entered into as of April 30, 2009 among TEXAS-NEW MEXICO POWER COMPANY, a Texas
corporation (together with its successors and permitted assigns, the “Borrower”), the
Lenders and JPMORGAN CHASE BANK, N.A., as Administrative Agent.

    


    RECITALS

    


    WHEREAS, the Borrower has
requested that the Lenders make available a senior revolving credit facility in
an aggregate principal amount of $75,000,000; and

    


    WHEREAS, the Lenders party
hereto have agreed to make the senior revolving credit facility available on the
terms and conditions hereinafter set forth.

    


    NOW, THEREFORE, IN CONSIDERATION
of the premises and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:

    


    


    SECTION
1

    


    DEFINITIONS
AND ACCOUNTING TERMS

    


    1.1              
  Definitions.

    


    The
following terms shall have the meanings specified herein unless the context
otherwise requires.  Defined terms herein shall include in the
singular number the plural and in the plural the singular:

    


    “2009 Term Loan Credit
Agreement” means a term loan credit agreement dated as of March 25, 2009,
among the Borrower, the lenders parties thereto, and Union Bank, N.A., as
administrative agent on behalf of such lenders, as it may be amended,
supplemented, extended or otherwise modified form time to time.

    


    “Adjusted Eurodollar
Rate” means the Eurodollar Rate plus the Applicable
Percentage.

    


    “Administrative Agent”
means JPMCB or any successor administrative agent appointed pursuant to Section
10.6.

    


    “Administrative Agent’s
Office” means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 11.1 or such
other address or account as the Administrative Agent may from time to time
notify the Borrower and the Lenders.

    


    “Administrative Fees”
has the meaning set forth in Section 3.4(d).

    


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

    


    “Affiliate” means,
with respect to any Person, any other Person directly or indirectly controlling
(including but not limited to all directors and officers of such Person),
controlled by or 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    under
direct or indirect common control with such Person.  A Person shall be
deemed to control another Person if such Person possesses, directly or
indirectly, the power (a) to vote 10% or more of the securities having ordinary
voting power for the election of directors of such Person or (b) to direct or
cause direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise.

    


    “Agent-Related
Persons” means the Administrative Agent, together with its Affiliates and
the officers, directors, employees, agents and attorneys-in-fact of the
Administrative Agent and its Affiliates.

    


    “Applicable
Percentage” means, for Eurodollar Loans, Base Rate Loans, L/C Fees and
Commitment Fees, the appropriate applicable percentages, in each case (subject
to the exceptions indicated below) corresponding to the Debt Rating in effect as
of the most recent Calculation Date as shown below:

    


    
      	
              Pricing
      Level

            	
              Debt
      Rating

            	
              Applicable
      Percentage for LIBOR-based Loans and Letter of Credit Fees

            	
              Applicable
      Percentage for Base Rate Loans

            	
              Applicable
      Percentage for Commitment Fees

            
	
              I

            	
              A-/A3

            	
              2.50%

            	
              1.50%

            	
              0.500%

            
	
              II

            	
              BBB+/Baa1

            	
              3.00%

            	
              2.00%

            	
              0.625%

            
	
              III

            	
              BBB/Baa2

            	
              3.50%

            	
              2.50%

            	
              0.750%

            
	
              IV

            	
              BBB-/Baa3

            	
              4.00%

            	
              3.00%

            	
              1.000%

            
	
              V*

            	
              <BBB-
      or unrated/

              <Baa3
      or unrated

            	
              4.50%

            	
              3.50%

            	
              1.350%

            


    

    


    *           If
the Debt Rating by only one of S&P or Moody’s is below BBB- or Baa3,
respectively, Pricing Level V shall apply.

    


    The
Applicable Percentage shall be determined based on the applicable Debt Ratings
and adjusted on the date one Business Day after the date on which an applicable
Debt Rating is upgraded or downgraded in a manner which requires a change in the
then applicable Pricing Level set forth above (the date the Debt Ratings begin
to apply and each such adjustment date referred to herein as a “Calculation Date”).
If at any time there is a split in the Borrower’s Debt Rating between S&P
and Moody’s and the Debt Ratings from S&P and Moody’s shall be BBB- or
better and Baa3 or better, respectively, the Applicable Percentage shall be
determined by the higher of the two Debt Ratings (i.e. the lower pricing); provided that, except
as otherwise provided in the footnote to the table set forth above, if the two
Debt Ratings are more than one level apart, the Applicable Percentage shall be
based on the Debt Rating which is one level higher than the lower
rating.  If the Borrower does not have a Debt Rating from either
S&P or Moody’s, then Pricing Level V shall apply.  Each Applicable
Percentage shall be effective from one Calculation Date until the next
Calculation Date.  Any adjustment in the Applicable Percentage shall
be applicable to all existing Loans as well as any new Loans
made.  The applicable Pricing Level for Applicable Percentage, as of
the Closing Date, shall be Pricing Level III.

    


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

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

    


    “Arrangers” means J.P.
Morgan Securities Inc., Key Bank National Association and Union Bank, N.A., in
each case together with its successors and/or assigns.

    


    “Assignee Group” means
two or more Eligible Assignees that are Affiliates of one another or two or more
Approved Funds managed by the same investment advisor.

    


    “Assignment and
Assumption” means an Assignment and Assumption substantially in the form
of Exhibit
11.3(b).

    


    “Authorized Officer”
means any of the president, chief executive officer, chief financial officer or
treasurer of the Borrower.

    


    “Bankruptcy Code”
means the Bankruptcy Code in Title 11 of the United States Code, as amended,
modified, succeeded or replaced from time to time.

    


    “Base Rate” means for
any day a fluctuating rate per annum equal to the highest of (a) the Federal
Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as
publicly announced from time to time by the Administrative Agent as its “prime
rate” (the “Prime
Rate”) and (c) the Adjusted Eurodollar Rate for a one month Interest
Period on such day (or if such day is not a Business Day, the immediately
preceding Business Day) plus 1%, provided that for the avoidance of doubt, the
Adjusted Eurodollar Rate for any day shall be based on the rate appearing on the
Reuters BBA Libor Rates page 3750 (or on any successor or substitute page of
such page) at approximately 11:00 a.m. (London time) on such day.  The
Prime Rate is a rate publicly announced from time to time by the Administrative
Agent as its prime rate in effect at its principal office in New York City, and
is used as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate.  Any change in the Base Rate due
to a change in the Prime Rate, the Federal Funds Rate or the Adjusted Eurodollar
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Federal Funds Rate or the Adjusted Eurodollar Rate,
respectively.

    


    “Base Rate Loan” means
any Revolving Loan bearing interest at a rate determined by reference to the
Base Rate.

    


    “Borrower Obligations”
means, with respect to the Borrower, without duplication, all of the obligations
of the Borrower to the Lenders and the Administrative Agent, whenever arising,
under this Credit Agreement, the Notes or any of the other Credit
Documents.

    


    “Borrowing” means a
borrowing consisting of simultaneous Revolving Loans of the same Type and, in
the case of Eurodollar Loans, having the same Interest Period made by each of
the Lenders pursuant to Section 2.1.

    


    “Business Day” means
any day other than a Saturday, a Sunday, a legal holiday or a day on which
banking institutions are authorized or required by Law or other governmental
action to close in New York, New York; provided that in the
case of Eurodollar Loans such day is also a day on which dealings are conducted
by and between banks in the London interbank market.

    


    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

    “Capital Stock” means
(a) in the case of a corporation, all classes of capital stock of such
corporation, (b) in the case of a partnership, partnership interests (whether
general or limited), (c) in the case of a limited liability company, membership
interests and (d) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person; including, in each case, all warrants, rights or
options to purchase any of the foregoing.

    


    “Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form
and substance satisfactory to the Administrative Agent and the L/C
Issuer.

    


    “Change of Control”
means the occurrence of any of the following:  (a) any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee,
agent or other fiduciary or administrator of any such plan) becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that a person or group shall be deemed to have
“beneficial ownership” of all Capital Stock that such person or group has the
right to acquire (such right, an “option right”),
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of  twenty-five (25%) of the Capital
Stock of the Parent entitled to vote for members of the board of directors or
equivalent governing body of the Parent on a fully diluted basis (and taking
into account all such securities that such person or group has the right to
acquire pursuant to any option right); (b) during any period of 24 consecutive
months, a majority of the members of the board of directors or other equivalent
governing body of the Parent cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of such
period, (ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above constituting at
the time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body
(excluding, in the case of both clause (ii) and clause (iii), any individual
whose initial nomination for, or assumption of office as, a member of that board
or equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more
directors by any person or group other than a solicitation for the election of
one or more directors by or on behalf of the board of directors); (c) any Person
or two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition of the power to
exercise, directly or indirectly, a controlling influence over the management or
policies of the Parent, or control over the Voting Stock of the Parent on a
fully-diluted basis (and taking into account all such Voting Stock that such
Person or group has the right to acquire pursuant to any option right)
representing twenty-five (25%)  or more of the combined voting power
of such Voting Stock; or (d) the Parent shall cease to own, directly or
indirectly, and free and clear of all Liens or other encumbrances, at least 100%
of the outstanding Voting Stock of the Borrower on a fully diluted
basis.

    


    “Closing Date” means
the date of this Credit Agreement, which is the first date all the conditions
precedent in Section 4.1 are satisfied or waived in accordance with Section
4.1.

    


    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    “Code” means the
Internal Revenue Code of 1986 and the rules and regulations promulgated
thereunder, as amended, modified, succeeded or replaced from time to
time.

    


    “Commitment” means, as
to each Lender, its obligation to (a) make Revolving Loans to the Borrower
pursuant to Section 2.1 and (b) fund or purchase Participation Interests in L/C
Obligations pursuant to Section 2.2, in an aggregate principal amount at any one
time outstanding not to exceed such Lender’s Pro Rata Share of the Revolving
Committed Amount as set forth opposite such Lender’s name on Schedule 1.1(a) or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Credit Agreement.

    


    “Compensation Period”
has the meaning set forth in Section 3.2(c)(ii).

    


    “Compliance
Certificate” means a fully completed and duly executed officer’s
certificate in the form of Exhibit 7.1(c),
together with a Covenant Compliance Worksheet.

    


    “Consolidated
Capitalization” means, with respect to any Person, the sum of (a) all of
the shareholders’ equity or net worth of such Person and its Subsidiaries, as
determined in accordance with GAAP plus (b) Consolidated Indebtedness of such
Person and its Subsidiaries plus (c) the outstanding principal amount of
Preferred Stock plus (d) 75% of the outstanding principal amount of Specified
Securities of such Person and its Subsidiaries.

    


    “Consolidated
Indebtedness” means, as of any date of determination, with respect to any
Person and its Subsidiaries on a consolidated basis, an amount equal to (a) all
Indebtedness of such Person and its Subsidiaries as of such date minus (b) the outstanding
principal amount of stranded cost securitization bonds of such Person and its
Subsidiaries minus (c) an amount equal to the lesser of (i) 75% of the
outstanding principal amount of Specified Securities of such Person and its
Subsidiaries or (ii) 10% of Consolidated Capitalization (calculated assuming
clause (i) above is applicable).

    


    “Contingent
Obligation” means, with respect to any Person, any direct or indirect
liability of such Person with respect to any Indebtedness, liability or other
obligation (the “primary obligation”) of another Person (the “primary obligor”),
whether or not contingent, (a) to purchase, repurchase or otherwise acquire such
primary obligation or any property constituting direct or indirect security
therefor, (b) to advance or provide funds (i) for the payment or discharge of
any such primary obligation or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or financial condition of
the primary obligor, (c) 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 in respect thereof to make payment of such
primary obligation or (d) otherwise to assure or hold harmless the owner of any
such primary obligation against loss or failure or inability to perform in
respect thereof; provided, however, that, with
respect to the Borrower and its Subsidiaries, the term Contingent Obligation
shall not include endorsements for collection or deposit in the ordinary course
of business.  The amount of any Contingent Obligation of any Person
shall be deemed to be an amount equal to the maximum amount of such Person’s
liability with respect to the stated or determinable amount of the primary
obligation for which such Contingent Obligation is incurred or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder).

    


    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

    “Covenant Compliance
Worksheet” shall mean a fully completed worksheet in the form of Schedule
I to Exhibit
7.1(c).

    


    “Credit Agreement” has
the meaning set forth in the Preamble hereof.

    


    “Credit Documents”
means this Credit Agreement, the Notes, any Notice of Borrowing, any Notice of
Continuation/Conversion, the Third Supplemental Indenture, the First Mortgage
Bonds, the FMB Delivery Agreement and any other document, agreement or
instrument entered into or executed in connection with the foregoing (other than
the FMB Mortgage).

    


    “Credit Exposure” has
the meaning set forth in the definition of “Required Lenders”.

    


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

    


    “Debt Rating” means
the long term secured senior non-credit enhanced debt rating of the Borrower by
S&P and Moody’s.

    


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

    


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

    


    “Default Rate” means
an interest rate equal to two percent (2%) plus the rate that otherwise would be
applicable (or if no rate is applicable, the Base Rate plus two percent (2%) per
annum).

    


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

     

    
      
        
        

      

      
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    business
or custodian appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in any such proceeding or
appointment.

    


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

    


    “Eligible Assignee”
means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d)
any other Person (other than a natural person) approved by the Administrative
Agent, the L/C Issuer and the Borrower (such approval not to be unreasonably
withheld or delayed); provided that (i) the
Borrower’s consent is not required during the existence and continuation of a
Default or an Event of Default, (ii) approval by the Borrower shall be deemed
given if no objection is received by the assigning Lender and the Administrative
Agent from the Borrower within five Business Days after notice of such proposed
assignment has been delivered to the Borrower and (iii) neither the Borrower nor
any Subsidiary or Affiliate of the Borrower shall qualify as an Eligible
Assignee.

    


    “Environmental Claims”
means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, accusations, allegations, notices of
noncompliance or violation, investigations (other than internal reports prepared
by any Person in the ordinary course of its business and not in response to any
third party action or request of any kind) or proceedings relating in any way to
any actual or alleged violation of or liability under any Environmental Law or
relating to any permit issued, or any approval given, under any such
Environmental Law (collectively, “Claims”), including,
without limitation, (a) any and all Claims by Governmental Authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law and (b) any and all Claims by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Substances or arising
from alleged injury or threat of injury to human health or the
environment.

    


    “Environmental Laws”
shall mean any and all federal, state and local laws, statutes, ordinances,
rules, regulations, permits, licenses, approvals, rules of common law and orders
of courts or Governmental Authorities, relating to the protection of human
health or occupational safety or the environment, now or hereafter in effect and
in each case as amended from time to time, including, without limitation,
requirements pertaining to the manufacture, processing, distribution, use,
treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Substances.

    


    “ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
and any successor statute, and all rules and regulations from time to time
promulgated thereunder.

    


    “ERISA Affiliate”
means, with respect to the Borrower, any Person (including any trade or
business, whether or not incorporated) that would be deemed to be under “common
control” with, or a member of the same “controlled group” as, the Borrower or
any of its Subsidiaries, within the meaning of Sections 414(b), (c), (m) or (o)
of the Code or Section 4001 of ERISA.

    


    “ERISA Event” means,
with respect to the Borrower: (a) a Reportable Event with respect to a Plan or a
Multiemployer Plan, (b) a complete or partial withdrawal by the Borrower, any of
its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan, or the
receipt by the Borrower, any of its Subsidiaries or any ERISA Affiliate of
notice from a Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA, (c) the distribution by the


     

    
      
        
        

      

      
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    Borrower,
any of its Subsidiaries or any ERISA Affiliate under Section 4041 or 4041A of
ERISA of a notice of intent to terminate any Plan or the taking of any action to
terminate any Plan, (d) the commencement of proceedings by the PBGC under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Borrower, any of its Subsidiaries or
any ERISA Affiliate of a notice from any Multiemployer Plan that such action has
been taken by the PBGC with respect to such Multiemployer Plan, (e) the
institution of a proceeding by any fiduciary of any Multiemployer Plan against
the Borrower, any of its Subsidiaries or any ERISA Affiliate to enforce Section
515 of ERISA, which is not dismissed within thirty (30) days, (f) the imposition
upon the Borrower, any of its Subsidiaries or any ERISA Affiliate of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, or the imposition or threatened
imposition of any Lien upon any assets of the Borrower, any of its Subsidiaries
or any ERISA Affiliate as a result of any alleged failure to comply with the
Code or ERISA in respect of any Plan, (g) the engaging in or otherwise becoming
liable for a nonexempt Prohibited Transaction by the Borrower, any of its
Subsidiaries or any ERISA Affiliate, (h) a violation of the applicable
requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under
Section 401(a) of the Code by any fiduciary of any Plan for which the Borrower,
any of its Subsidiaries or any ERISA Affiliate may be directly or indirectly
liable, (i) the adoption of an amendment to any Plan that, pursuant to Section
401(a)(29) of the Code or Section 307 of ERISA, would result in the loss of
tax-exempt status of the trust of which such Plan is a part if the Borrower, any
of its Subsidiaries or any ERISA Affiliate fails to timely provide security to
such Plan in accordance with the provisions of such sections or (j) the
withdrawal of the Borrower, any of its Subsidiaries or any ERISA Affiliate from
a Multiple Employer Plan during a play year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or the
termination of a Multiple Employer Plan.

    


    “Eurodollar Loan”
means a Revolving Loan bearing interest based at a rate determined by reference
to the Adjusted Eurodollar Rate.

    


    “Eurodollar Rate”
means, for any Interest Period with respect to a Eurodollar Loan, the rate per
annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to
time) at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period, for Dollar deposits (for delivery on
the first day of such Interest Period) with a term equivalent to such Interest
Period.  If such rate is not available at such time for any reason,
then the “Eurodollar Rate” for such Interest Period shall be the rate per annum
determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Loan being made, continued or
converted by JPMCB and with a term equivalent to such Interest Period would be
offered by JPMCB’s London Branch to major banks in the London interbank
eurodollar market at their request at approximately 4:00 p.m. (London time)
two Business Days prior to the commencement of such Interest
Period.

    


    “Event of Default” has
the meaning set forth in Section 9.1.

    


    “Exchange Act” means
the Securities Exchange Act of 1934, and the rules and regulations promulgated
thereunder, as amended, modified, succeeded or replaced from time to
time.

    


    “Existing Credit
Agreement” means that certain Amended and Restated Credit Agreement,
dated as of August 15, 2005, by and among the Parent and First Choice
Power,  L.P., as borrowers, the lenders and financial institutions
parties thereto, Bank of America, N.A., as administrative agent, 

     

    
      
        
        

      

      
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    Wachovia
Bank, National Association, as syndication agent, and Citibank, N.A., JPMCB and
Union Bank, N.A. (formerly known as Union Bank of California, N.A.), as
co-documentation agents, as it may be amended, extended or otherwise modified
from time to time.

    


    “Existing Letters of
Credit” means the letters of credit set forth on Schedule
1.1(c).

    


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

    


    “Fee Letters” means
those certain letter agreements, each dated as of April 14, 2009, among (a) the
Borrower, JPMCB, as administrative agent, and J.P. Morgan Securities Inc. and
(b) the Borrower, JPMCB and the Arrangers, in each case as amended, modified,
supplemented or restated from time to time.

    


    “Financial Officer”
means the chief financial officer,  principal accounting officer or
treasurer of the Borrower.

    


    “First Mortgage Bonds”
means the First Mortgage Bonds, Due 2011, Series 2009C, which shall be
substantially in the form of Exhibit A to the Third Supplemental
Indenture.

    


    “First Mortgage Bond
Trustee” means The Bank of New York Mellon Trust Company, N.A., as
trustee under the FMB Mortgage, together with its permitted successors and
assigns in such capacity.

    


    “Fiscal Quarter” means
each of the calendar quarters ending as of the last day of each March, June,
September and December.

    


    “Fiscal Year” means
the calendar year ending December 31.

    


    “FMB Delivery
Agreement” means a bond delivery agreement whereby the Administrative
Agent (a) acknowledges delivery of the First Mortgage Bonds and (b) agrees to
hold the First Mortgage Bonds for the benefit of the Lenders and to distribute
all payments made by the Borrower on account thereof to the Lenders,
substantially in the form of Exhibit 1.1.1.

    


    “FMB Mortgage” means
that certain First Mortgage Indenture, dated as of March 23, 2009, between the
Borrower and the First Mortgage Bond Trustee, as amended, restated or otherwise
modified from time to time.

    


    “FMB Mortgage
Documents” means the FMB Mortgage, together with any supplemental
indentures issued pursuant thereto, as the same may be amended, restated,
supplemented or otherwise modified from time to time.

    


    “Foreign Lender” has
the meaning set forth in Section 3.13(f).

    


    
      
        
        

      

      
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    “Fund” means any
Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.

    


    “GAAP” means generally
accepted accounting principles in the United States set forth in the opinions
and pronouncements of the Accounting Principles Board and the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting profession) or that
are promulgated by any Governmental Authority having appropriate
jurisdiction.

    


    “Government Acts” has
the meaning set forth in Section 2.2(k).

    


    “Governmental
Authority” means any domestic or foreign nation or government, any state
or other political subdivision thereof and any central bank thereof, any
municipal, local, city or county government, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government (including, without limitation, any state dental board)
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.

    


    “Granting Lender” has
the meaning specified in Section 11.3(h).

    


    “Hazardous Substances”
means any substances or materials (a) that are or become defined as hazardous
wastes, hazardous substances, pollutants, contaminants or toxic substances under
any Environmental Law, (b) that are defined by any Environmental Law as toxic,
explosive, corrosive, ignitable, infectious, radioactive, mutagenic or otherwise
hazardous, (c) the presence of which require investigation or response under any
Environmental Law, (d) that constitute a nuisance, trespass or health or safety
hazard to Persons or neighboring properties, (e) that consist of underground or
aboveground storage tanks, whether empty, filled or partially filled with any
substance, or (f) that contain, without limitation, asbestos, polychlorinated
biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum
derived substances or wastes, crude oil, nuclear fuel, natural gas or synthetic
gas.

    


    “Hedging Agreements”
means, collectively, interest rate protection agreements, equity index
agreements, foreign currency exchange agreements, option agreements or other
interest or exchange rate or commodity price hedging agreements (other than
forward contracts for the delivery of power or gas written by the Borrower to
its jurisdictional and wholesale customers in the ordinary course of
business).

    


    “Indebtedness” means,
with respect to any Person (without duplication), (a) all indebtedness and
obligations of such Person for borrowed money or in respect of loans or advances
of any kind, (b) all obligations of such Person evidenced by notes, bonds,
debentures or similar instruments, (c) all reimbursement obligations of such
Person with respect to surety bonds, letters of credit and bankers’ acceptances
(in each case, whether or not drawn or matured and in the stated amount
thereof), (d) all obligations of such Person to pay the deferred purchase price
of property or services, (e) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person, (f) all obligations of such Person as lessee under
leases that are or are required to be, in accordance with GAAP, recorded as
capital leases, to the extent such obligations are required to be so recorded,
(g) the net termination obligations of such Person under any Hedging Agreements,
calculated as 

     

    
      
        
        

      

      
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    of any
date as if such agreement or arrangement were terminated as of such date in
accordance with the applicable rules under GAAP, (h) all Contingent Obligations
of such Person, (i) all obligations and liabilities of such Person incurred in
connection with any transaction or series of transactions providing for the
financing of assets through one or more securitizations or in connection with,
or pursuant to, any synthetic lease or similar off-balance sheet financing, (j)
the aggregate amount of uncollected accounts receivable of such Person subject
at the time of determination to a sale of receivables (or similar transaction)
to the extent such transaction is effected with recourse to such Person (whether
or not such transaction would be reflected on the balance sheet of such Person
in accordance with GAAP), (k) all Specified Securities and (l) all indebtedness
referred to in clauses (a) through (k) above secured by any Lien on any property
or asset owned or held by such Person regardless of whether the indebtedness
secured thereby shall have been assumed by such Person or is nonrecourse to the
credit of such Person.

    


    “Indemnified
Liabilities” has the meaning set forth in Section 11.5(b).

    


    “Indemnitees” has the
meaning set forth in Section 11.5(b).

    


    “Interest Payment
Date” means, (a) as to any Eurodollar Loan, the last day of each Interest
Period applicable to such Loan, the date of any prepayment of the Loans pursuant
to Section 3.3 and the Maturity Date; provided, however, that if any
Interest Period for a Eurodollar Loan exceeds three months, the respective dates
that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates and (b) as to any Base Rate Loan, the last
Business Day of each Fiscal Quarter, the date of any prepayment of the Loans
pursuant to Section 3.3 and the Maturity Date.

    


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

    


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

    


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

    


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

    


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

    


    “JPMCB” means JPMorgan
Chase Bank, N.A., together with its successors and/or assigns.

    


    “Laws” means,
collectively, all international, foreign, federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental 

     

    
      
        
        

      

      
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    Authority
charged with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.

    


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

    


    “L/C Credit Extension”
means, with respect to any Letter of Credit, the issuance thereof, the extension
of the expiry date thereof, the renewal or increase of the amount thereof or any
extension of credit resulting from a drawing thereunder that has not been
reimbursed.

    


    “L/C Fees” has the
meaning set forth in Section 3.4(c).

    


    “L/C Fronting Fee” has
the meaning set forth in Section 2.2(i).

    


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

    


    “L/C Obligations”
means, as of any date of determination, the aggregate amount available to be
drawn under all outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all L/C Borrowings.  For purposes
of computing the amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section 1.7.  For
all purposes of this Credit Agreement, if on any date of determination a Letter
of Credit has expired by its terms but any amount may still be drawn thereunder
by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit
shall be deemed to be “outstanding” in the amount so remaining available to be
drawn.

    


    “Lender” means any of
the Persons identified as a “Lender” on the signature pages hereto, any Eligible
Assignee which may become a Lender by way of assignment in accordance with the
terms hereof, together with their successors and permitted assigns.

    


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

    


    “Letter of Credit”
means any letter of credit issued hereunder and shall include the Existing
Letters of Credit.

    


    “Letter of Credit
Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C
Issuer.

    


    “Letter of Credit Expiration
Date” means the day that is ten days prior to the Maturity Date then in
effect (or, if such day is not a Business Day, the next preceding Business
Day).

    


    “Letter of Credit
Sublimit” means an amount equal to TEN MILLION DOLLARS
($10,000,000).  The Letter of Credit Sublimit is part of, and
not in addition to, the Revolving Committed Amount.

    


    “Lien” means any
mortgage, pledge, hypothecation, assignment, security interest, lien (statutory
or otherwise), preference, priority, charge or other encumbrance of any nature,
whether 

     

    
      
        
        

      

      
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    voluntary
or involuntary, including, without limitation, the interest of any vendor or
lessor under any conditional sale agreement, title retention agreement, capital
lease or any other lease or arrangement having substantially the same effect as
any of the foregoing.

    


    “Mandatory Borrowing”
has the meaning set forth in Section 2.2(d).

    


    “Margin Stock” has the
meaning ascribed to such term in Regulation U.

    


    “Material Adverse
Change” means a material adverse change in the condition (financial or
otherwise), operations, business, performance, properties or assets of the
Borrower and its
Subsidiaries, taken as a whole.

    


    “Material Adverse
Effect” means, with respect to the Borrower, a material adverse effect
upon (a) the business, assets, liabilities (actual or contingent), operations,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries, taken as a whole, (b) the ability of the Borrower or any of its
Subsidiaries to perform its obligations under this Credit Agreement or any of
the other Credit Documents or the FMB Mortgage, (c) the legality, validity or
enforceability of this Credit Agreement or any of the other Credit Documents or
the FMB Mortgage or the rights and remedies of the Administrative Agent and the
Lenders hereunder and thereunder or (d) the Mortgaged Property taken as a whole,
the Lien of the FMB Mortgage Documents on such Mortgaged Property in favor of
the First Mortgage Bond Trustee for the benefit of the holders of First Mortgage
Bonds, including the Administrative Agent (for its benefit and for the benefit
of the Lenders) or the priority of such Lien.

    


    “Maturity Date” means
April 29,  2011.

    


    “Moody’s” means
Moody’s Investors Service, Inc. and its successors.

    


    “Mortgaged Property”
means the real property, fixtures and personal property identified in the FMB
Mortgage Documents and is now or hereafter owned by Borrower, but excluding
therefrom all “Excepted Property” (as such term is defined in the FMB Mortgage)
and such other properties as have been released or excepted from the Lien of the
FMB Mortgage Documents.

    


    “Multiemployer Plan”
means, with respect to the Borrower, any “multiemployer plan” within the meaning
of Section 4001(a)(3) of ERISA to which the Borrower, any of its
Subsidiaries or any ERISA Affiliate makes, is making or is obligated to make
contributions or has made or been obligated to make contributions.

    


    “Multiple Employer
Plan” means, with respect to the Borrower, a Single Employer Plan to
which the Borrower, any of its Subsidiaries or any ERISA Affiliate and at least
one employer other than the Borrower, any of its Subsidiaries or any ERISA
Affiliate are contributing sponsors.

    


    “Note Facilities
Documentation” means the FMB Mortgage, the First Supplemental Indenture
dated as of March 23, 2009 issued pursuant thereto, the Second Supplemental
Indenture dated as of March 25, 2009 issued pursuant thereto, the Third
Supplemental Indenture issued pursuant thereto and any other supplemental
indentures, notes or other securities issued pursuant thereto or in connection
therewith, as the same may be amended, supplemented, extended or otherwise
modified from time to time.

    


    “Notes” means the
promissory notes of the Borrower in favor of each of the Lenders evidencing the
Revolving Loans made to the Borrower provided pursuant to Section 2.1,
individually 

     

    
      
        
        

      

      
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    or
collectively, as appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time and as evidenced
in the form of Exhibit
2.1(e).

    


    “Notice of Borrowing”
means a request by the Borrower for a Revolving Loan in the form of Exhibit
2.1(b).

    


    “Notice of
Continuation/Conversion” means a request by the Borrower to continue an
existing Eurodollar Loan to a new Interest Period or to convert a Eurodollar
Loan to a Base Rate Loan or a Base Rate Loan to a Eurodollar Loan, in the form
of Exhibit
2.3.

    


    “Other Taxes” has the
meaning set forth in Section 3.13(b).

    


    “PBGC” means the
Pension Benefit Guaranty Corporation and any successor thereto.

    


    “Parent” means PNM
Resources, Inc., a New Mexico corporation, together with its successors and
permitted assigns.

    


    “Participant” has the
meaning set forth in Section 11.3(d).

    


    “Participation
Interest” means (a) the purchase by a Lender of a participation in
Letters of Credit or L/C Obligations as provided in Section 2.2 or (b) the
purchase by a Lender of a participation in any Revolving Loan as provided in
Section 3.8.

    


    “Person” means any
individual, partnership, joint venture, firm, corporation, limited liability
company, association, trust or other enterprise (whether or not incorporated),
or any Governmental Authority.

    


    “Plan” means, with
respect to the Borrower, any “employee benefit plan” (within the meaning of
Section 3(3) of ERISA) which is covered by ERISA and with respect to which the
Borrower, any of its Subsidiaries or any ERISA Affiliate is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA be deemed
to be) an “employer” within the meaning of Section 3(5) of
ERISA.

    


    “Preferred Stock”
means, with respect to any Person, all preferred Capital Stock issued by such
Person in which the terms thereof do not require such Capital Stock to be
redeemed or to make mandatory sinking fund payments.

    


    “Prime Rate” has the
meaning set forth in the definition of Base Rate in this
Section 1.1.

    


    “Pro Rata Share”
means, with respect to each Lender at any time, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the amount of the Commitment of such Lender at such time and the denominator of
which is the amount of the Revolving Committed Amount at such time; provided that if the
Commitment of each Lender to make Revolving Loans and the obligation of the L/C
Issuer to make L/C Credit Extensions have been terminated pursuant to Section
9.2 or otherwise, then the Pro Rata Share of each Lender shall be determined
based on such Lender’s percentage ownership of the sum of the aggregate amount
of outstanding Revolving Loans plus the aggregate amount of outstanding L/C
Obligations.  The initial Pro Rata Share of each Lender is set forth
opposite the name of such Lender on Schedule 1.1(a) or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.

    


    
      
        
        

      

      
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    “Prohibited
Transaction” means any transaction described in (a) Section 406 of ERISA
that is not exempt by reason of Section 408 of ERISA or by reason of a
Department of Labor prohibited transaction individual or class exemption or (b)
Section 4975(c) of the Code that is not exempt by reason of Section 4975(c)(2)
or 4975(d) of the Code.

    


    “Property” means any
right, title or interest in or to any property or asset of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible.

    


    “Register” has the
meaning set forth in Section 11.3(c).

    


    “Regulations T, U and
X” means Regulations T, U and X, respectively, of the Federal Reserve
Board, and any successor regulations.

    


    “Reportable Event”
means (a) any “reportable event” within the meaning of Section 4043(c) of ERISA
for which the notice under Section 4043(a) of ERISA has not been waived by the
PBGC (including any failure to meet the minimum funding standard of, or timely
make any required installment under, Section 412 of the Code or Section 302 of
ERISA, regardless of the issuance of any waivers in accordance with Section
412(d) of the Code), (b) any such “reportable event” subject to advance notice
to the PBGC under Section 4043(b)(3) of ERISA, (c) any application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the
Code, and (d) a cessation of operations described in Section 4062(e) of
ERISA.

    


    “Required Lenders”
means Lenders whose aggregate Credit Exposure (as hereinafter defined)
constitutes more than 50% of the Credit Exposure of all Lenders at such time;
provided, however, that if any Lender shall be a Defaulting Lender at such time
then there shall be excluded from the determination of Required Lenders the
aggregate principal amount of Credit Exposure of such Lender at such
time.  For purposes of the preceding sentence, the term “Credit
Exposure” as applied to each Lender shall mean (a) at any time prior to the
termination of the Commitments, the Pro Rata Share of such Lender of the
Revolving Committed Amount multiplied by the Revolving Committed Amount and (b)
at any time after the termination of the Commitments, the sum of (i) the
principal balance of the outstanding Revolving Loans of such Lender plus (ii)
such Lender’s Participation Interests in the face amount of the outstanding
Letters of Credit.

    


    “Requirement of Law”
means, with respect to any Person, the organizational documents of such Person
and any Law applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject or otherwise pertaining
to any or all of the transactions contemplated by this Credit Agreement and the
other Credit Documents or the FMB Mortgage Documents.

    


    “Responsible Officer”
means, with respect to the Borrower, the president, the chief executive officer,
the chief financial officer, any executive officer, principal accounting officer
or treasurer of the Borrower, and any other officer or similar official thereof
responsible for the administration of the obligations of the Borrower in respect
of this Credit Agreement and the other Credit Documents.

    


    “Restricted Payment”
means, with respect to any Person, any dividend or other distribution (whether
in cash, securities or other property) with respect to any Capital Stock of such
Person.

    


    
      
        
        

      

      
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    “Revolving Committed
Amount” means SEVENTY-FIVE MILLION DOLLARS
($75,000,000) or such other amount, as it may be reduced from time to
time in accordance with Section 2.1(d).

    


    “Revolving Loans” or
“Loans” has the
meaning set forth in Section 2.1(a).

    


    “S&P” means
Standard & Poor’s Rating Service, a division of The McGraw-Hill Companies,
Inc. and its successors.

    


    “Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.

    


    “Single Employer Plan”
means any Plan which is covered by Title IV of ERISA, but which is not a
Multiemployer Plan or Multiple Employer Plan.

    


    “Solvent” means, with
respect to any Person as of a particular date, that on such date (a) such Person
is able to pay its debts and other liabilities, Contingent Obligations and other
commitments as they mature in the normal course of business, (b) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay as such debts and liabilities
mature in their ordinary course, (c) such Person is not engaged in a business or
a transaction, and is not about to engage in a business or a transaction, for
which such Person’s assets would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in which
such Person is engaged or is to engage, (d) the fair value of the assets of such
Person is greater than the total amount of liabilities, including, without
limitation, Contingent Obligations, of such Person and (e) the present fair
saleable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured.

    


    “SPC” has the meaning
set forth in Section 11.3(h).

    


    “Specified Securities”
means, with respect to any Person, (a) all preferred Capital Stock issued by
such Person and required by the terms thereof to be redeemed or for which
mandatory sinking fund payments are due, (b) all securities issued by such
Person that contain two distinct components, typically medium-term debt and a
forward contract for the issuance of common stock prior to the debt maturity,
including such securities commonly referred to by their tradenames as “FELINE
PRIDES”, “PEPS”, “HITS”, “SPACES” and “DECS” and generally referred to as
“equity units” and (c) all other securities issued by such Person that are
similar to those described in the forgoing clauses (a) and (b).

    


    “Subsidiary” means, as
to any Person, (a) any corporation more than 50% of whose stock of any class or
classes having by the terms thereof ordinary voting power to elect a majority of
the directors of such corporation (irrespective of whether or not at the time,
any class or classes of such corporation shall have or might have voting power
by reason of the happening of any contingency) is at the time owned by such
Person directly or indirectly through Subsidiaries, and (b) any partnership,
association, joint venture or other entity in which such person directly or
indirectly through Subsidiaries has more than a 50% equity interest at any
time.  Any reference to Subsidiary herein, unless otherwise
identified, shall mean a Subsidiary, direct or indirect, of the
Borrower.  Any reference to a Subsidiary of the Borrower herein shall
not include any Subsidiary that is inactive, has minimal or no assets and does
not generate revenues.

    


    “Taxes” has the
meaning set forth in Section 3.13(a).

    


    
      
        
        

      

      
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    “Third Supplemental
Indenture” means that certain Third Supplemental Indenture dated as of
April 30, 2009, to the FMB Mortgage, entered into by and between the Borrower
and the First Mortgage Bond Trustee, substantially in the form of Exhibit 1.1.2,
as the same may be amended, restated, supplemented or otherwise modified from
time to time.

    


    “Total Assets” means
all assets of the Borrower and its Subsidiaries as shown on its most recent
quarterly consolidated balance sheet, as determined in accordance with
GAAP.

    


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

    


    “Unreimbursed Amount”
has the meaning specified in Section 2.2(d)(i).

    


    “Unused Revolving
Commitment” means, for any date of determination, the amount by which (a)
the aggregate Revolving Committed Amount on such date exceeds (b) the sum of the
aggregate principal amount of outstanding Revolving Loans plus the aggregate
principal amount of outstanding L/C Obligations on such date.

    


    “Voting Stock” means
the Capital Stock of a Person that is then outstanding and normally entitled to
vote in the election of directors and other securities of such Person
convertible into or exercisable for such Capital Stock (whether or not such
securities are then currently convertible or exercisable).

    


    1.2          
     Computation of Time Periods
and Other Definitional Provisions.

    


    For
purposes of computation of periods of time hereunder, the word “from” means
“from and including” and the words “to” and “until” each mean “to but
excluding.”  References in this Credit Agreement to “Articles”,
“Sections”, “Schedules” or “Exhibits” shall be to Articles, Sections, Schedules
or Exhibits of or to this Credit Agreement unless otherwise specifically
provided.

    


    1.3          
     Accounting Terms/Calculation
of Financial Covenant.

    


    Except as
otherwise expressly provided herein, all accounting terms used herein or
incorporated herein by reference shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be
delivered to the Administrative Agent or the Lenders hereunder shall be
prepared, in accordance with GAAP applied on a consistent basis. Notwithstanding
anything to the contrary in this Credit Agreement, for purposes of calculation
of the financial covenant set forth in Section 7.2, all accounting
determinations and computations thereunder shall be made in accordance with GAAP
as in effect as of the date of this Credit Agreement applied on a basis
consistent with the application used in preparing the most recent financial
statements of the Borrower referred to in Section 4.1(d).  In the
event that any changes in GAAP after such date are required to be applied to the
Borrower, and would affect the computation of the financial covenant contained
in Section 7.2, such changes shall be followed only from and after the date
this Credit Agreement shall have been amended to take into account any such
changes.  Notwithstanding any other provision contained herein, all
terms of an accounting or financial nature used herein shall be construed, and
all computations of amounts and ratios referred to herein shall be made, without
giving effect to any election under Statement of Financial Accounting Standards
159 (or any other Financial Accounting Standard having a similar result or
effect) to value any Indebtedness or other liabilities of the Borrower or any
Subsidiary at “fair value”, as defined therein.

    


    
      
        
        

      

      
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    1.4        
        Time.

    


    All
references to time herein shall be references to Central Standard Time or
Central Daylight Time, as the case may be, unless specified
otherwise.

    


    1.5            
    Rounding of Financial
Covenant.

    


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

    


    1.6           
    References to Agreements and
Requirement of Laws.

    


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

    


    1.7             
  Letter of
Credit Amounts.

    


    Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall
be deemed to be the stated amount of such Letter of Credit in effect at such
time; provided,
however, that
with respect to any Letter of Credit that, by its terms or the terms of any
Letter of Credit related thereto, provides for one or more automatic increases
in the stated amount thereof, the amount of such Letter of Credit shall be
deemed to be the maximum stated amount of such Letter of Credit after giving
effect to all such increases, whether or not such maximum stated amount is in
effect at such time.

    


    


    SECTION
2

    


    CREDIT
FACILITY

    


    2.1           
    Revolving
Loans.

    


    (a)           Revolving Loan
Commitment.   Subject to the terms and conditions set
forth herein, each Lender severally agrees to make revolving loans (each a
“Revolving
Loan” or “Loan” and
collectively the “Revolving Loans” or
“Loans”) in
Dollars to the Borrower, at any time and from time to time, during the period
from and including the Closing Date to but not including the Maturity Date (or
such earlier date if the Commitments have been terminated as provided herein);
provided, however, that after
giving effect to any Borrowing (i) the sum of the aggregate principal amount of
outstanding Revolving Loans plus the aggregate principal amount of outstanding
L/C Obligations shall not exceed the lesser of (x)  the Revolving
Committed Amount and (y) the face amount of the First Mortgage Bonds and (ii)
with respect to each individual Lender, the sum of the aggregate principal
amount of outstanding Revolving Loans plus the aggregate principal amount of
outstanding L/C Obligations of such Lender shall not exceed such Lender’s Pro
Rata Share of the Revolving Committed Amount.  Subject to the terms of
this 

     

    
      
        
        

      

      
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    Credit
Agreement (including Section 3.3), the Borrower may borrow, repay and reborrow
Revolving Loans.

    


    (b)           Method of Borrowing for
Revolving Loans.  By no later than 11:00 a.m. (i) on the date
of the requested Borrowing of Revolving Loans that will be Base Rate Loans and
(ii) three Business Days prior to the date of the requested Borrowing of
Revolving Loans that will be Eurodollar Loans, the Borrower shall telephone the
Administrative Agent as well as submit a written Notice of Borrowing in the form
of Exhibit
2.1(b) to the Administrative Agent setting forth (A) the amount
requested, (B) the date of the requested Borrowing, (C) the Type of Revolving
Loan, (D) with respect to Revolving Loans that will be Eurodollar Loans, the
Interest Period applicable thereto, and (E) certification that the Borrower has
complied in all respects with Section 5.  If the Borrower shall fail
to specify (1) an Interest Period in the case of a Eurodollar Loan, then such
Eurodollar Loan shall be deemed to have an Interest Period of one month or (2)
the Type of Revolving Loan requested, then such Revolving Loan shall be deemed
to be a Base Rate Loan.  All Revolving Loans made on the Closing Date
shall be Base Rate Loans.  Thereafter, all or any portion of the
Revolving Loans may be converted into Eurodollar Loans in accordance with the
terms of Section 2.3.

    


    (c)           Funding of Revolving
Loans.  Upon receipt of a Notice of Borrowing, the
Administrative Agent shall promptly inform the Lenders as to the terms
thereof.  Each such Lender shall make its Pro Rata Share of the
requested Revolving Loans available to the Administrative Agent in immediately
available funds at the Administrative Agent’s Office not later than 1:00 p.m. on
the Business Day specified in the applicable Notice of
Borrowing.  Upon satisfaction of the conditions set forth in Section
5, the amount of the requested Revolving Loans will then be made available to
the Borrower by the Administrative Agent either by (i) crediting the account of
the Borrower on the books of the Administrative Agent with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent
by the Borrower.

    


    (d)           Reductions of Revolving
Committed Amount.  Upon at least three Business Days’ notice,
the Borrower shall have the right to permanently terminate or reduce the
aggregate unused amount of the Revolving Committed Amount at any time or from
time to time; provided that (i) each partial reduction shall be in an aggregate
amount at least equal to $5,000,000 and in integral multiples of $1,000,000
above such amount and (ii) no reduction shall be made which would reduce the
Revolving Committed Amount to an amount less than the sum of the aggregate
principal amount of outstanding Revolving Loans plus the aggregate principal
amount of outstanding L/C Obligations.  Any reduction in (or
termination of) the Revolving Committed Amount shall be permanent and may not be
reinstated.

    


    (e)           Notes; First Mortgage
Bonds.  (i) At the request of any Lender, the Revolving Loans
made by such Lender shall be evidenced by duly executed promissory notes of the
Borrower in favor of such Lender in substantially the form of Exhibit
2.1(e).  Each Lender may attach schedules to its Note and
endorse thereon the date, Type (if applicable), amount and maturity of its Loans
and payments with respect thereto.

    


    (ii)           To
the extent set forth in the Third Supplemental Indenture and the First Mortgage
Bonds, the First Mortgage Bonds are to be issued and delivered to the
Administrative Agent in order to provide collateral security for the Borrower
Obligations.

    


    
      
        
        

      

      
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    2.2        
       Letter of Credit
Subfacility.

    


    (a)           The Letter of Credit
Commitment.

    


    (i)           Subject
to the terms and conditions set forth herein and other terms and conditions that
the L/C Issuer may reasonably require, (A) the L/C Issuer agrees, in reliance
upon the agreements of the other Lenders set forth in this Section 2.2, from
time to time on any Business Day during the period from the Closing Date until
the Letter of Credit Expiration Date, to issue standby Letters of Credit in
Dollars for the account of the Borrower and to amend Letters of Credit
previously issued by it, in each case in accordance with subsection (b) below
and (B) the Lenders severally agree to participate in such Letters of Credit;
provided, however, that after
giving effect to the issuance of any Letter of Credit (1) the sum of the
aggregate principal amount of outstanding Revolving Loans plus the aggregate
principal amount of outstanding L/C Obligations shall not exceed the Revolving
Committed Amount, (2) with respect to each individual Lender, the sum of the
aggregate principal amount of outstanding Revolving Loans of such Lender plus
the aggregate principal amount of outstanding L/C Obligations of such Lender
shall not exceed such Lender’s Pro Rata Share of the Revolving Committed Amount
and (3) the aggregate amount of L/C Obligations shall not at any time
exceed the Letter of Credit Sublimit.  Within the foregoing limits,
and subject to the terms and conditions hereof, the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed.

    


    (ii)           The
L/C Issuer shall be under no obligation to issue or amend any Letter of Credit
if:

    


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

    


    (B)           the
expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless all the Lenders have approved such expiry
date;

    


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

    


    (D)           such
Letter of Credit is in an initial amount less than $100,000 (unless otherwise
agreed to by the L/C Issuer), is to be used for a purpose other than as
permitted by Section 7.9, or is denominated in a currency other than Dollars;
or

    


    
      
        
        

      

      
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    (E)           a
default of any Lender’s obligations to fund under Section 2.2(d)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the
L/C Issuer has entered into satisfactory arrangements with the Borrower or such
Lender to eliminate the L/C Issuer’s risk with respect to such
Lender.

    


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

    


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

    


    (i)           Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the
Borrower.  The Letter of Credit Application must be received by the
L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the L/C Issuer may agree in a
particular instance in its sole discretion) prior to the proposed issuance date
or date of amendment, as applicable.  In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business Day),
(B) the amount thereof, (C) the expiry date thereof, (D) the name and address of
the beneficiary thereof, (E) the documents to be presented by such beneficiary
in case of any drawing thereunder, (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder and (G) such
other matters as the L/C Issuer may require.  In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer (1)
the Letter of Credit to be amended, (2) the proposed date of amendment thereof
(which shall be a Business Day), (3) the nature of the proposed amendment and
(4) such other matters as the L/C Issuer may require.

    


    (ii)           Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from the Borrower and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof.  Upon receipt by the L/C Issuer of
confirmation from the Administrative Agent that the requested issuance or
amendment is permitted in accordance with the terms hereof, then, subject to the
terms and conditions hereof, the L/C Issuer shall, on the requested date, issue
a Letter of Credit for the account of the Borrower or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C Issuer’s
usual and customary business practices.

    


    (iii)                      RESERVED.

    


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

    


    
      
        
        

      

      
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    (c)           Participations.

    


    (i)           On
the Closing Date and subject to the satisfaction of the conditions precedent set
forth in Section 4.1, (i) each Existing Letter of Credit shall be deemed to have
been issued pursuant to this Agreement and shall be governed by the provisions
of this Section 2.2, together with the other terms and conditions of this
Agreement and (ii) each Lender shall be deemed to have purchased without
recourse a risk participation from the L/C Issuer in each Existing Letter of
Credit and the obligations arising thereunder and any collateral relating
thereto, in each case in an amount equal to its Pro Rata Share of the
obligations under such Existing Letter of Credit, and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and be obligated to pay to the L/C Issuer therefor and discharge when due, its
Pro Rata Share of the obligations arising under such Existing Letter of
Credit.

    


    (ii)           Each
Lender, upon issuance of a Letter of Credit, shall be deemed to have purchased
without recourse a risk participation from the L/C Issuer in such Letter of
Credit and the obligations arising thereunder and any collateral relating
thereto, in each case in an amount equal to its Pro Rata Share of the
obligations under such Letter of Credit, and shall absolutely, unconditionally
and irrevocably assume, as primary obligor and not as surety, and be obligated
to pay to the L/C Issuer therefor and discharge when due, its Pro Rata Share of
the obligations arising under such Letter of Credit.

    


    (d)           Reimbursement.

    


    (i)           In
the event of any drawing under any Letter of Credit, the L/C Issuer will
promptly notify the Borrower.  The Borrower shall reimburse the L/C
Issuer on the day of drawing under any Letter of Credit either with the proceeds
of a Revolving Loan obtained hereunder or otherwise in immediately available
funds.  If the Borrower shall fail to reimburse the L/C Issuer as
provided hereinabove (the “Unreimbursed
Amount”), the unreimbursed amount of such drawing shall bear interest at
a per annum rate equal to the Base Rate plus two percent (2%).

    


    (ii)           Subsequent
to a drawing under any Letter of Credit, unless the Borrower shall immediately
notify the L/C Issuer of its intent to otherwise reimburse the L/C Issuer, the
Borrower shall be deemed to have requested a Base Rate Loan in the amount of the
drawing as described herein, the proceeds of which will be used to satisfy the
reimbursement obligations.  On any day on which the Borrower shall be
deemed to have requested a Revolving Loan borrowing to reimburse a drawing under
a Letter of Credit, the Administrative Agent shall give notice to the Lenders
that a Revolving Loan has been deemed requested in connection with a drawing
under a Letter of Credit, in which case a Revolving Loan borrowing comprised
solely of Base Rate Loans (each such borrowing, a “Mandatory Borrowing”)
shall be immediately made from all Lenders (without giving effect to any
termination of the Commitments pursuant to Section 9.2 or otherwise) pro rata based on each
Lender’s respective Pro Rata Share and the proceeds thereof shall be paid
directly to the L/C Issuer for application to the respective L/C
Obligations.  Each Lender hereby irrevocably agrees to make such
Revolving Loans immediately upon any such request or deemed request on account
of each such Mandatory Borrowing in the amount and in the manner specified in
the preceding sentence and on the same such date notwithstanding (A)
the amount of Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder, (B) 

     

    
      
        
        

      

      
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    the
failure of any conditions specified in Section 5.1 to have been satisfied, (C)
the existence of a Default or an Event of Default, (D) the failure of any such
request or deemed request for Revolving Loans to be made by the time otherwise
required hereunder, (E) the date of such Mandatory Borrowing, or (F) any
reduction in the Revolving Committed Amount or any termination of the
Commitments.

    


    (iii)                      In
the event that any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower), then each such Lender hereby agrees that it shall forthwith fund (as
of the date the Mandatory Borrowing would otherwise have occurred, but adjusted
for any payments received from the Borrower on or after such date and prior to
such purchase) its Pro Rata Share in the outstanding L/C Obligations; provided, that in the
event any Lender shall fail to fund its Pro Rata Share on the day the Mandatory
Borrowing would otherwise have occurred, then the amount of such Lender’s
unfunded participation interest therein shall bear interest payable to the L/C
Issuer upon demand, at the rate equal to, if paid within two Business Days of
such date, the Federal Funds Rate, and thereafter at a rate equal to the Base
Rate.  Simultaneously with the making of each such payment by a Lender
to the L/C Issuer, such Lender shall, automatically and without any further
action on the part of the L/C Issuer or such Lender, acquire a participation in
an amount equal to such payment (excluding the portion of such payment
constituting interest owing to the L/C Issuer) in the related unreimbursed
drawing portion of the L/C Obligation and in the interest thereon and shall have
a claim against the Borrower with respect thereto.  Any payment by the
Lenders pursuant to this clause (iii) shall not relieve or otherwise impair the
obligations of the Borrower to reimburse the L/C Issuer under a Letter of
Credit.

    


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

    


    (i)           any
lack of validity or enforceability of such Letter of Credit, this Credit
Agreement, or any other agreement or instrument relating thereto;

    


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

    


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

    


    (iv)                      any
payment by the L/C Issuer under such Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter
of Credit; or any payment made by the L/C Issuer under such Letter of Credit to


     

    
      
        
        

      

      
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    any
Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief
Law; or

    


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

    


    The
Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower’s instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer.  The Borrower shall
be conclusively deemed to have waived any such claim against the L/C Issuer and
its correspondents unless such notice is given as aforesaid.

    


    (f)           Role of L/C
Issuer. Each
Lender and the Borrower agree that, in paying any drawing under a Letter of
Credit, the L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering any
such document.  None of the L/C Issuer, any Agent-Related Person nor
any of the respective correspondents, participants or assignees of the L/C
Issuer shall be liable to any Lender for (i) any action taken or
omitted in connection herewith at the request or with the approval of the
Lenders or the Required Lenders, as applicable, (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Letter of Credit Application.  The Borrower
hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower’s pursuing
such rights and remedies as it may have against the beneficiary or transferee at
law or under any other agreement.  None of the L/C Issuer, any
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of the L/C Issuer, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.2(e) provided,
however, that anything in such clauses to the contrary notwithstanding, the
Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which
the Borrower proves were caused by the L/C Issuer’s willful misconduct or gross
negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit.  In furtherance and not in limitation of the foregoing, the
L/C Issuer may accept documents that appear on their face to be in order,
without responsibility for further investigation and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.

    


    (g)           Cash
Collateral.  If, as of the Letter of Credit Expiration Date,
any Letter of Credit for any reason remains outstanding and partially or wholly
undrawn, the Borrower shall immediately Cash Collateralize the then aggregate
principal amount of all L/C Obligations owing by it (in an amount equal to such
aggregate principal amount determined as of the Letter of Credit Expiration
Date).  The Borrower hereby grants to the Administrative Agent, for
the benefit of the L/C Issuer and the Lenders, a security interest in all such
cash, deposit accounts and all balances 

     

    
      
        
        

      

      
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    therein
and all proceeds of the foregoing.  Cash collateral shall be
maintained in blocked, non-interest bearing deposit accounts at
JPMCB.

    


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

    


    (i)           Fronting Fee and Documentary
and Processing Charges Payable to L/C Issuer. The Borrower shall pay
directly to the L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit in the amount set forth in the Fee Letter described in
clause (a) of the definition thereof (the “L/C Fronting
Fee”).  The L/C Fronting Fee shall be computed on a quarterly
basis in arrears and shall be due and payable on the last Business Day of each
Fiscal Quarter (as well as on the Letter of Credit Expiration Date) for the
Fiscal Quarter (or portion thereof) then ending, beginning with the first of
such dates to occur after the issuance of such Letter of Credit.  In
addition, the Borrower shall pay directly to the L/C Issuer for its own account
the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the L/C Issuer relating to letters of
credit as from time to time in effect.  Such customary fees and
standard costs and charges are due and payable on demand and are
nonrefundable.

    


    (j)           Conflict with Letter of
Credit Application.  In the event of any conflict between the
terms hereof and the terms of any Letter of Credit Application, the terms hereof
shall control.

    


    (k)           Indemnification of L/C
Issuer.

    


    (i)           In
addition to its other obligations under this Credit Agreement, the Borrower
hereby agrees to protect, indemnify, pay and hold the L/C Issuer harmless from
and against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys’ fees) that the L/C Issuer
may incur or be subject to as a consequence, direct or indirect, of (A) the
issuance of any Letter of Credit for the account of the Borrower or (B) the
failure of the L/C Issuer to honor a drawing under a Letter of Credit issued for
the account of the Borrower as a result of any act or omission, whether rightful
or wrongful, of any present or future de jure or de facto government or
Governmental Authority (all such acts or omissions, herein called “Government
Acts”).

    


    (ii)           As
between the Borrower and the L/C Issuer, the Borrower shall assume all risks of
the acts, omissions or misuse of any Letter of Credit by the beneficiary
thereof.  In the absence of gross negligence or willful misconduct,
the L/C Issuer shall not be responsible for:  (A) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, that may prove to be invalid or ineffective for any reason;
(C) failure of the beneficiary of a Letter of Credit to comply fully with
conditions required in order to draw upon a Letter of Credit; (D) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(E) errors in interpretation of technical terms; (F) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under a Letter of Credit 

     

    
      
        
        

      

      
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    or of the
proceeds thereof; and (G) any consequences arising from causes beyond the
control of the L/C Issuer, including, without limitation, any Government
Acts.  None of the above shall affect, impair, or prevent the vesting
of the L/C Issuer’s rights or powers hereunder.

    


    (iii)                      In
furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by the L/C Issuer, under or
in connection with any Letter of Credit or the related certificates, if taken or
omitted in good faith, shall not put the L/C Issuer under any resulting
liability to the Borrower.  It is the intention of the parties that
this Credit Agreement shall be construed and applied to protect and indemnify
the L/C Issuer against any and all risks involved in the issuance of the Letters
of Credit, all of which risks are hereby assumed by the Borrower, including,
without limitation, any and all risks of the acts or omissions, whether rightful
or wrongful, of any present or future Government Acts.  The L/C Issuer
shall not, in any way, be liable for any failure by the L/C Issuer or anyone
else to pay any drawing under any Letter of Credit as a result of any Government
Acts or any other cause beyond the control of the L/C Issuer.

    


    (iv)                      Nothing
in this subsection (k) is intended to limit the reimbursement obligation of the
Borrower contained in this Section 2.2.  The obligations of the
Borrower under this subsection (k) shall survive the termination of this Credit
Agreement.  No act or omission of any current or prior beneficiary of
a Letter of Credit shall in any way affect or impair the rights of the L/C
Issuer to enforce any right, power or benefit under this Credit
Agreement.

    


    (l)           Letter of Credit
Amounts.  Unless otherwise specified, all references herein to
the amount of a Letter of Credit at any time shall be deemed to mean the maximum
face amount of such Letter of Credit after giving effect to all increases
thereof contemplated by such Letter of Credit or the Letter of Credit
Application therefor, whether or not such maximum face amount is in effect at
such time.

    


    2.3          
     Continuations and
Conversions.

    


    Subject
to the terms below, the Borrower shall have the option, on any Business Day
prior to the Maturity Date, to continue existing Eurodollar Loans for a
subsequent Interest Period, to convert Base Rate Loans into Eurodollar Loans or
to convert Eurodollar Loans into Base Rate Loans.  By no later than
11:00 a.m. (a) on the date of the requested conversion of a Eurodollar Loan to a
Base Rate Loan and (b) three Business Days prior to the date of the requested
continuation of a Eurodollar Loan or conversion of a Base Rate Loan to a
Eurodollar Loan, the Borrower shall provide telephonic notice to the
Administrative Agent, followed promptly by a written Notice of
Continuation/Conversion in the form of Exhibit 2.3, setting
forth whether the Borrower wishes to continue or convert such Revolving
Loans.  Notwithstanding anything herein to the contrary, (A) except as
provided in Section 3.11, Eurodollar Loans may only be continued or converted
into Base Rate Loans on the last day of the Interest Period applicable thereto,
(B) Eurodollar Loans may not be continued nor may Base Rate Loans be converted
into Eurodollar Loans during the existence and continuation of a Default or an
Event of Default and (C) any request to continue a Eurodollar Loan that fails to
comply with the terms hereof or any failure to request a continuation of a
Eurodollar Loan at the end of an Interest Period shall be deemed a request to
convert such Eurodollar Loan to a Base Rate Loan on the last day of the
applicable Interest Period.

    


    
      
        
        

      

      
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    2.4           Minimum
Amounts.

    


    Each
request for a borrowing, conversion or continuation shall be subject to the
requirements that (a) each Eurodollar Loan shall be in a minimum amount of
$5,000,000 and in integral multiples of $1,000,000 in excess thereof, (b) each
Base Rate Loan shall be in a minimum amount of $3,000,000 and in integral
multiples of $100,000 in excess thereof (or the remaining amount of outstanding
Revolving Loans) and (c) no more than five Eurodollar Loans shall be outstanding
hereunder at any one time.  For the purposes of this Section 2.4,
separate Eurodollar Loans that begin and end on the same date, as well as
Eurodollar Loans that begin and end on different dates, shall all be considered
as separate Eurodollar Loans.

    


    2.5         
      RESERVED.

    


    2.6        
       RESERVED.

    


    2.7          
     Evidence of
Debt.

    


    (a)           The
Credit Extensions made by each Lender shall be evidenced by one or more accounts
or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business.  The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon.  Any failure to so record or
any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to
the  Borrower Obligations.  In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error.

    


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

    


    


    SECTION
3

    


    GENERAL
PROVISIONS APPLICABLE

    TO
REVOLVING LOANS

    


    3.1          
     Interest.

    


    (a)           Interest
Rate.  Subject to Sections 3.1(b), (i) all Base Rate Loans
shall accrue interest at the Base Rate plus the Applicable Percentage and (ii)
all Eurodollar Loans shall accrue interest at the Adjusted Eurodollar
Rate.

    


    (b)           Default Rate of
Interest.

    


    (i) After
the occurrence, and during the continuation, of an Event of Default pursuant to
Section 9.1(a), the principal of and, to the extent permitted by Law,
interest on the Revolving Loans and any other amounts owing hereunder or under
the other Credit 

     

    
      
        
        

      

      
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    Documents
(including without limitation fees and expenses) shall bear interest, payable on
demand, at the Default Rate.

    


    (ii)           After
the occurrence, and during the continuation, of an Event of Default (other than
an Event of Default pursuant to Section 9.1(a)), at the request of the Required
Lenders, the principal of and, to the extent permitted by Law, interest on the
Revolving Loan and any other amounts owing hereunder or under the other Credit
Documents (including without limitation fees and expenses) shall bear interest,
payable on demand, at the Default Rate.

    


    (c)           Interest
Payments.  Interest on Revolving Loans shall be due and payable
in arrears on each Interest Payment Date.

    


    3.2           
    Payments
Generally.

    


    (a)           No Deductions; Place and
Time of Payments.  All payments to be made by the Borrower
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.  Except as otherwise expressly provided herein,
all payments by the Borrower hereunder shall be made to the Administrative
Agent, for the account of the respective Lenders to which such payment is owed,
at the Administrative Agent’s Office in Dollars and in immediately available
funds not later than 2:00 p.m. on the date specified herein.  The
Administrative Agent will promptly distribute to each Lender its Pro Rata Share
(or other applicable share as provided herein) of such payment in like funds as
received by wire transfer to such Lender’s Lending Office.  All
payments received by the Administrative Agent after 2:00 p.m. shall be deemed
received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue.

    


    (b)           Payment
Dates.  Subject to the definition of “Interest Period,” if
any payment to be made by the Borrower shall come due on a day other than a
Business Day, payment shall be made on the next following Business Day, and such
extension of time shall be reflected in computing interest or fees, as the case
may be.

    


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

    


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

    


    (ii)           if
any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Administrative Agent the amount thereof in immediately available


     

    
      
        
        

      

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

    


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

    


    (d)           Several
Obligations.  The obligations of the Lenders hereunder to make
Revolving Loans and to fund or purchase Participation Interests are several and
not joint.  The failure of any Lender to make any Revolving Loan or to
fund or purchase any Participation Interest on any date required hereunder shall
not relieve any other Lender of its corresponding obligation to do so on such
date, and no Lender shall be responsible for the failure of any other Lender to
so make its Revolving Loan or fund or purchase its Participation
Interest.

    


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

    


    3.3          
     Prepayments.

    


    (a)           Voluntary
Prepayments.  The Borrower shall have the right to prepay its
outstanding Revolving Loans in whole or in part from time to time without
premium or penalty; provided, however, that (i) all
prepayments under this Section 3.3(a) shall be subject to Section 3.14, (ii)
Eurodollar Loans may only be prepaid on three Business Days’ prior written
notice to the Administrative Agent, (iii) each such partial prepayment of
Eurodollar Loans shall be in the minimum principal amount of $5,000,000 and
integral multiples of $1,000,000 and (iv) each such partial prepayment of Base
Rate Loans shall be in the minimum principal amount of $500,000 and integral
multiples of $100,000 or, in the case of clauses (iii) and (iv), if less than
such minimum amounts, the entire principal amount thereof then
outstanding.  Amounts prepaid pursuant to this Section 3.3(a) shall be
applied as the Borrower may elect based on the Lenders’ Pro Rata Shares; provided, however, if the
Borrower fails to specify, such prepayment shall be applied by the
Administrative Agent, subject to Section 3.7, in such manner as it deems
reasonably appropriate.

    


    (b)           Mandatory
Prepayments.  If at any time (i) the sum of the aggregate
principal amount of Revolving Loans outstanding plus the aggregate principal
amount of L/C Obligations outstanding exceeds the Revolving Committed Amount or
(ii) the aggregate principal amount of L/C Obligations outstanding exceeds
the Letter of Credit Sublimit, the Borrower shall immediately make a principal
payment to the Administrative Agent and/or Cash Collateralize outstanding L/C
Obligations in a manner, in an amount and in Dollars as is necessary to be in
compliance with Sections 2.1 and 2.2, as applicable, and as directed by the
Administrative Agent.  

     

    
      
        
        

      

      
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    All
amounts required to be prepaid pursuant to this Section 3.3(b) shall be applied
first to Base
Rate Loans, second to Eurodollar
Loans in direct order of Interest Period maturities and third to Cash
Collateralize outstanding L/C Obligations.  All prepayments pursuant
to this Section 3.3(b) shall be subject to Section 3.14.

    


    3.4          
     Fees.

    


    (a)           Commitment
Fees.  In consideration of the Revolving Committed Amount being
made available by the Lenders hereunder, the Borrower agrees to pay to the
Administrative Agent, for the pro rata benefit of each Lender based on its Pro
Rata Share, a per annum fee equal to the daily average sum of the Applicable
Percentage for Commitment Fees for each day during the period of determination
multiplied by the Unused Revolving Commitment for each such day (the “Commitment
Fees”).  The Commitment Fees shall commence to accrue on the
Closing Date and shall be due and payable in arrears on the last Business Day of
each Fiscal Quarter (as well as on the Maturity Date and on any date that the
Revolving Committed Amount is reduced) for the Fiscal Quarter (or portion
thereof) then ending, beginning with the first of such dates to occur after the
Closing Date.

    


         
(b)           RESERVED.

    


    (c)           L/C
Fees.  The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share a fee for each Letter of
Credit issued at its request at a rate per annum equal to the Applicable
Percentage for L/C Fees times the daily
maximum amount available to be drawn under such Letter of Credit (the “L/C
Fees”).  The L/C Fees shall be computed on a quarterly basis in
arrears and shall be due and payable on the last Business Day of each Fiscal
Quarter (as well as on the Letter of Credit Expiration Date) for the Fiscal
Quarter (or portion thereof) then ending, beginning with the first of such dates
to occur after the issuance of such Letter of Credit.

    


    (d)           Administrative
Fees.  The Borrower agrees to pay to the Administrative Agent,
for its own account, an annual fee as agreed to between the Borrower and the
Administrative Agent (the “Administrative Fees”)
in the applicable Fee Letter.

    


    3.5           
    Payment in full at
Maturity.

    


    On the
Maturity Date, the entire outstanding principal balance of all Revolving Loans,
together with accrued but unpaid interest and all fees and other sums owing
under the Credit Documents, shall be due and payable in full, unless accelerated
sooner pursuant to Section 9.2; provided that if the
Maturity Date is not a Business Day, then such principal, interest, fees and
other sums shall be due and payable in full on the next preceding Business
Day.

    


    3.6           
    Computations of Interest and
Fees.

    


    (a)           Calculation of Interest and
Fees.  Except for Base Rate Loans that are based upon the Prime
Rate, in which case interest shall be computed on the basis of the actual number
of days elapsed over a year of 365 or 366 days, as the case may be, all
computations of interest and fees hereunder shall be made on the basis of the
actual number of days elapsed over a year of 360 days.  Interest shall
accrue from and including the first date of Borrowing (or continuation or
conversion) to but excluding the last day occurring in the period for which such
interest is payable.  Each determination by the Administrative Agent
of an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.

    


    
      
        
        

      

      
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    (b)           Usury.  It
is the intent of the Lenders and the Borrower to conform to and contract in
strict compliance with applicable usury Law from time to time in
effect.  All agreements between the Lenders and the Borrower are
hereby limited by the provisions of this subsection which shall override and
control all such agreements, whether now existing or hereafter arising and
whether written or oral.  In no way, nor in any event or contingency
(including but not limited to prepayment or acceleration of the maturity of any
Borrower Obligation), shall the interest taken, reserved, contracted for,
charged, or received under this Credit Agreement, under the Notes, under the
First Mortgage Bonds or otherwise, exceed the maximum nonusurious amount
permissible under applicable Law.  If, from any possible construction
of any of the Credit Documents or any other document, interest would otherwise
be payable in excess of the maximum nonusurious amount, any such construction
shall be subject to the provisions of this subsection and such documents shall
be automatically reduced to the maximum nonusurious amount permitted under
applicable Law, without the necessity of execution of any amendment or new
document.  If any Lender shall ever receive anything of value which is
characterized as interest on the Revolving Loans under applicable Law and which
would, apart from this provision, be in excess of the maximum nonusurious
amount, an amount equal to the amount which would have been excessive interest
shall, without penalty, be applied to the reduction of the principal amount
owing on the Revolving Loans and not to the payment of interest, or refunded to
the Borrower or the other payor thereof if and to the extent such amount which
would have been excessive exceeds such unpaid principal amount of the Revolving
Loans.  The right to demand payment of the Revolving Loans or any
other Indebtedness evidenced by any of the Credit Documents does not include the
right to accelerate the payment of any interest which has not otherwise accrued
on the date of such demand, and the Lenders do not intend to charge or receive
any unearned interest in the event of such demand.  All interest paid
or agreed to be paid to the Lenders with respect to the Revolving Loans shall,
to the extent permitted by applicable Law, be amortized, prorated, allocated,
and spread throughout the full stated term (including any renewal or extension)
of the Revolving Loans so that the amount of interest on account of the
Revolving Loans does not exceed the maximum nonusurious amount permitted by
applicable Law.

    


    3.7            
   Pro
Rata Treatment.

    


    Except to
the extent otherwise provided herein, each Borrowing, each payment or prepayment
of principal of any Revolving Loan, each L/C Credit Extension, each payment of
interest, each payment of fees (other than administrative fees paid to the
Administrative Agent and fronting, documentary and processing fees paid to the
L/C Issuer), each conversion or continuation of any Revolving Loans and each
reduction in the Revolving Committed Amount, shall be allocated pro rata among
the relevant Lenders in accordance with their Pro Rata Shares; provided that, if any
Lender shall have failed to pay its Pro Rata Share of any Revolving Loan or fund
or purchase its Participation Interest, then any amount to which such Lender
would otherwise be entitled pursuant to this Section 3.7 shall instead be
payable to the Administrative Agent until the share of such Revolving Loan or
such Participation Interest not funded or purchased by such Lender has been
repaid, and the Administrative Agent may, in its discretion and notwithstanding
any contrary provision hereof, (i) apply any amounts thereafter received by the
Administrative Agent for the account of such Lender and for the benefit of the
Administrative Agent or the L/C Issuer to satisfy such Lender’s obligations to
pay its Pro Rata Share of any Revolving Loan or fund or purchase its
Participation Interest and/or (ii) hold any such amounts in a segregated account
as cash collateral for, and application to, any future funding obligations of
such Lender to pay its Pro Rata Share of any Revolving Loan or fund or purchase
its Participation Interest; in the case of each of (i) and (ii) above, in any
order as determined by the Administrative Agent in its discretion.  In
the event any principal, interest, fee or other amount paid to any Lender
pursuant to this Credit Agreement or any other Credit Document is rescinded or
must otherwise be returned by the Administrative Agent, (a) such principal,
interest, fee or other amount that had been satisfied by such payment shall be
revived, reinstated and continued in full force and effect as if such payment
had not occurred and (b) such 

     

    
      
        
        

      

      
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    Lender
shall, upon the request of the Administrative Agent, repay to the Administrative
Agent the amount so paid to such Lender, with interest for the period commencing
on the date such payment is returned by the Administrative Agent until the date
the Administrative Agent receives such repayment at a rate per annum equal to
the Federal Funds Rate if repaid within two (2) Business Days after such request
and thereafter the Base Rate.

    


    3.8           
    Sharing of
Payments.

    


    The
Lenders agree among themselves that, except to the extent otherwise provided
herein, in the event that any Lender shall obtain payment in respect of any
Revolving Loan, any L/C Obligations or any other obligation owing to such Lender
under this Credit Agreement through the exercise of a right of setoff, banker’s
lien or counterclaim, or pursuant to a secured claim under Section 506 of the
Bankruptcy Code or other security or interest arising from, or in lieu of, such
secured claim, received by such Lender under any applicable Debtor Relief Law or
other similar Law or otherwise, or by any other means, in excess of its Pro Rata
Share of such payment as provided for in this Credit Agreement, such Lender
shall promptly pay in cash or purchase from the other Lenders a participation in
such Revolving Loans, L/C Obligations and other obligations in such amounts, and
make such other adjustments from time to time, as shall be equitable to the end
that all Lenders share such payment in accordance with their Pro Rata
Shares.  The Lenders further agree among themselves that if payment to
a Lender obtained by such Lender through the exercise of a right of setoff,
banker’s lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be returned, each Lender which shall have shared the benefit of
such payment shall, by payment in cash or a repurchase of a participation
theretofore sold, return its share of that benefit (together with its share of
any accrued interest payable with respect thereto) to each Lender whose payment
shall have been rescinded or otherwise returned.  The Borrower agrees
that (a) any Lender so purchasing such a participation may, to the fullest
extent permitted by Law, exercise all rights of payment, including setoff,
banker’s lien or counterclaim, with respect to such participation as fully as if
such Lender were a holder of such Revolving Loan, L/C Obligations or other
obligation in the amount of such participation and (b) the Borrower Obligations
that have been satisfied by a payment that has been rescinded or otherwise
returned shall be revived, reinstated and continued in full force and effect as
if such payment had not occurred.  Except as otherwise expressly
provided in this Credit Agreement, if any Lender or the Administrative Agent
shall fail to remit to any other Lender an amount payable by such Lender or the
Administrative Agent to such other Lender pursuant to this Credit Agreement on
the date when such amount is due, such payments shall be made together with
interest thereon for each date from the date such amount is due until the date
such amount is paid to the Administrative Agent or such other Lender at a rate
per annum equal to the Federal Funds Rate.  If under any applicable
Debtor Relief Law or other similar Law, any Lender receives a secured claim in
lieu of a setoff to which this Section 3.8 applies, such Lender shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders under this Section 3.8 to share
in the benefits of any recovery on such secured claim.

    


    3.9           
    Capital
Adequacy.

    


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

    


    
      
        
        

      

      
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    3.10              Eurodollar
Provisions.

    


    If the
Administrative Agent determines (which determination shall be conclusive and
binding upon the Borrower) in connection with any request for a Eurodollar Loan
or a conversion to or continuation thereof that (i) deposits in Dollars are not
being offered to banks in the applicable offshore interbank market for the
applicable amount and Interest Period of such Eurodollar Loan, (ii) adequate and
reasonable means do not exist for determining the Eurodollar Rate for such
Eurodollar Loan, or (iii) the Eurodollar Rate for such Eurodollar Loan does not
adequately and fairly reflect the cost to the Lenders of funding such Eurodollar
Loan, the Administrative Agent will promptly notify the Borrower and the
Lenders.  Thereafter, the obligation of the Lenders to make or
maintain Eurodollar Loans shall be suspended until the Administrative Agent
revokes such notice.  Upon receipt of such notice, the Borrower may
revoke any pending Notice of Borrowing or Notice of Continuation/Conversion with
respect to Eurodollar Loans or, failing that, will be deemed to have converted
such request into a request for a Borrowing of or, to the extent permitted
hereunder, conversion into a Base Rate Loan in the amount specified
therein.

    


    3.11              Illegality.

    


    If any
Lender determines that any Requirement of Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Loans, or
materially restricts the authority of such Lender to purchase or sell, or to
take deposits of Dollars in the London interbank market, or to determine or
charge interest rates based upon the Eurodollar Rate, then, on notice thereof by
such Lender to the Borrower through the Administrative Agent, any obligation of
such Lender to make or continue Eurodollar Loans or to convert Base Rate Loans
to Eurodollar Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist.  Upon receipt of such notice, the
Borrower shall, upon demand to the Borrower from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Loans of
such Lender to Base Rate Loans, either on the last day of the Interest Period
thereof, if such Lender may lawfully continue to maintain such Eurodollar Loans
to such day, or immediately, if such Lender may not lawfully continue to
maintain such Eurodollar Loans.  Upon any such prepayment or
conversion, the Borrower shall also pay interest on the amount so prepaid or
converted, together with any amounts due with respect thereto pursuant to
Section 3.14.

    


    3.12              Requirements of Law;
Reserves on Eurodollar Loans.

    


    (a)           Changes in
Law.  If any Lender determines that as a result of the
introduction of or any change in, or in the interpretation of, any Requirement
of Law, or such Lender’s compliance therewith, there shall be any increase in
the cost to such Lender of agreeing to make or making, funding or maintaining
Eurodollar Loans, or a reduction in the amount received or receivable by such
Lender in connection with any of the foregoing (excluding for purposes of this
Section 3.12 any such increased costs or reduction in amount resulting from (i)
Taxes or Other Taxes (as to which Section 3.13 shall govern) and (ii) reserve
requirements contemplated by subsection (b) below), then from time to time, upon
demand of such Lender (through the Administrative Agent), the Borrower shall pay
to such Lender such additional amounts as will compensate such Lender for such
increased cost or reduction in yield.

    


    (b)           Reserves.  The
Borrower shall pay to each Lender (to the extent such Lender has not otherwise
been compensated therefor hereunder), as long as such Lender shall be required
to maintain reserves with respect to liabilities or assets consisting of or
including Eurodollar funds or deposits (currently known as “Eurodollar
liabilities”), additional interest on the unpaid 

     

    
      
        
        

      

      
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    principal
amount of each Eurodollar Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender (as determined by such Lender in good
faith, which determination shall be conclusive absent demonstrable error),
which, shall be due and payable on each date on which interest is payable on
such Loan; provided that the
Borrower shall have received at least 15 days’ prior notice (with a copy to the
Administrative Agent) of such additional interest from such
Lender.  If a Lender fails to give notice 15 days prior to the
relevant Interest Payment Date, such additional interest shall be due and
payable 15 days from receipt of such notice.

    


    3.13              Taxes.

    


    (a)           Payment of
Taxes.  Any and all payments by the Borrower to or for the
account of the Administrative Agent or any Lender under any Credit Document
shall be made free and clear of and without deduction for any and all present or
future income, stamp or other taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and all liabilities with
respect thereto, but excluding, in the case of the Administrative Agent and each
Lender, taxes imposed on or measured by its net income, and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the Laws of which the Administrative Agent
or such Lender, as the case may be, is organized or maintains its Lending Office
(all such non-excluded present or future income, stamp or other taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges,
and liabilities being hereinafter referred to as “Taxes”).  If
the Borrower shall be required by any Requirement of Law to deduct any Taxes
from or in respect of any sum payable under any Credit Document to the
Administrative Agent or any Lender, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.13(a)), the
Administrative Agent or such Lender, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other Governmental
Authority in accordance with applicable Requirements of Law, and (iv) within 30
days after the date of such payment, the Borrower shall furnish to the
Administrative Agent (which shall forward the same to such Lender, if
applicable) the original or a certified copy of a receipt evidencing payment
thereof, to the extent such receipt is issued therefor, or other written proof
of payment thereof that is reasonably satisfactory to the Administrative
Agent.

    


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

    


    (c)           No Deduction for
Taxes.  If the Borrower shall be required to deduct or pay any
Taxes or Other Taxes from or in respect of any sum payable under any Credit
Document to the Administrative Agent or any Lender, the Borrower shall also pay
to the Administrative Agent (for the account of such Lender) or to such Lender,
at the time interest is paid, such additional amount that such Lender specifies
as necessary to preserve the after-tax yield (after factoring in all taxes,
including taxes imposed on or measured by net income) such Lender would have
received if such Taxes or Other Taxes had not been imposed.

    


    (d)           Indemnification.  The
Borrower agrees to indemnify the Administrative Agent and each Lender for (i)
the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section
3.13(d)) 

     

    
      
        
        

      

      
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    paid by
the Administrative Agent and such Lender, and (ii) any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto.

    


    (e)           Exemption from
Taxes.  In the case of any payment hereunder or under any other
Credit Document by or on behalf of the Borrower through an account or branch
outside the United States, or on behalf of the Borrower by a payor that is not a
United States person, if the Borrower determines that no taxes are payable in
respect thereof, the Borrower shall furnish, or shall cause such payor to
furnish, to the Administrative Agent, an opinion of counsel reasonably
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes.  For purposes of this subsection (e), the terms “United States”
and “United States person” shall have the meanings specified in Section 7701 of
the Code.

    


    (f)           Foreign
Lenders.  Each Lender that is a foreign corporation, foreign
partnership or foreign trust within the meaning of the Code (a “Foreign Lender”)
shall deliver to the Administrative Agent, prior to receipt of any payment
subject to withholding under the Code, two duly signed completed copies of
either IRS Form W-8BEN or any successor thereto (relating to such Lender and
entitling it to an exemption from, or reduction of, withholding tax on all
payments to be made to such Lender by the Borrower pursuant to this Credit
Agreement), as appropriate, or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Lender by the Borrower pursuant to
this Credit Agreement) or such other evidence satisfactory to the Borrower and
the Administrative Agent that such Lender is entitled to an exemption from, or
reduction of, United States withholding tax. Thereafter and from time to time,
each such Lender shall (i) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities), as appropriate, as may reasonably be requested by
the Borrower or the Administrative Agent and then be available under then
current United States Laws and regulations to avoid, or such evidence as is
satisfactory to the Borrower and the Administrative Agent of any available
exemption from or reduction of, United States withholding taxes in respect of
all payments to be made to such Lender by the Borrower pursuant to this Credit
Agreement, (ii) promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction, and (iii) take such steps as shall not be materially disadvantageous
to it, in the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Lending Office) to avoid any
Requirement of Law that the Borrower make any deduction or withholding for taxes
from amounts payable to such Lender.  If the forms or other evidence
provided by such Lender at the time such Lender first becomes a party to this
Credit Agreement indicate a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender provides the appropriate forms certifying
that a lesser rate applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed by such forms;
provided, however, that, if at the date of any assignment pursuant to which a
Lender becomes a party to this Credit Agreement, the assignor Lender was
entitled to payments under Section 3.13(a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the assignee Lender
on such date.  If such Lender fails to deliver the above forms or
other evidence, then the Administrative Agent may withhold from any interest
payment to such Lender an amount equal to the applicable withholding tax imposed
by Sections 1441 and 1442 of the Code, without reduction.  If any
Governmental Authority asserts that the Administrative Agent did not properly
withhold any tax or other amount from payments made in respect of such Lender,
such Lender 

     

    
      
        
        

      

      
        35

        
          

        

      

      
        
        

      

    

    shall
indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section 3.13(f), and costs and expenses
(including the reasonable fees and expenses of legal counsel) of the
Administrative Agent.  For any period with respect to which a Lender
has failed to provide the Borrower with the above forms or other evidence (other
than if such failure is due to a change in the applicable Law, or in the
interpretation or application thereof, occurring after the date on which such
form or other evidence originally was required to be provided or if such form or
other evidence otherwise is not required), such Lender shall not be entitled to
indemnification under subsection (a) or (c) of this Section 3.13 with respect to
Taxes imposed by the United States by reason of such failure; provided, however,
that should a Lender become subject to Taxes because of its failure to deliver
such form or other evidence required hereunder, the Borrower shall take such
steps as such Lender shall reasonably request to assist such Lender in
recovering such Taxes.  The obligation of the Lenders under this
Section 3.13(f) shall survive the payment of all Borrower Obligations and the
resignation or replacement of the Administrative Agent.

    


    (g)           Reimbursement.  In
the event that an additional payment is made under Section 3.13(a) or (c) for
the account of any Lender and such Lender, in its reasonable judgment,
determines that it has finally and irrevocably received or been granted a credit
against or release or remission for, or repayment of, any tax paid or payable by
it in respect of or calculated with reference to the deduction or withholding
giving rise to such payment, such Lender shall, to the extent that it determines
that it can do so without prejudice to the retention of the amount of such
credit, relief, remission or repayment, pay to the Borrower such amount as such
Lender shall, in its reasonable judgment, have determined to be attributable to
such deduction or withholding and which will leave such Lender (after such
payment) in no worse position than it would have been in if the Borrower had not
been required to make such deduction or withholding.  Nothing herein
contained shall interfere with the right of a Lender to arrange its tax affairs
in whatever manner it thinks fit nor oblige any Lender to claim any tax credit
or to disclose any information relating to its tax affairs or any computations
in respect thereof or require any Lender to do anything that would prejudice its
ability to benefit from any other credits, reliefs, remissions or repayments to
which it may be entitled.

    


    3.14              Compensation.

    


    Upon the
written demand of any Lender, the Borrower shall promptly compensate such Lender
for and hold such Lender harmless from any loss, cost or expense incurred by it
as a result of:

    


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

    


    (b)           any
failure by the Borrower (for a reason other than the failure of such Lender to
make a Eurodollar Loan) to prepay, borrow, continue or convert any Eurodollar
Loan on the date or in the amount previously requested by the
Borrower.

    


    The
amount each such Lender shall be compensated pursuant to this Section 3.14
shall include, without limitation, (i) any loss incurred by such Lender in
connection with the re-employment of funds prepaid, repaid, not borrowed or
paid, as the case may be and (ii) any reasonable out-of-pocket expenses
(including the reasonable fees and expenses of legal counsel) incurred and
reasonably attributable thereto.

    


    For
purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.14, each Lender shall be deemed to have funded each
Eurodollar Loan made by it at the 

     

    
      
        
        

      

      
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    Eurodollar
Rate for such Loan by a matching deposit or other borrowing in the London
interbank market for a comparable amount and for a comparable period, whether or
not such Eurodollar Loan was in fact so funded.

    


    3.15              Determination and Survival
of Provisions.

    


    All
determinations by the Administrative Agent or a Lender of amounts owing under
Sections 3.9 through 3.14, inclusive, shall, absent manifest error, be
conclusive and binding on the parties hereto and all amounts owing thereunder
shall be due and payable within ten Business Days of demand
therefor.  In determining such amount, the Administrative Agent or
such Lender may use any reasonable averaging and attribution
methods.  Sections 3.9 through 3.14, inclusive, shall survive the
termination of this Credit Agreement and the payment of all Borrower
Obligations.

    


    3.16           
  Defaulting
Lenders.

    


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

    


    (a)           fees
shall cease to accrue on the unfunded portion of the Commitment of such
Defaulting Lender pursuant to Section 3.4(a);

    


    (b)           the
Commitment and Credit Exposure of such Defaulting Lender shall not be included
in determining whether all Lenders or the Required Lenders have taken or may
take any action hereunder (including any consent to any amendment or waiver
pursuant to Section 11.6);

    


    (c)           if
any L/C Obligations exist at the time a Lender becomes a Defaulting Lender
then:

    


    (i)           all
or any part of such L/C Obligations shall be reallocated among the
non-Defaulting Lenders in accordance with their respective Pro Rata Share but
only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures
plus such Defaulting Lender’s L/C Obligations does not exceed the total of all
non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section
5.1 are satisfied at such time; and

    


    (ii) if
the reallocation described in clause (i) above cannot, or can only partially, be
effected, the Borrower shall within one Business Day following notice by the
Administrative Agent cash collateralize such Defaulting Lender’s L/C Obligations
(after giving effect to any partial reallocation pursuant to clause (i) above)
in accordance with the procedures set forth in Section 2.2(g) for so long as
such L/C Obligations is outstanding;

    


    (iii)  if
the Borrower cash collateralizes any portion of such Defaulting Lender’s L/C
Obligations pursuant to Section 3.16(c)(ii), the Borrower shall not be required
to pay any fees to such Defaulting Lender pursuant to Section 3.4(c) with
respect to such Defaulting Lender’s L/C Obligations during the period such
Defaulting Lender’s L/C Obligations is cash collateralized;

    


    (iv)           
if the L/C Obligations of the non-Defaulting Lenders are reallocated pursuant to
this Section 3.16(c), then the fees payable to the Lenders pursuant to Section


     

    
      
        
        

      

      
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    3.4(a)
and Section 3.4(c) shall be adjusted in accordance with such non-Defaulting
Lenders’ Pro Rata Shares; or

    


    (v)           if
any Defaulting Lender’s L/C Obligations are neither cash collateralized nor
reallocated pursuant to this Section 3.16(c), then, without prejudice to any
rights or remedies of the L/C Issuer or any Lender hereunder, all letter of
credit fees payable under Section 3.4(c) with respect to such Defaulting
Lender’s L/C Obligations shall be payable to the L/C Issuer until such L/C
Obligations are cash collateralized and/or reallocated; and

    


    (d)           so
long as any Lender is a Defaulting Lender, the L/C Issuer shall not be required
to issue, amend or increase any Letter of Credit, unless it is satisfied that
the related exposure will be 100% covered by the Commitments of the
non-Defaulting Lenders and/or cash collateral will be provided by the Borrower
in accordance with Section 3.16(c), and participating interests in any such
newly issued or increased Letter of Credit shall be allocated among
non-Defaulting Lenders in a manner consistent with Section 3.16(c)(i) (and
Defaulting Lenders shall not participate therein).

    


    In the
event that the Administrative Agent, the Borrower and the L/C Issuer each agrees
that a Defaulting Lender has adequately remedied all matters that caused such
Lender to be a Defaulting Lender, then the L/C Obligations of the Lenders shall
be readjusted to reflect the inclusion of such Lender’s Commitment and on such
date such Lender shall purchase at par such of the Loans of the other Lenders as
the Administrative shall determine may be necessary in order for such Lender to
hold such Loans in accordance with its Pro Rata Share.

    


    


    SECTION
4

    


    CONDITIONS
PRECEDENT TO CLOSING

    


    4.1           
    Closing
Conditions.

    


    The
obligation of the Lenders to enter into this Credit Agreement and make the
initial Revolving Loans is subject to satisfaction of the following
conditions:

    


    (a)           Executed Credit
Documents.  Receipt by the Administrative Agent of duly
executed copies of:  (i) this Credit Agreement, (ii) the requested
Notes, (iii) the FMB Mortgage, (iv) First Mortgage Bonds in an aggregate face
amount not less than $75,000,000, (v) the FMB Delivery Agreement and (vi) all
other Credit Documents, each in form and substance reasonably acceptable to the
Lenders in their sole discretion.

    


    (b)           Authority
Documents.  Receipt by the Administrative Agent of the
following:

    


    (i)           Organizational
Documents.  Copies of the articles of incorporation of the
Borrower, certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction of its
formation and copies of the bylaws of the Borrower, certified by a secretary or
assistant secretary (or the equivalent) of the Borrower to be true and correct
as of the Closing Date.

    


    (ii)           Resolutions.  Copies
of resolutions of the board of directors of the Borrower approving and adopting
this Credit Agreement, the other Credit Documents and 

     

    
      
        
        

      

      
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    the FMB
Mortgage Documents to which it is a party, the transactions contemplated herein
and therein and authorizing execution and delivery hereof and thereof, certified
by a secretary or assistant secretary (or the equivalent) of the Borrower to be
true and correct and in full force and effect as of the Closing
Date.

    


    (iii)                      Good
Standing.  Copies of certificates of good standing, existence
or its equivalent with respect to the Borrower certified as of a recent date by
the appropriate Governmental Authority of the state or other jurisdiction of its
formation.

    


    (iv)                      Incumbency.  An
incumbency certificate of the Borrower certified by a secretary or assistant
secretary (or the equivalent) of the Borrower to be true and correct as of the
Closing Date.

    


    (c)           Opinions of
Counsel.   Receipt by the Administrative Agent of opinions
of counsel to the Borrower (which may include in-house counsel with respect to
matters of Texas law), in form and substance acceptable to the Administrative
Agent, addressed to the Administrative Agent and the Lenders and dated as of the
Closing Date.

    


    (d)           Financial
Statements.  Receipt by the Administrative Agent of a copy of
(i) the annual consolidated financial statements (including balance sheets,
income statements and cash flow statements) of the Parent and its Subsidiaries
for the Fiscal Year 2008, audited by independent public accountants of
recognized national standing, (ii) the consolidated balance sheet and income
statement of the Parent and its Subsidiaries for the Fiscal Quarter ended March
31, 2008, together with the related consolidated statement of income for such
Fiscal Quarter and a year to date statement of cash flows and (iii) such other
financial information regarding the Borrower as the Administrative Agent may
reasonably request.

    


    (e)           Due
Diligence.  The Administrative Agent and the Lenders shall have
completed all due diligence with respect to the Borrower and its Subsidiaries
and the transactions contemplated by this Credit Agreement and the other Credit
Documents and the FMB Mortgage Documents, in scope and determination reasonably
satisfactory to the Administrative Agent and the Lenders.

    


    (f)           Material Adverse
Effect.  Since December 31, 2008, there shall have been no
development or event relating to or affecting the Borrower or any of its
Subsidiaries that has had or could be reasonably expected to have a Material
Adverse Effect and no Material Adverse Change in the facts and information
regarding the Borrower and its Subsidiaries as represented to date.

    


    (g)           Absence of Market
Disruption.  There shall not have occurred a material adverse
change in or material disruption of conditions in the financial, banking or
capital markets which the Administrative Agent and the Arrangers, in their sole
discretion, deem material in connection with the syndication of the Credit
Agreement.

    


    (h)           Litigation.  There
shall not exist any material order, decree, judgment, ruling or injunction or
any material pending or threatened action, suit, investigation or proceeding
against the Borrower or any of its Subsidiaries except as represented to
date.

    


    (i)           Consents.  All
necessary governmental, shareholder and third party consents and approvals, if
any, with respect to this Credit Agreement and the Credit Documents and the FMB
Mortgage Documents and the transactions contemplated herein and therein have
been received (except for such consents, approvals, authorizations, orders and
registrations or qualifications as may 

     

    
      
        
        

      

      
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    be
required to enforce the Lien of the FMB Mortgage Documents, exercise remedies
under the FMB Mortgage Documents, or use, operate, assign, lease or transfer
property of the Borrower in connection therewith), and no condition or
Requirement of Law exists which would reasonably be likely to restrain, prevent
or impose any material adverse conditions on the transactions contemplated
hereby and by the other Credit Documents and the FMB Mortgage
Documents.

    


    (j)           Officer’s
Certificates.  Receipt by the Administrative Agent of a
certificate or certificates executed by an Authorized Officer of the Borrower as
of the Closing Date stating that (i) the Borrower and each of its Subsidiaries
are in compliance in all material respects with all existing material financial
obligations and all material Requirements of Law, (ii) there does not exist any
material order, decree, judgment, ruling or injunction or any material pending
or threatened action, suit, investigation or proceeding against the Borrower or
any of its Subsidiaries, (iii) the financial statements and information
delivered to the Administrative Agent on or before the Closing Date were
prepared in good faith and in accordance with GAAP and (iv) immediately after
giving effect to this Credit Agreement, the other Credit Documents and the FMB
Mortgage Documents and all the transactions contemplated herein or therein to
occur on such date, (A) the Borrower is Solvent, (B) no Default or Event of
Default exists, (C) all representations and warranties contained herein and in
the other Credit Documents and the FMB Mortgage Documents are true and correct
in all material respects, (D) since December 31, 2008, there has been no
development or event relating to or affecting the Borrower or any of its
Subsidiaries that has had or could be reasonably expected to have a Material
Adverse Effect and there exists no event, condition or state of facts that could
result in or reasonably be expected to result in a Material Adverse Change and
(E) the Borrower is in compliance with the financial covenant set forth in
Section 7.2, as of December 31, 2008, as demonstrated in the Covenant Compliance
Worksheet attached to such certificate.

    


    (k)           Fees and
Expenses.  Unless waived by the Person entitled thereto,
payment by the Borrower of all fees and expenses owed by it to the
Administrative Agent, the Arrangers and the Lenders on or before the Closing
Date, including, without limitation, as set forth in the Fee
Letters.

    


    (l)           FMB Mortgage
Documents.  To the extent requested by the Administrative
Agent, copies of each document (including any Uniform Commercial Code financing
statement) required by the FMB Mortgage Documents to be filed, registered or
recorded in order to create in favor of the First Mortgage Bond Trustee for the
benefit of the holders of the First Mortgage Bonds, including the Administrative
Agent, for the benefit of the Lenders, a valid direct first deed of trust lien
and security interest on the Mortgaged Property, in each case, in proper form
for filing, registration or recordation.

    


    (m)           Termination of Existing
Credit Agreement.  The Administrative Agent shall have received
evidence satisfactory to it that that certain Credit Agreement, dated as of May
15, 2008, by and among the Borrower, the financial institutions from time to
time parties thereto, and JPMCB, as administrative agent, as amended as of the
date hereof shall have been cancelled and terminated and all indebtedness
thereunder shall have been fully repaid.

    


    (m)           Other.  Receipt
by the Lenders of such other documents, instruments, agreements or information
as reasonably requested by any Lender.

    


    Without
limiting the generality of the provisions of Section 10.4, for purposes of
determining compliance with the conditions specified in this Section, each
Lender that has signed this Credit Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.

    


    


    
      
        
        

      

      
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    SECTION
5

    


    CONDITIONS
TO ALL EXTENSIONS OF CREDIT

    


    5.1         
      Funding
Requirements.

    


    In
addition to the conditions precedent stated elsewhere herein, the Lenders shall
not be obligated to make Revolving Loans and the L/C Issuer shall not be
obligated to issue Letters of Credit unless:

    


    (a)           Notice. The Borrower
shall have delivered (i) in the case of any new Revolving Loan, a Notice of
Borrowing, duly executed and completed, by the time specified in Section 2.1 and
(ii) in the case of any Letter of Credit, a Letter of Credit Application, duly
executed and completed, by the time specified in Section 2.2.

    


    (b)           Representations and
Warranties.  The representations and warranties made by the
Borrower in any Credit Document (other than the representation and warranties in
Section 6.7(a) (but only with respect to clause (a) of the definition of
Material Adverse Effect) and Section 6.9 of the Credit Agreement) and the FMB
Mortgage are true and correct in all material respects at and as if made as of
such date except to the extent they expressly and exclusively relate to an
earlier date.

    


    (c)           No
Default.  No Default or Event of Default as to the Borrower
shall exist and be continuing either prior to or after giving effect to such
Credit Extension.

    


    (d)           Availability.  Immediately
after giving effect to such Credit Extension (and the application of the
proceeds thereof), (i) the aggregate principal amount of outstanding Revolving
Loans plus the aggregate principal amount of outstanding L/C Obligations shall
not exceed the Revolving Committed Amount, (ii) with respect to each individual
Lender, the sum of outstanding principal amount of Revolving Loans of such
Lender and outstanding principal amount of L/C Obligations of such Lender shall
not exceed such Lender’s Pro Rata Share of the Revolving Committed Amount and
(iii) the aggregate amount of L/C Obligations shall not exceed the Letter of
Credit Sublimit.

    


    The
delivery of each Notice of Borrowing or a Letter of Credit Application shall
constitute a representation and warranty by the Borrower of the correctness of
the matters specified in subsections (b), (c) and (d) above.

    


    


    SECTION
6

    


    REPRESENTATIONS
AND WARRANTIES

    


    To induce
the Administrative Agent and the Lenders to enter into this Credit Agreement and
to induce the Lenders to extend the credit contemplated hereby, the Borrower
represents and warrants to the Administrative Agent and the Lenders as
follows:

    


    6.1            
   Organization and Good
Standing.

    


    The
Borrower and its Subsidiaries (a) are duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) are
duly qualified and in good standing as a 

     

    
      
        
        

      

      
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    foreign
entity authorized to do business in every other jurisdiction where the failure
to so qualify would have a Material Adverse Effect and (c) have the requisite
power and authority to own its properties and to carry on its business as now
conducted and as proposed to be conducted.

    


    6.2         
       Due
Authorization.

    


    The
Borrower and any of its Subsidiaries party to any Credit Document (a) has the
requisite power and authority to execute, deliver and perform this Credit
Agreement, the FMB Mortgage and the other Credit Documents to which it is a
party and to incur the obligations herein and therein provided for and (b) has
been authorized by all necessary action to execute, deliver and perform this
Credit Agreement, the FMB Mortgage and the other Credit Documents to which it is
a party.

    


    6.3          
      No
Conflicts.

     


    Neither
the execution and delivery of this Credit Agreement, the FMB Mortgage and the
other Credit Documents, nor the consummation of the transactions contemplated
herein and therein, nor performance of and compliance with the terms and
provisions hereof and thereof by the Borrower will (a) violate or conflict with
any provision of its organizational documents, (b) violate, contravene or
conflict with any law (including without limitation, the Public Utility Holding
Company Act of 1935, as amended), regulation (including without limitation,
Regulation U and Regulation X), order, writ, judgment, injunction, decree or
permit applicable to it, (c) violate, contravene or conflict with contractual
provisions of, or cause an event of default under, any indenture, loan
agreement, mortgage, deed of trust, contract or other agreement or instrument to
which it is a party or by which it may be bound, the violation of which would
have or would be reasonably expected to have a Material Adverse Effect or (d)
result in or require the creation of any Lien upon or with respect to its
properties (except the Lien of the FMB Mortgage Documents in favor of the First
Mortgage Bond Trustee).

    


    6.4              
  Consents.

    


    No
consent, approval, authorization or order of, or filing, registration or
qualification with, any court or Governmental Authority or third party is
required in connection with the execution, delivery or performance of this
Credit Agreement, the FMB Mortgage or any of the other Credit Documents that has
not been obtained or completed, except for such consents, approvals,
authorizations, orders and registrations or qualifications as may be required to
enforce the Lien of the FMB Mortgage Documents, exercise remedies under the FMB
Mortgage Documents, or use, operate, assign, lease or transfer property of the
Borrower in connection therewith.

    


    6.5            
    Enforceable
Obligations.

    


    This
Credit Agreement, the FMB Mortgage and the other Credit Documents to which it is
a party have been duly executed and delivered and constitute the legal, valid
and binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms, except as may be limited by Debtor
Relief Laws or similar laws affecting creditors’ rights generally or by general
equitable principles.

    


    6.6             
   Financial
Condition.

    


    The
financial statements delivered to the Lenders pursuant to Section 4.1(d)
and pursuant to Sections 7.1(a) and (b): (i) have been prepared in
accordance with GAAP except that the quarterly financial statements are subject
to year-end adjustments and have fewer footnotes than annual statements and (ii)
present fairly the financial condition, results of operations and cash flows of
the Borrower and its Subsidiaries as of such date and for such
periods.  No opinion provided with respect to the Borrower’s


     

    
      
        
        

      

      
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    financial
statements pursuant to Section 7.1 (or as to any prior annual financial
statements) has been withdrawn.

    


    6.7            
   No
Material Change.

    


    (a)           Since
December 31, 2008, there has been no development or event relating to or
affecting the Borrower or any of its Subsidiaries which would have or would
reasonably be expected to have a Material Adverse Effect.

    


    (b)           Since
December 31, 2008, there has been no sale, transfer or other disposition by the
Borrower or any of its Subsidiaries of any material part of its business or
property, and no purchase or other acquisition by the Borrower or any of its
Subsidiaries of any business or property (including the Capital Stock of any
other Person) material in relation to the financial condition of the Borrower or
any of its Subsidiaries, in each case which is not (i) reflected in the most
recent financial statements delivered to the Lenders pursuant to
Section 4.1(d) or 7.1 or in the notes thereto or (ii) otherwise permitted
by the terms of this Credit Agreement and communicated to the
Lenders.

    


    6.8            
   No
Default.

    


    Neither
the Borrower nor any of its Subsidiaries is in default in any respect under any
contract, lease, loan agreement, indenture, mortgage, security agreement or
other agreement or obligation to which it is a party or by which any of its
properties is bound which default would have or would reasonably be expected to
have a Material Adverse Effect.  No Default or Event of Default
presently exists and is continuing.

    


    6.9           
    Litigation.

    


    There are
no actions, suits, investigations or legal, equitable, arbitration or
administrative proceedings, pending or, to the knowledge of the Borrower,
threatened against the Borrower or any of its Subsidiaries which would have or
would reasonably be expected to have a Material Adverse Effect.

    


    6.10              Taxes.

    


    The
Borrower and its Subsidiaries have filed, or caused to be filed, all material
tax returns (federal, state, local and foreign) required to be filed and paid
all amounts of taxes shown thereon to be due (including interest and penalties)
and has paid all other taxes, fees, assessments and other governmental charges
(including mortgage recording taxes, documentary stamp taxes and intangibles
taxes) owing by it, except for such taxes which are not yet delinquent or that
are being contested in good faith and by proper proceedings, and against which
adequate reserves are being maintained in accordance with GAAP.

    


    6.11              Compliance with
Law.

    


    The
Borrower and its Subsidiaries are in compliance with all laws, rules,
regulations, orders and decrees applicable to it or to its properties, unless
such failure to comply would not have or would not reasonably be expected to
have a Material Adverse Effect.

    


    6.12              ERISA.

    


    Except as
would not result or reasonably be expected to result in a Material Adverse
Effect:

    


    
      
        
        

      

      
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    (a)           During
the five-year period prior to the date on which this representation is made or
deemed made: (i) no ERISA Event has occurred, and, to the best knowledge of the
Borrower, no event or condition has occurred or exists as a result of which any
ERISA Event would be reasonably expected to occur, with respect to any Plan;
(ii) no “accumulated funding deficiency,” as such term is defined in Section 302
of ERISA and Section 412 of the Code, whether or not waived, has occurred with
respect to any Plan; (iii) each Plan has been maintained, operated, and funded
in compliance with its own terms and in material compliance with the provisions
of ERISA, the Code, and any other applicable federal or state laws; and (iv) no
Lien in favor or the PBGC or a Plan has arisen or is reasonably likely to arise
on account of any Plan.

    


    (b)           The
actuarial present value of all “benefit liabilities” under each Single Employer
Plan (determined within the meaning of Section 401(a)(2) of the Code, utilizing
the actuarial assumptions used to fund such Plans), whether or not vested, did
not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the current value of the assets of
such Plan allocable to such accrued liabilities, except as disclosed in the
Borrower’s financial statements.

    


    (c)           Neither
the Borrower nor any ERISA Affiliate has incurred, or, to the best knowledge of
the Borrower, is reasonably expected to incur, any withdrawal liability under
ERISA to any Multiemployer Plan or Multiple Employer Plan.  Neither
the Borrower nor any ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization (within the meaning of Section 4241 of
ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or has been
terminated (within the meaning of Title IV of ERISA), and no Multiemployer Plan
is, to the best knowledge of the Borrower, reasonably expected to be in
reorganization, insolvent, or terminated.

    


    (d)           No
prohibited transaction (within the meaning of Section 406 of ERISA or Section
4975 of the Code) or breach of fiduciary responsibility has occurred with
respect to a Plan which has subjected or would be reasonably likely to subject
the Borrower or any ERISA Affiliate to any liability under Sections 406, 409,
502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any agreement
or other instrument pursuant to which the Borrower or any ERISA Affiliate has
agreed or is required to indemnify any person against any such
liability.

    


    (e)           The
present value (determined using actuarial and other assumptions which are
reasonable with respect to the benefits provided and the employees
participating) of the liability of the Borrower and each ERISA Affiliate for
post-retirement welfare benefits to be provided to their current and former
employees under Plans which are welfare benefit plans (as defined in Section
3(1) of ERISA), net of all assets under all such Plans allocable to such
benefits, are reflected on the financial statements referenced in Section 7.1 in
accordance with FASB 106.

    


    (f)           Each
Plan which is a welfare plan (as defined in Section 3(1) of ERISA) to which
Sections 601-609 of ERISA and Section 4980B of the Code apply has been
administered in compliance in all material respects with such
sections.

    


    6.13              Use of Proceeds; Margin
Stock.

    


    The
proceeds of the Credit Extensions to the Borrower hereunder will be used solely
for the purposes specified in  Section 7.9.  None of
such proceeds will be used for the purpose of (a) (i) purchasing or carrying any
Margin Stock or (ii) reducing or retiring any Indebtedness which was originally
incurred to purchase or carry Margin Stock, or (iii) for any other purpose that
might constitute this transaction a “purpose credit” within the meaning of
Regulation U or (b) for the acquisition of another Person unless the board of


     

    
      
        
        

      

      
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    directors
(or other comparable governing body) or stockholders, as appropriate, of such
Person has approved such acquisition.

    


    6.14              Government
Regulation.

    


    The
Borrower is not an “investment company” registered or required to be registered
under the Investment Company Act of 1940, as amended, or controlled by such a
company.

    


    6.15              Solvency.

    


    The
Borrower is and, after the consummation of the transactions contemplated by this
Credit Agreement, will be Solvent.

    


    6.16              Disclosure.

    


    Neither
this Credit Agreement nor any financial statements delivered to the
Administrative Agent or the Lenders nor any other document, certificate or
statement furnished to the Administrative Agent or the Lenders by or on behalf
of the Borrower in connection with the transactions contemplated hereby contains
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained therein or herein, taken as
a whole, not misleading.

    


    6.17              Environmental
Matters.

    


    Except as
would not result or reasonably be expected to result in a Material Adverse
Effect:  (a) each of the properties of the Borrower and its
Subsidiaries (the “Properties”) and all
operations at the Properties are in substantial compliance with all applicable
Environmental Laws, (b) there is no undocumented or unreported violation of any
Environmental Law with respect to the Properties or the businesses operated by
the Borrower and its Subsidiaries (the “Businesses”) that the
Borrower is aware of, and (c) there are no conditions relating to the Businesses
or Properties that have given rise to or would reasonably be expected to give
rise to a liability under any applicable Environmental Laws.

    


    6.18              First Mortgage Bonds Validly
Issued.

    


    The First
Mortgage Bonds have been duly authorized and executed by the Borrower,
authenticated by the First Mortgage Bond Trustee in accordance with the FMB
Mortgage and the Third Supplemental Indenture and validly issued and delivered,
pursuant to the terms of the FMB Delivery Agreement, to the Administrative
Agent, and the First Mortgage Bonds constitute valid and binding obligations of
the Borrower entitled to the benefits and security of the FMB Mortgage and the
Third Supplemental Indenture and are enforceable against the Borrower in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors’ rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).  The FMB Mortgage, as supplemented
by the Third Supplemental Indenture, complies as to form with the requirements
of the Trust Indenture Act of 1939, as amended.  The First Mortgage
Bonds are not required to be registered under the Securities Act.  The
issuance to the Administrative Agent of the First Mortgage Bonds as described in
this Credit Agreement will not violate any provision of the FMB Mortgage, as
supplemented by the Third Supplemental Indenture.  In addition, the
issuance to the Administrative Agent of the First Mortgage Bonds as described in
this Credit Agreement will not violate any provision of any other agreement or
instrument or any law or regulation, or judicial or regulatory order, judgment
or decree to which the Borrower or any of its Subsidiaries is a party or by
which any of the foregoing is bound, the violation of which would have or would
be reasonably expected to have a Material Adverse Effect.

    


    
      
        
        

      

      
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    6.19              First Priority
Mortgage.

    


    The
Borrower has good and indefeasible title to (or valid rights to lease or use, by
easement or otherwise) all real property comprising the Mortgaged Property, and
good and valid title to (or valid rights to use, by easement or otherwise) all
fixtures and personal property comprising the Mortgaged Property, and (i) all
such Mortgaged Property is subject to the Lien of the FMB Mortgage Documents,
and (ii) all such Mortgaged Property acquired by the Borrower after the
respective dates of the FMB Mortgage and the Third Supplemental Indenture have
become or will, upon such acquisition, become, subject to the Lien
thereof.  The FMB Mortgage constitutes a valid direct first deed of
trust lien and security interest upon all Mortgaged Property, subject only to
“Permitted Liens” (as such term is defined in the FMB Mortgage).  The
rights, powers, Liens and privileges purported to be created pursuant to the FMB
Mortgage Documents in favor of the Administrative Agent, as the holder of the
First Mortgage Bonds for the benefit of the Lenders, shall be equal and ratable
with the holders of other bonds issued pursuant to the FMB Mortgage
Documents.

    


    


    SECTION
7

    


    AFFIRMATIVE
COVENANTS

    


    The
Borrower covenants and agrees that, until the termination of the Commitments,
the termination or expiration of all Letters of Credit and the payment in full
of all of the Borrower Obligations:

    


    7.1            
   Information
Covenants.

    


    The
Borrower will furnish, or cause to be furnished, to the Lenders:

    


    (a)           Annual Financial
Statements.  As soon as available, and in any event within 120
days after the close of each Fiscal Year of the Borrower commencing with the
2009 Fiscal Year, a consolidated balance sheet and income statement of the
Borrower and its Subsidiaries, as of the end of such Fiscal Year, together with
the related consolidated statements of income and of cash flows for such Fiscal
Year, setting forth in comparative form figures for the preceding Fiscal Year,
all such financial information described above to be in reasonable form and
detail and, in each case, audited by independent certified public accountants of
recognized national standing reasonably acceptable to the Required Lenders and
whose opinion shall be furnished to the Lenders, and shall be to the effect that
such financial statements have been prepared in accordance with GAAP (except for
changes with which such accountants concur) and shall not be limited as to the
scope of the audit or qualified in any respect.

    


    (b)           Quarterly Financial
Statements.  As soon as available, and in any event within 60
days after the close of each Fiscal Quarter of the Borrower commencing with the
Fiscal Quarter ending March 31, 2008 (other than the fourth Fiscal Quarter), a
consolidated balance sheet and income statement of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter, together with the related
consolidated statement of income for such Fiscal Quarter and a year to date
statement of cash flows, in each case setting forth in comparative form figures
for the corresponding period of the preceding Fiscal Year, all such financial
information described above to be in reasonable form and detail and reasonably
acceptable to the Required Lenders, and, in each case, accompanied by a
certificate of a Financial Officer of the Borrower to the effect that such
quarterly financial statements fairly present in all material respects the
financial condition of 

     

    
      
        
        

      

      
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    such
Person and have been prepared in accordance with GAAP, subject to changes
resulting from audit and normal year-end audit adjustments and except that the
quarterly financial statements have fewer footnotes than annual
statements.

    


    (c)           Officer’s
Certificate.  At the time of delivery of the financial
statements provided for in Sections 7.1(a) and 7.1(b) above, a certificate
of a Financial Officer substantially in the form of Exhibit 7.1(c):
(i) setting forth calculations demonstrating compliance by the Borrower
with the financial covenant set forth in Section 7.2 as of the end of such
fiscal period and (ii) stating that no Default or Event of Default exists,
or if any Default or Event of Default does exist, specifying the nature and
extent thereof and what action the Borrower proposes to take with respect
thereto.

    


    (d)           Reports.  Notice
of the filing by the Borrower of any Form 10-Q, Form 10-K or Form 8-K with the
SEC promptly upon the filing thereof and copies of all financial statements,
proxy statements, notices and reports as the Borrower shall send to its
shareholders concurrently with the mailing of any such statements, notices or
reports to its shareholders.

    


    (e)           Notices.  Upon
the Borrower obtaining knowledge thereof, the Borrower will give written notice
to the Administrative Agent within ten days of (i) the occurrence of a Default
or Event of Default, specifying the nature and extent thereof and what action
the Borrower proposes to take with respect thereto, (ii) the occurrence of any
of the following with respect to the Borrower or any of its Subsidiaries (A) the
pendency or commencement of any litigation, arbitration or governmental
proceeding against the Borrower or any of its Subsidiaries which, if adversely
determined, would have or would reasonably be expected to have a Material
Adverse Effect, (B) one or more judgments, orders, or decrees shall be entered
against the Borrower or any of its Subsidiaries involving a liability of
$5,000,000 or more, in the aggregate or (C) the institution of any proceedings
against the Borrower or any of its Subsidiaries with respect to, or the receipt
of notice by such Person of potential liability or responsibility for violation
or alleged violation of, any federal, state or local law, rule or regulation
(including, without limitation, any Environmental Law), the violation of which
would have or would reasonably be expected to have a Material Adverse Effect and
(iii) the First Mortgage Bond Trustee resigning as trustee under the FMB
Mortgage.

    


    (f)           ERISA.  Upon
the Borrower or any ERISA Affiliate obtaining knowledge thereof, the Borrower
will give written notice to the Administrative Agent promptly (and in any event
within ten days) of any of the following which would result in or reasonably
would be expected to result in a Material Adverse Effect: (i) any event or
condition, including, but not limited to, any Reportable Event, that
constitutes, or would be reasonably expected to lead to, an ERISA Event; (ii)
with respect to any Multiemployer Plan, the receipt of notice as prescribed in
ERISA or otherwise of any withdrawal liability assessed against the Borrower or
any of its ERISA Affiliates, or of a determination that any Multiemployer Plan
is in reorganization or insolvent (both within the meaning of Title IV of
ERISA); (iii) the failure to make full payment on or before the due date
(including extensions) thereof of all amounts which the Borrower or any of its
Subsidiaries or ERISA Affiliates is required to contribute to each Plan pursuant
to its terms and as required to meet the minimum funding standard set forth in
ERISA and the Code with respect thereto; or (iv) a change in the funding status
of any Plan, in each case together with a description of any such event or
condition or a copy of any such notice and a statement by an officer of the
Borrower briefly setting forth the details regarding such event, condition, or
notice, and the action, if any, which has been or is being taken or is proposed
to be taken with respect thereto.  Promptly upon request, the Borrower
shall furnish the Lenders with such additional information concerning any Plan
as may be reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor


     

    
      
        
        

      

      
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    and/or
the Internal Revenue Service pursuant to ERISA and the Code, respectively, for
each “plan year” (within the meaning of Section 3(39) of ERISA).

    


    (g)           Debt
Ratings.   Prompt notice of any change in the Debt Ratings
of the Borrower.

    


    (h)           Other
Information.  With reasonable promptness upon any such request,
such other information regarding the business, properties or financial condition
of the Borrower as the Lenders may reasonably request.

    


    Documents
required to be delivered pursuant to Section 7.1(a), (b) or (d) (to the extent
any such documents are included in materials otherwise filed with the Securities
and Exchange Commission) may be delivered electronically and if so delivered,
shall be deemed to have been delivered on the date (i) on which the Parent posts
such documents, or provides a link thereto on the Parent’s website on the
Internet at the website address listed on Schedule 11.1;
or (ii) on which such documents are posted on the Borrower’s behalf on an
Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: (A)
the Borrower shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (B) the Borrower shall notify the
Administrative Agent and each Lender (by telecopier or electronic mail) of the
posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of
such documents.  Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the Officer’s
Certificate required by Section 7.1(c) to the Administrative
Agent.  Except for such Officer’s Certificate, the Administrative
Agent shall have no obligation to request the delivery or to maintain copies of
the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Borrower with any such request for delivery, and
each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.

    


    7.2              
 Financial
Covenant.

    


    
      	
               
      

            	
              Debt
      Capitalization.  At all times the ratio of
      (i) Consolidated Indebtedness of the Borrower to
      (ii) Consolidated Capitalization of the Borrower shall be less than
      or equal to 0.65 to 1.0.

            


    

    


    7.3             
  Preservation of Existence
and Franchises.

    


    (a)           Except
in a transaction permitted by Section 8.2, the Borrower will do (and will cause
each of its Subsidiaries to do) all things necessary to preserve and keep in
full force and effect its existence and rights, franchises and
authority.

    


    (b)           The
Borrower will maintain (and will cause each of its Subsidiaries to maintain) its
properties in good condition and not waste or otherwise permit such properties
to deteriorate, reasonable wear and tear excepted.

    


    7.4        
       Books and
Records.

    


    The
Borrower will keep (and will cause each of its Subsidiaries to keep) complete
and accurate books and records of its transactions in accordance with good
accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).

    


    
      
        
        

      

      
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    7.5              
  Compliance
with Law.

    


    The
Borrower will comply (and will cause each of its Subsidiaries to comply) with
all laws (including, without limitation, all Environmental Laws and ERISA laws),
rules, regulations and orders, and all applicable restrictions imposed by all
Governmental Authorities, applicable to it and its properties, if the failure to
comply would have or would reasonably be expected to have a Material Adverse
Effect.

    


    7.6          
      Payment of Taxes and Other
Indebtedness.

    


    The
Borrower will (and will cause each of its Subsidiaries to) pay, settle or
discharge (a) all taxes, assessments and governmental charges or levies imposed
upon it, or upon its income or profits, or upon any of its properties, before
they shall become delinquent, (b) all lawful claims (including claims for labor,
materials and supplies) which, if unpaid, might give rise to a Lien upon any of
its properties, and (c) all of its other Indebtedness as it shall become due (to
the extent such repayment is not otherwise prohibited by this Credit Agreement);
provided, however, that the
Borrower and its Subsidiaries shall not be required to pay any such tax,
assessment, charge, levy, claim or Indebtedness which is being contested in good
faith by appropriate proceedings and as to which adequate reserves therefor have
been established in accordance with GAAP, unless the failure to make any such
payment (i) would give rise to an immediate right to foreclose or collect on a
Lien securing such amounts or (ii) would have or would be reasonably expected to
have a Material Adverse Effect.

    


    7.7         
       Insurance.

    


    The
Borrower will (and will cause each of its Subsidiaries to) at all times maintain
in full force and effect insurance (including worker’s compensation insurance
and general liability insurance) in such amounts, covering such risks and
liabilities and with such deductibles or self-insurance retentions as are in
accordance with normal industry practice.

    


    7.8          
      Performance of
Obligations.

    


    The
Borrower will perform (and will cause each of its Subsidiaries to perform) in
all material respects all of its obligations under the terms of the Third
Supplemental Indenture, the First Mortgage Bonds and all other material
agreements, indentures, mortgages, security agreements or other debt instruments
to which it is a party or by which it is bound.

    


    7.9          
     Use of
Proceeds.

    


    The
proceeds of the Credit Extensions may be used solely for working capital,
letters of credit, capital expenditures and other lawful purposes of the
Borrower.

    


    7.10              Audits/Inspections.

    


    Upon
reasonable notice and during normal business hours, the Borrower will permit
representatives appointed by the Administrative Agent or the Lenders, including,
without limitation, independent accountants, agents, attorneys, and appraisers
to visit and inspect the Borrower’s property, including its books and records,
its accounts receivable and inventory, the Borrower’s facilities and its other
business assets, and to make photocopies or photographs thereof and to write
down and record any information such representative obtains and shall permit the
Administrative Agent or such Lender or its representatives to investigate and
verify the accuracy of information provided to it and to discuss all such
matters with the officers, employees and representatives of the Borrower;
provided, that an officer or authorized agent of the 

     

    
      
        
        

      

      
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    Borrower
shall be present during any such discussions between the officers, employees or
representatives of the Borrower and the representatives of the Administrative
Agent or any Lender.

    


    7.11              [RESERVED].

    


    


    SECTION
8

    


    NEGATIVE
COVENANTS

    


    Unless
otherwise approved in writing by the Required Lenders, the Borrower covenants
and agrees that, until the termination of the Commitments, the termination or
expiration of all Letters of Credit and the payment in full of the Borrower
Obligations:

    


    8.1           
     Nature of
Business.

    


    The
Borrower will not materially alter the character of its business from that
conducted as of the Closing Date.

    


    8.2            
    Consolidation and
Merger.

    


    The
Borrower will not (a) enter into any transaction of merger or (b) consolidate,
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); provided that, so
long as no Default or Event of Default shall exist or be caused thereby a Person
may be merged or consolidated with or into the Borrower so long as the Borrower
shall be the continuing or surviving Person.

    


    8.3          
      Sale or Lease of
Assets.

    


    The
Borrower will not (nor will it permit its Subsidiaries to) sell, lease, transfer
or otherwise dispose of, any of its assets (including, without limitation, all
or substantially all of its assets, whether in one transaction or a series of
related transactions) except (a) sales or other transfers of assets for fair
value, if the aggregate value of all such transactions in any calendar year,
does not exceed 25% of the book value of
Total Assets of the Borrower, as calculated as of the end of the most recent
Fiscal Quarter, and
(b) sales, leases, transfers or other dispositions, at less than fair
value, of any other assets of the Borrower and its Subsidiaries, provided that the
aggregate book value of such assets shall not exceed $10,000,000 in any calendar
year.

    


    8.4           
     Affiliate
Transactions.

    


    The
Borrower will not enter into any transaction or series of transactions, whether
or not in the ordinary course of business, with any Affiliate other than on
terms and conditions substantially as favorable as would be obtainable in a
comparable arm’s-length transaction with a Person other than an
Affiliate.

    


    8.5        
        Liens.

    


    The
Borrower will not (nor will it permit its Subsidiaries to) contract, create,
incur, assume or permit to exist any Lien with respect to any of its property or
assets of any kind (whether real or personal, tangible or intangible), whether
now owned or hereafter acquired, securing any Indebtedness other than the
following: (a) Liens securing Borrower Obligations, (b) Liens for taxes not
yet due or Liens for taxes being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance with GAAP have
been established (and as to which the property subject to any such Lien is


     

    
      
        
        

      

      
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    not yet
subject to foreclosure, sale or loss on account thereof), (c) Liens in
respect of property imposed by law arising in the ordinary course of business
such as materialmen’s, mechanics’, warehousemen’s, carrier’s, landlords’ and
other nonconsensual statutory Liens which are not yet due and payable, which
have been in existence less than 90 days or which are being contested in good
faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which the property subject
to any such Lien is not yet subject to foreclosure, sale or loss on account
thereof), (d) pledges or deposits made in the ordinary course of business
to secure payment of worker’s compensation insurance, unemployment insurance,
pensions or social security programs, (e) Liens arising from good faith
deposits in connection with or to secure performance of tenders, bids, leases,
government contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (other than obligations
in respect of the payment of borrowed money), (f) Liens arising from good
faith deposits in connection with or to secure performance of statutory
obligations and surety and appeal bonds, (g) easements, rights-of-way,
restrictions (including zoning restrictions), minor defects or irregularities in
title and other similar charges or encumbrances not, in any material respect,
impairing the use of the encumbered property for its intended purposes,
(h) judgment Liens that would not constitute an Event of Default,
(i) 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 creditor depository institution,
(j) any Lien created or arising over any property which is acquired,
constructed or created by the Borrower or its Subsidiaries, but only if
(i) such Lien secures only principal amounts (not exceeding the cost of
such acquisition, construction or creation) raised for the purposes of such
acquisition, construction or creation, together with any costs, expenses,
interest and fees incurred in relation thereto or a guarantee given in respect
thereof, (ii) such Lien is created or arises on or before 180 days after
the completion of such acquisition, construction or creation, (iii) such
Lien is confined solely to the property so acquired, constructed or created and
any improvements thereto and (iv) the aggregate principal amount of all
Indebtedness at any one time outstanding that is secured by such Liens shall not
exceed $25,000,000, (k) any Lien on Margin Stock, (l)  the assignment
of, or Liens on, demand, energy or wheeling revenues, or on capacity reservation
or option fees, payable to the Borrower or any of its Subsidiaries with respect
to any wholesale electric service or transmission agreements, the assignment of,
or Liens on, revenues from energy services contracts, and the assignment of, or
Liens on, capacity reservation or option fees payable to the Borrower or such
Subsidiary with respect to asset sales permitted herein, (m) any extension,
renewal or replacement (or successive extensions, renewals or replacements), as
a whole or in part, of any Liens referred to in the foregoing clauses (a)
through (l), for amounts not exceeding the principal amount of the Indebtedness
secured by the Lien so extended, renewed or replaced, provided that such
extension, renewal or replacement Lien is limited to all or a part of the same
property or assets that were covered by the Lien extended, renewed or replaced
(plus improvements on such property or assets), (n) Liens securing obligations
under Hedging Agreements entered into in the ordinary course of business and not
for speculative purposes, (o) Liens granted by bankruptcy-remote special purpose
Subsidiaries to secure stranded cost securitization bonds, (p) Liens upon any
property in favor of the administrative agent for the benefit of the lenders
(the “2009 Term Loan
Administrative Agent”) under the 2009 Term Loan Credit Agreement securing
Indebtedness thereunder; provided that (i) the Borrower Obligations shall
concurrently be secured equally and ratably with (or prior to) such Indebtedness
under the 2009 Term Loan Credit Agreement so long as such other Indebtedness
shall be secured and (ii) the Borrower, such 2009 Term Loan Administrative Agent
and the Administrative Agent, for the benefit of the Lenders, shall have entered
into such security agreements, collateral trust and sharing agreements,
intercreditor agreements and other documentation deemed necessary by the
Administrative Agent in respect of such Lien on terms and conditions acceptable
to the Administrative Agent (including, without limitation, with respect to the
voting of claims and release or modification of any such Lien or all or any
portion of the collateral thereunder), (q) the Lien of the FMB Mortgage
Documents on the Mortgaged Property securing an aggregate principal amount of
Indebtedness (other than the Borrower Obligations) not to exceed $325,000,000,
and Liens on the Mortgaged Property which would not otherwise be permitted under
this Section 8.5 and which are “Permitted Liens” (as such 

     

    
      
        
        

      

      
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    term is
defined in the FMB Mortgage as in effect on the date hereof) and (r) Liens on
Property, in addition to those otherwise permitted by clauses (a) through (q)
above, securing, directly or indirectly, Indebtedness or obligations of the
Borrower and its Subsidiaries arising pursuant to other agreements entered into
in the ordinary course of business which do not exceed, in the aggregate at any
one time outstanding, $25,000,000.

    


    8.6             
   Accounting
Changes.

    


    The
Borrower will not (nor will it permit any of its Subsidiaries to) make or permit
any change in accounting policies or reporting practices, except as required by
GAAP, or as permitted by GAAP, if the amounts involved are not
material.

    


    8.7            
    Burdensome
Agreements.

    


    The
Borrower will not (nor will it permit any of its Subsidiaries to) enter into any
contractual obligation that limits the ability (a) of any Subsidiary of the
Borrower to make Restricted Payments to the Borrower or to otherwise transfer
property to the Borrower or (b) of the Borrower to create, incur, assume or
suffer to exist Liens on its property in favor of the Administrative Agent, for
the benefit of the Lenders, other than (i) any such contractual obligation
contained in the Credit Documents; (ii) any such contractual obligation
contained in the “Credit Documents” (or any similar term) defined in the 2009
Term Loan Credit Agreement to the extent such contractual obligations in such
“Credit Documents” (or any similar term) shall be no less favorable to the
Administrative Agent and the Lenders than such contractual obligations set forth
in the 2009 Term Loan Credit Agreement as in effect on the date hereof without
giving effect to any subsequent amendment or other modification to such
contractual obligations; and (iii) any such contractual obligation contained in
the Note Facilities Documentation as in effect on the date hereof without giving
effect to any subsequent amendment or other modification to such contractual
obligations.

    


    


    SECTION
9

    


    EVENTS OF
DEFAULT

    


    9.1           
     Events of
Default.

    


    An Event
of Default with respect to the Borrower shall exist upon the occurrence of any
of the following specified events (each an “Event of
Default”):

    


    (a)           Payment.  The
Borrower shall:  (i) default in the payment when due of any principal
of any of its Revolving Loans or L/C Obligations; or (ii) default, and such
default shall continue for three or more Business Days, in the payment when due
of any interest on its Loans or L/C Obligations or of any fees or other amounts
owing by it hereunder, under any of the other Credit Documents or in connection
herewith or therewith.

    


    (b)           Representations.  Any
representation, warranty or statement made or deemed to be made by the Borrower
herein or in any of the other Credit Documents, or in any statement or
certificate delivered or required to be delivered pursuant hereto or thereto
shall prove untrue in any material respect on the date as of which it was deemed
to have been made.

    


    
      
        
        

      

      
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    (c)           Covenants.  The
Borrower shall:

    


    (i)           default
in the due performance or observance of any term, covenant or agreement
contained in Sections 7.1(e)(i), 7.2, 7.3(a) (solely with respect to the
existence of the Borrower), 7.9, 7.10 or 8.1 through 8.7, inclusive;
or

    


    (ii)           default
in the due performance or observance by it of any term, covenant or agreement
(other than those referred to in subsections (a), (b) or (c)(i) of this Section
9.1) contained in this Credit Agreement or any other Credit Document and the
default shall continue unremedied for a period of at least 10 days after the
earlier of the Borrower becoming aware of such default or notice thereof given
by the Administrative Agent.

    


    (d)           Credit Documents; FMB
Mortgage.  Any Credit Document  or the FMB Mortgage
shall fail to be in force and effect or the Borrower shall so assert or any
Credit Document  or the FMB Mortgage shall fail to give the
Administrative Agent or the Lenders, or the First Mortgage Bond Trustee, as
applicable, the rights, powers, liens and privileges purported to be created
thereby.

    


    (e)           Bankruptcy,
etc.  The occurrence of any of the following with respect to
the Borrower or any of its Subsidiaries (i) a court or governmental agency
having jurisdiction in the premises shall enter a decree or order for relief in
respect of the Borrower or any of its Subsidiaries in an involuntary case under
any applicable Debtor Relief Law now or hereafter in effect, or appoint a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Borrower or any of its Subsidiaries or for any substantial part
of their property or ordering the winding up or liquidation of its affairs; or
(ii) an involuntary case under any applicable Debtor Relief Law now or
hereafter in effect is commenced against the Borrower or any of its Subsidiaries
and such petition remains unstayed and in effect for a period of 60 consecutive
days; or (iii) the Borrower or any of its Subsidiaries shall commence a
voluntary case under any applicable Debtor Relief Law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of such Person or any substantial part of its property or make any
general assignment for the benefit of creditors; or (iv) the Borrower or any of
its Subsidiaries admit in writing its inability to pay its debts generally as
they become due or any action shall be taken by any Person in furtherance of any
of the aforesaid purposes.

    


    (f)           Defaults under Other
Agreements.

    


    (i)           The
Borrower or any of its Subsidiaries shall default in the due performance or
observance (beyond the applicable grace period with respect thereto) of any
material obligation or condition of any contract or lease to which it is a
party, if such default would have or would reasonably be expected to have a
Material Adverse Effect.

    


    (ii)           With
respect to any Indebtedness of the Borrower or any of its Subsidiaries (other
than Indebtedness outstanding under this Credit Agreement) in excess of
$20,000,000 in the
aggregate (A) the Borrower or any of its Subsidiaries shall (x) default in
any payment (beyond the applicable grace period with respect thereto, if any)
with respect to such Indebtedness, or (y) default (after giving effect to any
applicable grace period) in the observance or performance of any covenant or
agreement relating to such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event or
condition shall occur or condition exist, the effect of which default or other
event or condition is to cause or permit the holder or the holders of such
Indebtedness (or any trustee or agent on behalf of such holders) to cause
(determined without regard to 

     

    
      
        
        

      

      
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    whether
any notice or lapse of time is required) such Indebtedness to become due prior
to its stated maturity; or (B) such Indebtedness shall be declared due and
payable, or required to be prepaid other than by a regularly scheduled required
prepayment prior to the stated maturity thereof; or (C) such Indebtedness
shall mature and remain unpaid.

    


    (g)           Judgments.  Any
judgment, order or decree involving a liability of $20,000,000 or more, or one
or more judgments, orders, or decrees involving a liability of $40,000,000 or
more, in the aggregate, shall be entered against the Borrower or any of its
Subsidiaries and such judgments, orders or decrees shall continue unsatisfied,
undischarged and unstayed for a period ending on the first to occur of (i) the
last day on which such judgment, order or decree becomes final and unappealable
and, where applicable, with the status of a judicial lien or (ii) 60 days; provided that if such
judgment, order or decree provides for periodic payments over time then the
Borrower or such Subsidiary shall have a grace period of 30 days with respect to
each such periodic payment.

    


    (h)           ERISA.  The
occurrence of any of the following events or conditions if any of the same would
have or would be reasonably expected to have a Material Adverse
Effect:  (i) any “accumulated funding deficiency,” as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether or not
waived, shall exist with respect to any Plan, or any lien shall arise on the
assets of the Borrower or any ERISA Affiliate in favor of the PBGC or a Plan;
(ii) an ERISA Event shall occur with respect to a Single Employer Plan which 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; (iii) an ERISA Event
shall occur with respect to a Multiemployer Plan or Multiple Employer Plan which
is, in the reasonable opinion of the Required Lenders, likely to result in (A)
the termination of such Plan for purposes of Title IV of ERISA, or (B) the
Borrower or any ERISA Affiliate incurring any liability in connection with a
withdrawal from, reorganization of (within the meaning of Section 4241 of
ERISA), or insolvency (within the meaning of Section 4245 of ERISA) of such
Plan; or (iv) any prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall
occur which would be reasonably expected to subject the Borrower or any ERISA
Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of ERISA
or Section 4975 of the Code, or under any agreement or other instrument pursuant
to which the Borrower or any ERISA Affiliate has agreed or is required to
indemnify any person against any such liability.

    


    (i)           Change of
Control.  There shall occur a Change of Control.

    


    (j)           First Mortgage
Bonds.  (i) The aggregate outstanding principal amount of the
First Mortgage Bonds shall be less than the Revolving Committed Amount (as such
term is defined in the Third Supplemental Indenture); or (ii) the First Mortgage
Bonds shall cease to be equally and ratably secured under the terms of the FMB
Mortgage by a valid direct first deed of trust lien and security interest upon
all Mortgaged Property, subject only to “Permitted Liens” (as such term is
defined in the FMB Mortgage); or (iii) the Borrower shall deny in writing that
it has any liability or obligation under any First Mortgage Bonds or purport to
revoke, terminate, rescind or redeem any First Mortgage Bonds (other than in
accordance with the terms of the First Mortgage Bonds and the FMB
Mortgage).

    


    9.2           
    Acceleration;
Remedies.

    


    Upon the
occurrence and during the continuation of an Event of Default, the
Administrative Agent may or, upon the request and direction of the Required
Lenders, shall take the following actions without prejudice to the rights of the
Administrative Agent or any Lender to enforce its claims against the Borrower,
except as otherwise specifically provided for herein:

    


    
      
        
        

      

      
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    (a)           Termination of
Commitments.  Declare the Commitments and the obligation of the
L/C Issuer to make L/C Credit Extensions to the Borrower terminated whereupon
the Commitments and the obligation of the L/C Issuer to make L/C Credit
Extensions to the Borrower shall be immediately terminated.

    


    (b)           Acceleration of Revolving
Loans.  Declare the unpaid principal of and any accrued
interest in respect of all Revolving Loans, all L/C Obligations and any and all
other Borrower Obligations of any and every kind owing by the Borrower to the
Administrative Agent or the Lenders under the Credit Documents to be due,
whereupon the same shall be immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.

    


    (c)           Cash
Collateral.  Direct the Borrower to Cash Collateralize (and the
Borrower agrees that upon receipt of such notice, or upon the occurrence of an
Event of Default under Section 9.1(e), it will immediately Cash Collateralize)
L/C Obligations in respect of subsequent drawings under all then outstanding
Letters of Credit of the Borrower in an amount equal to the then outstanding
principal amount of L/C Obligations.

    


    (d)           Enforcement of
Rights.  To the extent permitted by Law enforce any and all
rights and interests created and existing under applicable Law and under the
Credit Documents, and the FMB Mortgage.

    


    Notwithstanding
the foregoing, if an Event of Default specified in Section 9.1(e) shall occur,
then the Commitments and any obligation of the L/C Issuer to make L/C Credit
Extensions to the Borrower shall automatically terminate and all Revolving
Loans, all L/C Obligations, all accrued interest in respect thereof, all accrued
and unpaid fees and other Borrower Obligations owing to the Administrative Agent
and the Lenders by the Borrower hereunder shall immediately become due and
payable without the giving of any notice or other action by the Administrative
Agent or the Lenders, which notice or other action is expressly waived by the
Borrower.

    


    Notwithstanding
the fact that enforcement powers reside primarily with the Administrative Agent,
each Lender has, to the extent permitted by Law, a separate right of payment and
shall be considered a separate “creditor” holding a separate “claim” within the
meaning of Section 101(5) of the Bankruptcy Code or any other insolvency
statute.

    


    9.3         
      Allocation of Payments After
Event of Default.

    


    Notwithstanding
any other provisions of this Credit Agreement, after the occurrence and during
the continuation of an Event of Default, all amounts collected or received by
the Administrative Agent or any Lender from the Borrower or any of its
Subsidiaries on account of amounts outstanding under any of the Credit Documents
shall be paid over or delivered as follows:

    


    FIRST, to
the payment of all reasonable out-of-pocket costs and expenses (including the
reasonable fees and expenses of legal counsel) of the Administrative Agent, the
L/C Issuer or any of the Lenders in connection with enforcing the rights of the
Administrative Agent, the L/C Issuer and the Lenders under the Credit Documents
against the Borrower, ratably among them in proportion to the amounts described
in this clause “FIRST” payable to them;

    


    
      
        
        

      

      
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    SECOND,
to payment of any fees owed to the Administrative Agent, the L/C Issuer or any
Lender by the Borrower, ratably among them in proportion to the amounts
described in this clause “SECOND” payable to them;

    


    THIRD, to
the payment of all accrued interest payable to the Lenders and the L/C Issuer
hereunder by the Borrower, ratably among them in proportion to the amounts
described in this clause “THIRD” payable to them;

    


    FOURTH,
to the payment of the outstanding principal amount of the Revolving Loans and
L/C Obligations of the Borrower, ratably among them in proportion to the amounts
described in this clause “FOURTH” payable to them;

    


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

    


    SIXTH, to
all other Borrower Obligations of the Borrower which shall have become due and
payable under the Credit Documents and not repaid pursuant to clauses “FIRST”
through “FIFTH” above, ratably among the holders of such Borrower Obligations in
proportion to the amounts described in this clause “SIXTH” payable to them;
and

    


    SEVENTH,
the payment of the surplus, if any, to whomever may be lawfully entitled to
receive such surplus.

    


    Amounts
used to Cash Collateralize the aggregate undrawn amount of Letters of Credit
pursuant to clause “FIFTH” above shall be applied to satisfy drawings under such
Letters of Credit as they occur.  If any amount remains on deposit as
cash collateral after all Letters of Credit have either been fully drawn or
expired, such remaining amount shall be applied to the other Borrower
Obligations of the Borrower, if any, in the order set forth above.

    


    


    SECTION
10

    


    AGENCY
PROVISIONS

    


    10.1              Appointment and
Authority.

    


    Each of
the Lenders and the L/C Issuer hereby irrevocably appoints JPMCB to act on its
behalf as the Administrative Agent hereunder and under the other Credit
Documents and the FMB Mortgage and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto.  The provisions of
this Section are solely for the benefit of the Administrative Agent, the
Lenders and the L/C Issuer, and the Borrower shall have no rights as a third
party beneficiary of any of such provisions.

    


    10.2              Rights as a
Lender.

    


    The
Person serving as the Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent
hereunder 

     

    
      
        
        

      

      
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    in its
individual capacity.  Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the
Borrower or any Subsidiary or other Affiliate thereof as if such Person were not
the Administrative Agent hereunder and without any duty to account therefor to
the Lenders.

    


    10.3              Exculpatory
Provisions.

    


    The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Credit Documents and the FMB
Mortgage.  Without limiting the generality of the foregoing, the
Administrative Agent:

    


    (a)           shall
not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;

    


    (b)           shall
not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Credit Documents or the FMB Mortgage that the Administrative Agent
is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Credit Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Credit Document, the FMB Mortgage or
applicable law; and

    


    (c)           shall
not, except as expressly set forth herein and in the other Credit Documents,
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower, its Subsidiaries or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.

    


    The
Administrative Agent shall not be liable for any action taken or not taken by it
(a) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 11.6
and 9.2) or (b)
in the absence of its own gross negligence or willful misconduct.  The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until notice describing such Default is given to the Administrative Agent by
the Borrower, a Lender or the L/C Issuer.

    


    The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Credit Agreement or any other Credit Document or the FMB
Mortgage, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith,
(iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth herein or therein or the occurrence of any
Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Credit Agreement, any other Credit Document, the FMB Mortgage Documents or any
other agreement, instrument or document or (v) the satisfaction of any condition
set forth in Section 4 or Section 5 or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent.

    


    
      
        
        

      

      
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    10.4              Reliance by Administrative
Agent.

    


    The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person.  The Administrative Agent also may rely upon any
statement made to it orally or by telephone and believed by it to have been made
by the proper Person, and shall not incur any liability for relying
thereon.  In determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or the L/C Issuer unless the Administrative Agent shall have received
notice to the contrary from such Lender or the L/C Issuer prior to the making of
such Loan or the issuance of such Letter of Credit.  The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.

    


    10.5              Delegation of
Duties.

    


    The
Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Credit Document or under the FMB
Mortgage by or through any one or more sub-agents appointed by the
Administrative Agent.  The Administrative Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers by or
through their respective Agent-Related Parties.  The exculpatory
provisions of this Section shall apply to any such sub-agent and to the
Agent-Related Parties of the Administrative Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as
Administrative Agent.

    


    10.6              Resignation of
Administrative Agent.

    


    The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the L/C Issuer and the Borrower.  Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States.  If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the Lenders
and the L/C Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (a) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Credit Documents  and the
FMB Mortgage and (b) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above
in this Section.  Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring (or
retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other
Credit Documents or under the FMB Mortgage, as applicable (if not already
discharged therefrom as provided above in this Section).  The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed 

     

    
      
        
        

      

      
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    between
the Borrower and such successor.  After the retiring Administrative
Agent’s resignation hereunder and under the other Credit Documents and the FMB
Mortgage, as applicable, the provisions of this Section and Section 11.5
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Agent Related Parties in respect of any
actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.

    


    Any
resignation by JPMCB as Administrative Agent pursuant to this Section shall
also constitute its resignation as the L/C Issuer.  Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, (i)
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer, (ii) the retiring L/C
Issuer shall be discharged from all of its duties and obligations hereunder or
under the other Credit Documents, and (iii) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit.

    


    10.7              Non-Reliance on
Administrative Agent and Other Lenders.

    


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

    


    10.8              No Other Duties,
Etc.

    


    Anything
herein to the contrary notwithstanding, none of the bookrunners, arrangers or
agents listed on the cover page hereof shall have any powers, duties or
responsibilities under this Credit Agreement or any of the other Credit
Documents or the FMB Mortgage, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the L/C Issuer hereunder.

    


    10.9              Administrative Agent
May File Proofs of Claim.

    


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

    


    (a)           to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Revolving Loans, L/C Obligations and all other
Borrower Obligations that are owing and unpaid and to file such other documents
as may be necessary or advisable in order to have the claims of the Lenders, the
L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.2(i) and (k), 3.4 and 11.5) allowed in such judicial
proceeding; and

    


    
      
        
        

      

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

    


    and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender and the L/C Issuer to make such payments to the Administrative Agent and,
in the event that the Administrative Agent shall consent to the making of such
payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 3.4
and 11.5.

    


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

    


    


    SECTION
11

    


    MISCELLANEOUS

    


    11.1              Notices; Effectiveness;
Electronic Communication.

    


    (a)           Notices
Generally.  Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopier as follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:

    


    (i)           if
to the Borrower, the Administrative Agent or the L/C Issuer, to the address,
telecopier number, electronic mail address or telephone number specified for
such Person on Schedule 11.1;
and

    


    (ii)           if
to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.

    


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

    


    (b)           Electronic
Communications.  Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to
Section 2
if such Lender or the L/C Issuer, as applicable, has notified the Administrative
Agent that it is incapable of receiving notices under such Section by
electronic communication.  The Administrative Agent or the


     

    
      
        
        

      

      
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    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.

    


    Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that if such
notice or other communication is not sent during the normal business hours of
the recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at
its e-mail address as described in the foregoing clause (i) of notification
that such notice or communication is available and identifying the website
address therefor.

    


    (c)           Borrower Materials/The
Platform.  The Borrower hereby acknowledges that (i) the
Administrative Agent and/or the Arrangers will make available to the Lenders and
the L/C Issuer materials and/or information provided by or on behalf of the
Borrower hereunder (collectively, “Borrower Materials”)
by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”). THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES
(AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In
no event shall the Administrative Agent or any of its Agent-Related Parties
(collectively, the “Agent Parties”) have
any liability to the Borrower, any Lender, the L/C Issuer or any other Person
for losses, claims, damages, liabilities or expenses of any kind (whether in
tort, contract or otherwise) arising out of the Borrower’s or the Administrative
Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined
by a court of competent jurisdiction by a final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of such Agent
Party; provided, however, that in no
event shall any Agent Party have any liability to the Borrower, any Lender, the
L/C Issuer or any other Person for indirect, special, incidental, consequential
or punitive damages (as opposed to direct or actual damages).

    


    (d)           Change of Address,
Etc.  The Borrower, the Administrative Agent and the L/C Issuer
may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto.  Each
other Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the Borrower, the Administrative
Agent and the L/C Issuer.  In addition, each Lender agrees to notify
the Administrative Agent from time to time to ensure that the Administrative
Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such
Lender.

    


    (e)           Reliance by Administrative
Agent, L/C Issuer and Lenders.  The Administrative Agent, the
L/C Issuer and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Notices of Borrowing) purportedly given by or on behalf of
the Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any 

     

    
      
        
        

      

      
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    confirmation
thereof.  The Borrower shall indemnify the Administrative Agent, the
L/C Issuer, each Lender and the Agent-Related Parties of each of them from all
losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of the
Borrower.  All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.

    


    11.2               Right of
Set-Off.

    


    In
addition to any rights now or hereafter granted under applicable Law or
otherwise, and not by way of limitation of any such rights, upon the occurrence
of an Event of Default and the commencement of remedies described in Section
9.2, each Lender is authorized at any time and from time to time, without
presentment, demand, protest or other notice of any kind (all of which rights
being hereby expressly waived), to set-off and to appropriate and apply any and
all deposits (general or special) and any other indebtedness at any time held or
owing by such Lender (including, without limitation, branches, agencies or
Affiliates of such Lender wherever located) to or for the credit or the account
of the Borrower against obligations and liabilities of the Borrower to the
Lenders hereunder, under the Notes,  the First Mortgage Bonds, the
other Credit Documents, the FMB Mortgage or otherwise, irrespective of whether
the Administrative Agent or the Lenders shall have made any demand hereunder and
although such obligations, liabilities or claims, or any of them, may be
contingent or unmatured, and any such set-off shall be deemed to have been made
immediately upon the occurrence of an Event of Default even though such charge
is made or entered on the books of such Lender subsequent
thereto.  The Borrower hereby agrees that any Person purchasing a
participation in the Revolving Loans and Commitments hereunder pursuant to
Sections 3.8 or 11.3(d) may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender
hereunder.

    


    11.3               Successors
and Assigns.

    


    (a)           Successors and Assigns
Generally.  The provisions of this Credit Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of the Administrative Agent and each Lender (except as
contemplated by Section 8.2), and no Lender may assign or otherwise transfer any
of its rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of subsection (b) of this Section, (ii) by
way of participation in accordance with the provisions of subsection (d) of
this Section, (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC in
accordance with the provisions of subsection (h) of this Section (and any
other attempted assignment or transfer by any party hereto shall be null and
void).  Nothing in this Credit Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Agent-Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Credit Agreement.

    


    (b)           Assignments by
Lenders.  Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Credit Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations) at the time owing to it); provided
that

    


    (i)           except
in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, 

     

    
      
        
        

      

      
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    the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the 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 or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000 unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has
been met;

    


    (ii)           each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender’s rights and obligations under this Credit Agreement with
respect to the Loans or the Commitment assigned;

    


    (iii)                      any
assignment of a Commitment must be approved by the Administrative Agent, and L/C
Issuer unless the Person that is the proposed assignee is itself a Lender
(whether or not the proposed assignee would otherwise qualify as an Eligible
Assignee); and

    


    (iv)                      the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Assumption, together with a processing and recordation fee in
the amount, if any, required as set forth in Schedule 11.3,
and the Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.

    


    Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Credit Agreement and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender
under this Credit 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 Credit Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Credit Agreement, such Lender shall cease to be a party
hereto) but shall continue to be entitled to the benefits of Sections 3.9,
3.12, 3.13, 3.14, and 11.5(b) with respect
to facts and circumstances occurring prior to the effective date of such
assignment.  Upon request, the Borrower (at its expense) shall execute
and deliver a Note to the assignee Lender.  Any assignment or transfer
by a Lender of rights or obligations under this Credit Agreement that does not
comply with this subsection shall be treated for purposes of this Credit
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with subsection (d) of this Section.

    


    (c)           Register.  The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at the Administrative Agent’s Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”).  The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Credit Agreement, notwithstanding notice to the
contrary.  The Register shall be available for inspection by the
Borrower and the L/C Issuer at any reasonable time and from time to time upon
reasonable prior notice.  In addition, at any time that a request for
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    change to
the Credit Documents is pending, any Lender may request and receive from the
Administrative Agent a copy of the Register.

    


    (d)           Participations.  Any
Lender may at any time, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all
or a portion of such Lender’s rights and/or obligations under this Credit
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations) owing to it); provided that
(i) such Lender’s obligations under this Credit Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Credit Agreement.

    


    Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Credit Agreement and to approve any amendment, modification or waiver of
any  provision of this Credit Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 11.6
that affects such Participant.  Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.9,
3.12, 3.13 and 3.14 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section.  To the extent permitted by Law,
each Participant also shall be entitled to the benefits of Section 3.7 as though it were a
Lender, provided such
Participant agrees to be subject to Section 3.8 as
though it were a Lender.

    


    (e)           Limitations upon Participant
Rights.  A Participant shall not be entitled to receive any
greater payment under Section 3.9, 3.12, 3.13, or 3.14 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent.  A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.13
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.13(f)
as though it were a Lender.

    


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

    


    (g)           Electronic Execution of
Assignments.  The words “execution,” “signed,” “signature,” and
words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system, as
the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar
state laws based on the Uniform Electronic Transactions Act.

    


    (h)           Special Purpose Funding
Vehicles.  Notwithstanding anything to the contrary contained
herein, any Lender (a “Granting Lender”) may
grant to a special purpose funding vehicle identified as such in writing from
time to time by the Granting Lender to the Administrative Agent and the Borrower
(an “SPC”) the
option to provide all or any part of any Loan that such Granting Lender would
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    be
obligated to make pursuant to this Credit Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPC to fund any Loan, and
(ii) if an SPC elects not to exercise such option or otherwise fails to make all
or any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof.  Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such option
shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrower under this Credit Agreement (including its
obligations under Section 3.9, 3.12, 3.13 and 3.14), (ii) no SPC shall be
liable for any indemnity or similar payment obligation under this Credit
Agreement for which a Lender would be liable, and (iii) the Granting Lender
shall for all purposes, including the approval of any amendment, waiver or other
modification of any provision of any Credit Document, remain the lender of
record hereunder.  The making of a Committed Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender.  In furtherance of
the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Credit Agreement) that, prior to the date that is one
year and one day after the payment in full of all outstanding commercial paper
or other senior debt of any SPC, it will not institute against, or join any
other Person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency, or liquidation proceeding under the laws of the United
States or any State thereof.  Notwithstanding anything to the contrary
contained herein, any SPC may (A) with notice to, but without prior consent of
the Borrower and the Administrative Agent and with the payment of a processing
fee in the amount of $2,500, assign all or any portion of its right to receive
payment with respect to any Loan to the Granting Lender and (B) disclose on a
confidential basis any non-public information relating to its funding of Loans
to any rating agency, commercial paper dealer or provider of any surety or
guarantee or credit or liquidity enhancement to such SPC.

    


    11.4               No Waiver; Remedies
Cumulative.

    


    No
failure or delay on the part of the Administrative Agent or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower and the Administrative
Agent or any Lender shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder.  The
rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Lender would otherwise
have.  No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Administrative
Agent or the Lenders to any other or further action in any circumstances without
notice or demand.

    


    11.5               Attorney Costs, Expenses,
Taxes and Indemnification by Borrower.

    


    (a)           The
Borrower agrees (i) to pay or reimburse the Administrative Agent and the
Arrangers for all costs and expenses incurred in connection with the
development, preparation, negotiation and execution of this Credit Agreement and
the other Credit Documents and the FMB Mortgage and any amendment, waiver,
consent or other modification of the provisions hereof and thereof (whether or
not the transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all reasonable fees and expenses of legal counsel, and (ii)
to pay or reimburse the Administrative Agent and each Lender for all costs and
expenses incurred in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Credit Agreement or the other
Credit Documents or the FMB Mortgage (including all such costs and expenses
incurred during any “workout” or restructuring in respect of the Borrower
Obligations and during any legal proceeding, including any proceeding under any
Debtor Relief Law), including all reasonable fees and expenses of legal
counsel.  The foregoing costs and expenses 

     

    
      
        
        

      

      
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    shall
include all search, filing, recording, and appraisal charges and fees and taxes
related thereto, and other out-of-pocket expenses incurred by the Administrative
Agent and the Arrangers and the cost of independent public accountants and other
outside experts retained by the Administrative Agent, the Arrangers or any
Lender.  Other than costs and expenses payable in connection with the
closing of the transactions contemplated by this Credit Agreement pursuant to
this Section 11.5(a) (which shall be payable on the Closing Date unless
otherwise agreed by the Administrative Agent and the Arrangers), all amounts due
under this Section 11.5 shall be payable within ten Business Days after demand
therefor.  The agreements in this Section shall survive the
termination of the Commitments and repayment of all other Borrower
Obligations.

    


    (b)           Whether
or not the transactions contemplated hereby are consummated, the Borrower shall
indemnify and hold harmless each Agent-Related Party, each Lender and their
respective Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the “Indemnitees”) from
and against any and all liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses and disbursements
(including the reasonable fees and expenses of legal counsel) of any kind or
nature whatsoever which may at any time be imposed on, incurred by or asserted
against any such Indemnitee in any way relating to or arising out of or in
connection with (i) the execution, delivery, enforcement, performance or
administration of any Credit Document, the FMB Mortgage or any other agreement,
letter or instrument delivered in connection with the transactions contemplated
thereby or the consummation of the transactions contemplated thereby, (ii) any
Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the L/C Issuer to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), or (iii)
any actual or alleged presence or release of Hazardous Substances on or from any
property currently or formerly owned or operated by the Borrower, any Subsidiary
of the Borrower, or any Environmental Claim related in any way to the Borrower
or any Subsidiary of the Borrower, (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including any investigation
of, preparation for, or defense of any pending or threatened claim,
investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto or (v) any civil penalty or fine assessed by the
Office of Foreign Assets Control (the “OFAC”) against, and
all reasonable costs and expenses (including counsel fees and disbursements)
incurred in connection with defense thereof, by the Administrative Agent or any
Lender as a result conduct of the Borrower that violates a sanction enforced by
OFAC (all the foregoing, collectively, the “Indemnified
Liabilities”), in all cases, whether or not caused by or arising, in
whole or in part, out of the negligence of the Indemnitee; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee.  No
Indemnitee shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Credit Agreement, nor
shall any Indemnitee have any liability for any indirect or consequential
damages relating to this Credit Agreement or any other Credit Document or the
FMB Mortgage or arising out of its activities in connection herewith or
therewith (whether before or after the Closing Date).

    


    (c)           To
the extent that the Borrower for any reason fails to indefeasibly pay any amount
required under subsection (a) or (b) of this Section to be paid
by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or
any Agent-Related Party of any of the 

     

    
      
        
        

      

      
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    foregoing,
each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Agent-Related Party, as the case may be, such
Lender’s Pro Rata
Share (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity
as such, or against any Agent-Related Party of any of the foregoing acting for
the Administrative Agent (or any such sub-agent) or the L/C Issuer in connection
with such capacity.  The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 3.2(d).

    


    All
amounts due under this Section 11.5 shall be payable within ten Business Days
after demand therefor.  The agreements in this Section shall survive
the resignation of the Administrative Agent, the replacement of any Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of
all the other Borrower Obligations.

    


    11.6               Amendments,
Etc.

    


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

    


    (a)           waive
any condition set forth in Section 4.1
without the written consent of each Lender;

    


    (b)           extend
or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 9.2)
without the written consent of such Lender;

    


    (c)           postpone
any date fixed by this Credit Agreement or any other Credit Document for any
payment (excluding mandatory prepayments) of principal, interest, fees or other
amounts due to the Lenders (or any of them) or any scheduled or mandatory
reduction of the Revolving Committed Amount hereunder or under any other Credit
Document without the written consent of each Lender directly affected
thereby;

    


    (d)           reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 11.6)
any fees or other amounts payable hereunder or under any other Credit Document
without the written consent of each Lender directly affected thereby; provided, however, that only
the consent of the Required Lenders shall be necessary  to amend the
definition of “Default Rate” or to waive any obligation of to pay interest or
Letter of Credit Fees at the Default Rate;

    


    (e)           change
Section 3.8 or
Section 9.3 in a
manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender;

    


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

    


    
      
        
        

      

      
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    (g)           release
the Borrower from its obligations or consent to the assignment by the Borrower
of any of its rights and obligations under (or in respect of) the Credit
Documents or the FMB Mortgage without the written consent of each Lender;
or

    


    (h)           authorize
the Administrative Agent to vote in favor of the release of all or substantially
all of the collateral securing the First Mortgage Bonds;

    


    and,
provided further, that (i) no
amendment, waiver or consent shall, unless in writing and signed by the L/C
Issuer in addition to the Lenders required above, affect the rights or duties of
the L/C Issuer under this Credit Agreement or any other agreement relating to
any Letter of Credit issued or to be issued by it (including, without
limitation, under Section 3.16); (ii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above, affect the rights or duties of the Administrative Agent
under this Credit Agreement or any other Credit Document (including, without
limitation, under Section 3.16) or the FMB Mortgage; (iii) Section 11.3(h)
may not be amended, waived or otherwise modified without the consent of each
Granting Lender all or any part of whose Loans are being funded by an SPC at the
time of such amendment, waiver or other modification; and (iv) a Fee Letter may
be amended, or rights or privileges thereunder waived, in a writing executed
only by the parties thereto.  Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without the consent of such
Lender.

    


    11.7               Counterparts.

    


    This
Credit Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument.

    


    11.8               Headings.

    


    The
headings of the sections and subsections hereof are provided for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Credit Agreement.

    


    11.9               Survival of Indemnification
and Representations and Warranties.

    


    (a)           Survival of
Indemnification.  All indemnities set forth herein shall
survive the execution and delivery of this Credit Agreement, the making of any
Credit Extension and the repayment of the Revolving Loans and other Borrower
Obligations and the termination of the Commitments hereunder.

    


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

    


    
      
        
        

      

      
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    11.10            Governing Law; Venue;
Service.

    


    (a)           THIS
CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS, (OTHER THAN THE THIRD
SUPPLEMENTAL INDENTURE AND THE FIRST MORTGAGE BONDS) AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW
RULES).  Any legal action or proceeding with respect to this Credit
Agreement or any other Credit Document  (other than the Third
Supplemental Indenture and the First Mortgage Bonds) may be brought in the
courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Credit Agreement,
the Borrower hereby irrevocably accepts for itself and in respect of its
Property, generally and unconditionally, the jurisdiction of such
courts.

    


    (b)           The
Borrower irrevocably consents to the service of process in any action or
proceeding with respect to this Credit Agreement or any other Credit Document by
the mailing of copies thereof by registered or certified mail, postage prepaid,
to it at the address for notices pursuant to Section 11.1, such service to
become effective ten days after such mailing.  Nothing herein shall
affect the right of a Lender to serve process in any other manner permitted by
Law.

    


    11.11            Waiver of Jury Trial; Waiver
of Consequential Damages.

    


    EACH OF
THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.  Each of the parties to
this Credit Agreement agrees not to assert any claim against any other party
hereto, Administrative Agent, any Lender, any of their Affiliates, or any of
their respective directors, officers, employees, attorneys or agents, on any
theory of liability, for special, indirect, consequential or punitive damages
arising out of or otherwise relating to any of the transactions contemplated
herein and in the other Credit Documents and in the FMB Mortgage.

    


    11.12            Severability.

    


    If any
provision of any of the Credit Documents is determined to be illegal, invalid or
unenforceable, such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be construed without
giving effect to the illegal, invalid or unenforceable provisions.

    


    11.13            Further
Assurances.

    


    The
Borrower agrees, upon the request of the Administrative Agent, to promptly take
such actions, as reasonably requested, as is necessary to carry out the intent
of this Credit Agreement and the other Credit Documents.

    


    11.14            Confidentiality.

    


    Each of
the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom such disclosure is
made will be 

     

    
      
        
        

      

      
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    informed
of the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners),
(c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto,
(e) in connection with the exercise of any remedies hereunder or under any
other Credit Document or any action or proceeding relating to this Credit
Agreement or any other Credit Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially
the same as those of this Section, to (i) any assignee of or Participant
in, or any prospective assignee of or Participant in, any of its rights or
obligations under this Credit Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the consent of the Borrower or
(h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available
to the Administrative Agent, any Lender, the L/C Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than the
Borrower.

    


    For
purposes of this Section, “Information” means
all information received from the Borrower or any Subsidiary or any of their
respective businesses, other than any such information that is available to the
Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis
prior to disclosure by the Borrower or any Subsidiary, provided that, in the
case of information received from the Borrower or any Subsidiary after the date
hereof, such information is clearly identified at the time of delivery as
confidential.  Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.

    


    11.15            Entirety.

    


    This
Credit Agreement together with the other Credit Documents and the Fee Letters
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.

    


    11.16            Binding Effect; Continuing
Agreement.

    


    (a)           This
Credit Agreement shall become effective at such time when all of the conditions
set forth in Section 4.1 have been satisfied or waived by the Lenders and it
shall have been executed by the Borrower and the Administrative Agent, and the
Administrative Agent shall have received copies hereof (telefaxed or otherwise)
which, when taken together, bear the signatures of each Lender, and thereafter
this Credit Agreement shall be binding upon and inure to the benefit of the
Borrower, the Administrative Agent and each Lender and their respective
successors and assigns.

    


    (b)           This
Credit Agreement shall be a continuing agreement and shall remain in full force
and effect until all Revolving Loans, interest, fees and other Borrower
Obligations have been paid in full and all Letters of Credit and Commitments
have been terminated.  Upon termination, the Borrower shall have no
further obligations (other than the indemnification provisions and other
provisions that by their terms survive) under the Credit Documents; provided that should
any payment, in whole or in part, of the Borrower Obligations be rescinded or
otherwise required to be restored or returned by the Administrative Agent or any
Lender, whether as a result of any proceedings in bankruptcy or reorganization
or otherwise, then the Credit Documents shall automatically be reinstated and
all amounts required to be restored or returned and all costs and 

     

    
      
        
        

      

      
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    expenses
incurred by the Administrative Agent or any Lender in connection therewith shall
be deemed included as part of the Borrower Obligations.

    


    11.17            Reserved.

    


    11.18            USA Patriot Act
Notice.

    


    Each
Lender and the Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Act”), it
is required to obtain, verify and record information that identifies the
Borrower, which information includes the names and addresses of the Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act.

    


    11.19            Acknowledgment.

    


    Section 7
and Section 8 of this Credit Agreement contain affirmative and negative
covenants applicable to the Borrower.  Each of the parties to this
Credit Agreement acknowledges and agrees that any such covenants that require
the Borrower to cause any of its Subsidiaries to take or to refrain from taking
specified actions will be enforceable unless prohibited by applicable law or
regulatory requirement.

    


    11.20            Replacement of
Lenders.

    


    If (a)
any Lender requests compensation under Section 3.12, (b) the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.13, or (c) a
Lender (a “Non-Consenting Lender”) does not consent to a proposed change,
waiver, discharge or termination with respect to any Credit Document that has
been approved by the Required Lenders as provided in Section 11.6 but requires
unanimous consent of all Lenders or all Lenders directly affected thereby (as
applicable) or (d) any Lender is a Defaulting Lender, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 11.3), all of its interests, rights and obligations under
this Credit Agreement and the related Credit Documents to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided that:

    


    (i)           the
Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.3(b);

    


    (ii)           such
Lender shall have received payment of an amount equal to the outstanding
principal of its Revolving Loans and L/C Obligations, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Credit Documents (including any amounts under Section 3.14) from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts);

    


    (iii)           in
the case of any such assignment resulting from a claim for compensation under
Section 3.12 or payments required to be made pursuant to Section 3.13, such
assignment will result in a reduction in such compensation or payments
thereafter; and

    


    (iv)           such
assignment does not conflict with applicable Laws; and

    


    
      
        
        

      

      
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    (v)           in
the case of any such assignment resulting from a Non-Consenting Lender’s failure
to consent to a proposed change, waiver, discharge or termination with respect
to any Credit Document, the applicable replacement bank, financial institution
or Fund consents to the proposed change, waiver, discharge or termination;
provided that the failure by such Non-Consenting Lender to execute and deliver
an Assignment and Assumption shall not impair the validity of the removal of
such Non-Consenting Lender and the mandatory assignment of such Non-Consenting
Lender’s Commitments and outstanding Revolving Loans and participations in L/C
Obligations pursuant to this Section shall nevertheless be effective without the
execution by such Non-Consenting Lender of an Assignment and
Assumption.

     

    


    A Lender
shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to
apply.

    


    


    [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

    


    
      
        
        

      

      
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    Signature
Page to Credit Agreement 

    TEXAS-NEW
MEXICO POWER COMPANY 

     

    
 

    Each of
the parties hereto has caused a counterpart of this Credit Agreement to be duly
executed and delivered as of the date first above written.

    


    BORROWER:

    


    TEXAS-NEW
MEXICO POWER COMPANY

    a Texas
corporation

    


    


    By:           /s/ Terry R.
Horn                                                                

    Name:      Terry R.
Horn                                                                

    Title:        Vice President and
Treasurer

    


    


    


    



    
      
        
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      Signature
Page to Credit Agreement 

      TEXAS-NEW
MEXICO POWER COMPANY 

    

    
 

    
      	
               
      

                LENDERS:

              

            	
               

            


    

    


    JPMORGAN CHASE BANK,
N.A.,

    individually
in its capacity as a Lender and in

    its
capacity as Administrative Agent and L/C Issuer

    


    


    By:           /s/ Jennifer
Fitzgerald                                                                

    Name:      Jennifer
Fitzgerald                                                      

    Title:        Associate                                           

    


    


    


    UNION BANK, N.A.,

    individually
in its capacity as a Lender and in its capacity as Syndication
Agent

    


    


    By:          /s/ Robert J.
Cole                                                      

    Name:     Robert J.
Cole                                                                

    Title:       Vice
President                                                      

    


    


    


    KEYBANK NATIONAL
ASSOCIATION,

    individually
in its capacity as a Lender and as Documentation Agent

    


    


    By:           /s/ Keven D.
Smith                                                                

    Name:     
Keven D.
Smith                                                                

    Title:        Senior Vice
President                                                                

    


    


    UNITED WESTERN
BANK,

    as a
Lender

    


    


    By:           /s/ Michael
Saun                                                                

    Name:      Michael
Saun                                                                

    Title:        Senior Vice
President                                                                

    


    SUNTRUST BANK,

    as a
Lender

    


    


    By:           /s/ Andrew
Johnson                                                                

    Name:     Andrew
Johnson                                                      

    Title:       Director                                           

    


    


    


    
      
        
        

      

      
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      Signature
Page to Credit Agreement 

      TEXAS-NEW
MEXICO POWER COMPANY 

       

       

       

       

    

     

    WELLS FARGO BANK,
N.A.,

    as a
Lender

    


    


    By:           /s/ Yann
Blindert                                                                

    Name:      Yann
Blindert                                                      

    Title:       
Assistant Vice
President

    


     


    
      
        
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