exv10w2



 









EXHIBIT 10.2




EXECUTION COPY




AMENDED AND RESTATED

REVOLVING CREDIT AGREEMENT




among




NISOURCE FINANCE CORP.,

as Borrower,




NISOURCE INC.,

as Guarantor,




THE LENDERS PARTY HERETO,




CREDIT SUISSE

as Syndication Agent,




JPMORGAN CHASE BANK, N.A.,

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

and

CITICORP USA, INC.,

as Co-Documentation Agents




BARCLAYS BANK PLC,

as Administrative Agent and LC Bank,




 






BARCLAYS CAPITAL

and

CREDIT SUISSE

Lead Arrangers




BARCLAYS CAPITAL

Sole Book Runner



 





Dated as of July 7, 2006










 



 


TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	16	 
	SECTION 1.03. Terms Generally
	 	 	16	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	16	 
	 
	 	 	 	 
	ARTICLE II THE CREDITS
	 	 	16	 
	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	16	 
	SECTION 2.02. Revolving Loans and Revolving Borrowings; Requests for Borrowings
	 	 	17	 
	SECTION 2.03. Swingline Loans
	 	 	18	 
	SECTION 2.04. Letters of Credit
	 	 	20	 
	SECTION 2.05. Funding of Borrowings
	 	 	23	 
	SECTION 2.06. Interest Elections
	 	 	24	 
	SECTION 2.07. Mandatory Termination or Reduction of Commitments
	 	 	25	 
	SECTION 2.08. Mandatory Prepayments
	 	 	25	 
	SECTION 2.09. Optional Reduction of Commitments
	 	 	26	 
	SECTION 2.10. Repayment of Loans; Evidence of Debt
	 	 	26	 
	SECTION 2.11. Optional Prepayment of Loans
	 	 	27	 
	SECTION 2.12. Fees
	 	 	28	 
	SECTION 2.13. Interest
	 	 	29	 
	SECTION 2.14. Alternate Rate of Interest
	 	 	30	 
	SECTION 2.15. Increased Costs
	 	 	30	 
	SECTION 2.16. Break Funding Payments
	 	 	31	 
	SECTION 2.17. Taxes
	 	 	32	 
	SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-Offs
	 	 	33	 
	SECTION 2.19. Mitigation Obligations; Replacement of Lenders
	 	 	34	 
	 
	 	 	 	 
	ARTICLE III CONDITIONS
	 	 	35	 
	 
	 	 	 	 
	SECTION 3.01. Conditions Precedent to the Effectiveness of this Agreement
	 	 	35	 
	SECTION 3.02. Conditions Precedent to Each Extension of Credit
	 	 	36	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	37	 
	 
	 	 	 	 
	ARTICLE V AFFIRMATIVE COVENANTS
	 	 	40	 
	 
	 	 	 	 
	ARTICLE VI NEGATIVE COVENANTS
	 	 	43	 
	 
	 	 	 	 
	ARTICLE VII FINANCIAL COVENANT
	 	 	47	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT
	 	 	47	 
	 
	 	 	 	 
	ARTICLE IX THE ADMINISTRATIVE AGENT
	 	 	51	 
	 
	 	 	 	 
	ARTICLE X GUARANTY
	 	 	53	 
	SECTION 10.01. The Guaranty
	 	 	53	 
	SECTION 10.02. Waivers
	 	 	54	 
	 
	 	 	 	 
	ARTICLE XI MISCELLANEOUS
	 	 	55	 







i






 



 


	 	 	 	 	 
	 	 	Page
	SECTION 11.01. Notices
	 	 	55	 
	SECTION 11.02. Waivers; Amendments
	 	 	56	 
	SECTION 11.03. Expenses; Indemnity; Damage Waiver
	 	 	57	 
	SECTION 11.04. Successors and Assigns
	 	 	59	 
	SECTION 11.05. Survival
	 	 	62	 
	SECTION 11.06. Counterparts; Integration; Effectiveness
	 	 	62	 
	SECTION 11.07. Severability
	 	 	62	 
	SECTION 11.08. Right of Setoff
	 	 	62	 
	SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	63	 
	SECTION 11.10. WAIVER OF JURY TRIAL
	 	 	64	 
	SECTION 11.11. Headings
	 	 	64	 
	SECTION 11.12. Confidentiality
	 	 	64	 
	SECTION 11.13. USA PATRIOT ACT
	 	 	64	 












 



 


ANNEXES, EXHIBITS AND SCHEDULES




	 	 	 
	ANNEX A

	 	Pricing Grid
	EXHIBIT A

	 	Form of Assignment and Acceptance
	EXHIBIT B

	 	Form of Opinion of Schiff Hardin LLP
	SCHEDULE 2.01

	 	Lenders and Commitments
	SCHEDULE 2.04

	 	Transitional Letters of Credit
	SCHEDULE 6.01(e)

	 	Existing Agreements












 



 


     AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of July 7, 2006 (this “Agreement”),
among NISOURCE FINANCE CORP., an Indiana corporation, as Borrower (the “Borrower”), NISOURCE INC.,
a Delaware corporation (“NiSource”), as Guarantor (the “Guarantor”), the Lead Arrangers and other
Lenders from time to time party hereto, the Co-Documentation Agents party hereto, CREDIT SUISSE, as
Syndication Agent and BARCLAYS BANK PLC, as issuer of any Letters of Credit provided for hereunder
(in such capacity, the “LC Bank”) and as administrative agent for the Lenders hereunder (in such
capacity, the “Administrative Agent”).



WITNESSETH:




     WHEREAS, the Borrower, the Guarantor, the LC Bank, the Administrative Agent and certain
Lenders parties hereto as of the date hereof are parties to that certain Revolving Credit Agreement
dated as of March 11, 2005 (as amended, supplemented or otherwise modified prior to the date
hereof, the “Existing Credit Agreement”), and the Borrower has requested that the Guarantor, the
Lenders, the LC Bank and the Administrative Agent agree to enter into this Agreement to amend and
restate the Existing Credit Agreement, and such Persons have agreed to enter into this Agreement on
the terms and conditions stated herein. Further, each Departing Lender has agreed to execute and
deliver a Departing Lender Signature Page, pursuant to which such Departing Lender shall cease to
be a party to the Existing Credit Agreement, such Departing Lender’s “Commitment” under (and as
defined in) the Existing Credit Agreement shall be terminated and such Departing Lender shall not
be a Lender hereunder (provided that the indemnities and other obligations of the Borrower
contained in Section 11.03 of the Existing Credit Agreement (and the Guarantor’s obligations in
respect thereof pursuant to Article X of the Existing Credit Agreement) in favor of such Departing
Lender shall survive the termination of such Departing Lender’s “Commitment” under the Existing
Credit Agreement).



     NOW, THEREFORE, the parties hereto hereby agree that the Existing Credit Agreement is hereby
amended and restated in its entirety as of the date hereof as follows:



ARTICLE I

DEFINITIONS




     SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings
specified below:




     “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are bearing interest at a rate determined by reference
to the Alternate Base Rate.




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




     “Affiliate” means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.









 



 


 2





     “Aggregate Commitments” means the aggregate amount of the Commitments of all Lenders,
as in effect from time to time. As of the date hereof, the Aggregate Commitments equal
$1,500,000,000.




     “Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective from and including the effective
date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.




     “Applicable Percentage” means, with respect to any Lender, the percentage of the
Aggregate Commitments represented by such Lender’s Commitment. If the Commitments have
terminated or expired, the Applicable Percentages shall be determined based upon the
Commitments most recently in effect, giving effect to any assignments.




     “Applicable Rate” means, for any day, with respect to any ABR Loan or Eurodollar
Revolving Loan, or with respect to the Facility Fees, the LC Risk Participation Fee and the
Utilization Margin payable hereunder, as the case may be, the applicable rate per annum
determined pursuant to the Pricing Grid.




     “Arrangers” means each of Barclays and Credit Suisse.




     “Assignment and Acceptance” means an assignment and acceptance entered into by a Lender
and an assignee (with the consent of any party whose consent is required by Section 11.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.




     “Availability Period” means the period from and including the Effective Date to but
excluding the Termination Date.




     “Barclays” means Barclays Bank PLC, an English banking corporation.




     “Beneficiary” has the meaning set forth in Section 10.01.




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




     “Borrower” means NiSource Finance Corp., Inc. an Indiana corporation.




     “Borrowing” means Loans of the same Type and Class, made, converted or continued on the
same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect.




     “Borrowing Request” means a request by the Borrower for a Revolving Borrowing in
accordance with Section 2.02.









 



3



     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in dollar deposits in the
London interbank market.




     “Capital Lease” means, as to any Person, any lease of real or personal property in
respect of which the obligations of the lessee are required, in accordance with GAAP, to be
capitalized on the balance sheet of such Person.




     “Capital Stock” means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person other than a corporation (including, but not limited to, all
common stock and preferred stock and partnership, membership and joint venture interests in
a Person), and any and all warrants, rights or options to purchase any of the foregoing.




     “Cash Account” has the meaning set forth in Section 8.01.




     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended by the Superfund Amendments and Reauthorization Act, 42, U.S.C. Section
9601 et seq., as amended.




     “Change of Control” means (a) any “person” or “group” within the meaning of Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended, shall become the
“beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of more than 50% of the then outstanding voting Capital Stock of the Guarantor, (b)
Continuing Directors shall cease to constitute at least a majority of the directors
constituting the Board of Directors of the Guarantor, (c) a consolidation or merger of the
Guarantor shall occur after which the holders of the outstanding voting Capital Stock of the
Guarantor immediately prior thereto hold less than 50% of the outstanding voting Capital
Stock of the surviving entity; (d) more than 50% of the outstanding voting Capital Stock of
the Guarantor shall be transferred to an entity of which the Guarantor owns less than 50% of
the outstanding voting Capital Stock; (e) there shall occur a sale of all or substantially
all of the assets of the Guarantor; or (f) the Borrower, NIPSCO or Columbia shall cease to
be a Wholly-Owned Subsidiary of the Guarantor (except to the extent otherwise permitted
under clauses (i), (ii), (iii) or (iv) of Section 6.01(b)).




     “Change in Law” means (a) the adoption of any law, rule or regulation after the date of
this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender (or, for purposes of Section 2.15(b), by any lending office of such
Lender or by such Lender’s holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or issued after
the date of this Agreement.









 



4



     “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan
is, or the Loans comprising such Borrowing are, Revolving Loans or Swingline Loans.




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




     “Columbia” means Columbia Energy Group, a Delaware corporation.




     “Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans hereunder and to participate in Letters of Credit issued hereunder as set
forth herein, as such commitment may be (a) reduced from time to time or terminated pursuant
to Section 2.07 or Section 2.09 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 11.04. The initial amount of each
Lender’s Commitment is (x) the amount set forth on Schedule 2.01 opposite such Lender’s
name; or (y) the amount set forth in the Assignment and Acceptance pursuant to which such
Lender shall have assumed its Commitment, as applicable.




     “Consolidated Capitalization” means the sum of (a) Consolidated Debt, (b) consolidated
common equity of the Guarantor and its Consolidated Subsidiaries determined in accordance
with GAAP, and (c) the aggregate liquidation preference of preferred stocks (other than
preferred stocks subject to mandatory redemption or repurchase) of the Guarantor and its
Consolidated Subsidiaries upon involuntary liquidation.




     “Consolidated Debt” means, at any time, the Indebtedness of the Guarantor and its
Consolidated Subsidiaries that would be classified as debt on a balance sheet of the
Guarantor determined on a consolidated basis in accordance with GAAP.




     “Consolidated Subsidiary” means, on any date, each Subsidiary of the Guarantor the
accounts of which, in accordance with GAAP, would be consolidated with those of the
Guarantor in its consolidated financial statements if such statements were prepared as of
such date.




     “Contingent Guaranty” means a direct or contingent liability in respect of a Project
Financing (whether incurred by assumption, guaranty, endorsement or otherwise) that either
(a) is limited to guarantying performance of the completion of the Project that is financed
by such Project Financing or (b) is contingent upon, or the obligation to pay or perform
under which is contingent upon, the occurrence of any event other than failure of the
primary obligor to pay upon final maturity (whether by acceleration or otherwise).




     “Continuing Directors” means (a) all members of the board of directors of the Guarantor
who have held office continually since the Effective Date, and (b) all members of the board
of directors of the Guarantor who were elected as directors after the Effective Date and
whose nomination for election was approved by a vote of at least 50% of the Continuing
Directors.









 



5



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




     “Control” means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have
meanings correlative thereto.




     “Credit Documents” means (a) this Agreement, any promissory notes executed pursuant to
Section 2.10, and any Assignment and Acceptances, (b) any certificates, opinions and other
documents required to be delivered pursuant to Section 3.01, and (c) any other documents
delivered by a Credit Party pursuant to or in connection with any one or more of the
foregoing.




     “Credit Party” means each of the Borrower and the Guarantor; and “Credit Parties” means
the Borrower and the Guarantor, collectively.




     “Debt for Borrowed Money” means, as to any Person, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such Person evidenced
by bonds, debentures, notes or similar instruments, (c) all Capital Lease obligations of
such Person, and (d) all obligations of such Person under synthetic leases, tax retention
operating leases, off-balance sheet loans or other off-balance sheet financing products
that, for tax purposes, are considered indebtedness for borrowed money of the lessee but are
classified as operating leases under GAAP.




     “Debt to Capitalization Ratio” means, at any time, the ratio of Consolidated Debt to
Consolidated Capitalization.




     “Default” means any event or condition that constitutes an Event of Default or that,
upon notice, lapse of time or both would, unless cured or waived, become an Event of
Default.




     “Departing Lender” means each lender under the Existing Credit Agreement that executes
and delivers to the Administrative Agent a Departing Lender Signature Page.




     “Departing Lender Signature Page” means each signature page to this Agreement on which
it is indicated that the Departing Lender executing the same shall cease to be a party to
the Existing Credit Agreement on the Effective Date.




     “Dollars” or “$” refers to lawful money of the United States of America.




     “Effective Date” means the date on which this Agreement has been executed and delivered
by each of the Borrower, the Guarantor, the Syndication Agent, the Co-Documentation Agents,
the initial Lenders and the Swingline Lender, the LC Bank and the Administrative Agent.









 



6



     “Environmental Laws” means any and all foreign, federal, state, local or municipal laws
(including, without limitation, common laws), rules, orders, regulations, statutes,
ordinances, codes, decrees, judgments, awards, writs, injunctions, requirements of any
Governmental Authority or other requirements of law regulating, relating to or imposing
liability or standards of conduct concerning, pollution, waste, industrial hygiene,
occupational safety or health, the presence, transport, manufacture, generation, use,
handling, treatment, distribution, storage, disposal or release of Hazardous Substances, or
protection of human health, plant life or animal life, natural resources or the environment,
as now or at any time hereafter in effect.




     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities),
of the Guarantor or any of its Subsidiaries directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials
into the environment or (e) any contract, agreement or other consensual arrangement pursuant
to which liability is assumed or imposed with respect to any of the foregoing.




     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.




     “ERISA Affiliate” means any Person who, for purposes of Title IV of ERISA, is a member
of the Guarantor’s controlled group, or under common control with the Guarantor, within the
meaning of Section 414 of the Code and the regulations promulgated and rulings issued
thereunder.




     “ERISA Event” means (a) a reportable event, within the meaning of Section 4043 of
ERISA, unless the 30-day notice requirement with respect thereto has been waived by the
PBGC, (b) the provision by the administrator of any Plan of a notice of intent to terminate
such Plan, pursuant to Section 4041(a)(2) and 4041(c) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA), (c) the
withdrawal by the Guarantor or an ERISA Affiliate from a Multiple Employer Plan during a
plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA, (d) the failure by the Guarantor or any ERISA Affiliate to make a payment to a Plan
required under Section 302(f)(1) of ERISA, which Section imposes a lien for failure to make
required payments, (e) the adoption of an amendment to a Plan requiring the provision of
security to such Plan, pursuant to Section 307 of ERISA, or (f) the institution by the PBGC
of proceedings to terminate a Plan, pursuant to Section 4042 of ERISA, or the occurrence of
any event or condition which may reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to administer, a Plan.




     “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the
Board, as in effect from time to time.









 



7



     “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan is, or the Loans comprising such Borrowing are, bearing interest at a rate determined
by reference to the LIBO Rate.




     “Eurodollar Rate Reserve Percentage” of any Lender for the Interest Period for any
Eurodollar Loan means the reserve percentage applicable during such Interest Period (or if
more than one such percentage shall be so applicable, the daily average of such percentages
for those days in such Interest Period during which any such percentage shall be so
applicable) under regulations issued from time to time by the Board (or any successor) for
determining the maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for such Lender with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities having a term
equal to such Interest Period.




     “Event of Default” has the meaning assigned to such term in Article VIII.




     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) income or franchise taxes imposed on (or measured by) its net income or net
earnings by the United States of America, or by the jurisdiction under the laws of which
such recipient is organized or in which its principal office is located or, in the case of
any Lender, in which its applicable lending office is located and (b) in case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under Section 2.19(d)),
any withholding tax that (i) is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement, except to the extent that such
Foreign Lender’s assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.17(a) or (ii) is attributable to such Foreign Lender’s failure to comply with
Section 2.17 (e) when legally able to do so.




     “Existing Credit Agreement” is defined in the recitals hereto.




     “Exposure” means, with respect to any Lender at any time, such Lender’s Outstanding
Loans plus such Lender’s Applicable Percentage of the aggregate LC Outstandings at such time
plus such Lender’s Applicable Percentage of the aggregate Unreimbursed LC Disbursements at
such time.




     “Extension of Credit” means (a) the making by any Lender of a Revolving Loan, (b) the
making by the Swingline Lender of any Swingline Loan, (c) the issuance of a Letter of Credit
by the LC Bank or (d) the amendment of any Letter of Credit having the effect of extending
the stated termination date thereof, increasing the LC Outstandings, or otherwise altering
any of the material terms or conditions thereof.




     “Facility Fee” has the meaning set forth in Section 2.12.




     “Federal Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. § 101 et
seq.) as now or hereafter in effect, or any successor statute.









 



8



     “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers,
as published on the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for
such transactions received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.




     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the
United States of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.




     “GAAP” means generally accepted accounting principles in the United States of America
consistent with those applied in the preparation of the financial statements referred to in
Section 4.01(e).




     “Governmental Authority” means the government of the United States of America, any
other nation, or any political subdivision of the United States of America or any other
nation, whether state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government and
includes, in any event, an “Independent System Operator” or any entity performing a similar
function.




     “Granting Lender” has the meaning set forth in Section 11.04.




     “Guarantor” means NiSource.




     “Guaranty” means the guaranty of the Guarantor pursuant to Article X of this Agreement.




     “Hazardous Materials” means any asbestos; flammables; volatile hydrocarbons; industrial
solvents; explosive or radioactive materials; hazardous wastes; toxic substances; liquefied
natural gas; natural gas liquids; synthetic gas; oil, petroleum, or related materials and
any constituents, derivatives, or byproducts thereof or additives thereto; or any other
material, substance, waste, element or compound (including any product) regulated pursuant
to any Environmental Law, including, without limitation, substances defined as “hazardous
substances,” “hazardous materials,” “contaminants,” “pollutants,” “hazardous wastes,” “toxic
substances,” “solid waste,” or “extremely hazardous substances” in (i) CERCLA, (ii) the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq., (iii) the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., (iv) the Federal Water
Pollution Control Act, as amended, 33 U.S.C. Section 1251 et seq., (v) the Clean Air Act, 42
U.S.C. Section 7401 et seq., (vi) the Toxic Substances Control Act, 15 U.S.C. Section 2601
et seq., (vii) the Safe









 



9



Drinking Water Act, 42 U.S.C. Section 300f et seq., or (viii) foreign, state, local or municipal
law, in each case, as may be amended from time to time.




     “Indebtedness” of any Person means (without duplication) (a) Debt for Borrowed Money,
(b) obligations of such Person to pay the deferred purchase price of property or services,
except trade accounts payable arising in the ordinary course of business which are not
overdue, (c) all obligations, contingent or otherwise, of such Person in respect of any
letters of credit, bankers’ acceptances or interest rate, currency or commodity swap, cap or
floor arrangements, (d) all indebtedness of others secured by (or for which the holder of
such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien
on property owned or acquired by such Person, whether or not the indebtedness secured
thereby has been assumed, (e) all amounts payable by such Person in connection with
mandatory redemptions or repurchases of preferred stock, and (f) obligations of such Person
under direct or indirect guarantees in respect of, and obligations (contingent or otherwise)
to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of the kinds referred to in clauses (a) through
(e) above.




     “Indemnified Taxes” means Taxes other than Excluded Taxes.




     “Indemnitee” has the meaning set forth in Section 11.03.




     “Index Debt” means the senior unsecured long-term debt securities of the Borrower,
without third-party credit enhancement provided by a Person other than the Guarantor.




     “Information” has the meaning set forth in Section 11.12.




     “Insufficiency” means, with respect to any Plan, the amount, if any, by which the
present value of all vested and unvested accrued benefits under such Plan exceeds the fair
market value of assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plan using actuarial assumptions used in determining such Plan’s
normal cost for purposes of Section 4l2(b)(2)(A) of the Code.




     “Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.06.




     “Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each
March, June, September and December, (b) with respect to any Eurodollar Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the
case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration,
the day that is three months after the first day of such Interest Period, (c) with respect
to any Swingline Loan, the date such Swingline Loan is required to be repaid and (d) with
respect to any Loan, the Termination Date.




     “Interest Period” means with respect to any Eurodollar Borrowing, the period commencing
on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the Borrower









 



10



may elect; provided that (a) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day; and (b) any Interest
Period that commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such Interest
Period. For purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.




     “LC Outstandings” means, for any date of determination, the aggregate maximum amount
available to be drawn under all Letters of Credit outstanding on such date (assuming the
satisfaction of all conditions for drawing enumerated therein).




     “LC Risk Participation Fee” has the meaning set forth in Section 2.12.




     “Lenders” means (a) the Persons listed on Schedule 2.01, including any such Person
identified thereon or in the signature pages hereto as a Lead Arranger, and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance, other than
any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance,
(b) the Swingline Lender in respect of the Swingline Loans made by it and (c) if and to the
extent so provided in Section 2.04(c), the LC Bank.




     “Letter of Credit” means a letter of credit issued by the LC Bank pursuant to the terms
of this Agreement, together with the letters of credit deemed issued by the LC Bank
hereunder pursuant to Section 2.04(h), in each case, as such letter of credit may from time
to time be amended, modified or extended in accordance with the terms of this Agreement.




     “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Telerate Page 3750 (or on any successor or substitute page of such
service, or any successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest
rates applicable to dollar deposits in the London interbank market) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such Interest Period, as
the rate for dollar deposits with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, then the “LIBO Rate” with
respect to such Eurodollar Borrowing for such Interest Period shall be the rate at which
Dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.









 



11



     “Lien” has the meaning set forth in Section 6.01(a).




     “Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement.




     “Margin Stock” means margin stock within the meaning of Regulations U and X issued by
the Board.




     “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations, condition (financial or otherwise) or prospects of the Guarantor and its
Subsidiaries taken as a whole; (b) the validity or enforceability of any of Credit Documents
or the rights, remedies and benefits available to the Administrative Agent and the Lenders
thereunder; or (c) the ability of the Borrower or the Guarantor to consummate the
Transactions.




     “Material Subsidiary” means at any time the Borrower, NIPSCO, Columbia, and each
Subsidiary of the Guarantor, other than the Borrower, NIPSCO and Columbia, in respect of
which:




     (a) the Guarantor’s and its other Subsidiaries’ investments in and advances to such
Subsidiary and its Subsidiaries exceed 10% of the consolidated total assets of the Guarantor
and its Subsidiaries taken as a whole, as of the end of the most recent fiscal year; or




     (b) the Guarantor’s and its other Subsidiaries’ proportionate interest in the total
assets (after intercompany eliminations) of such Subsidiary and its Subsidiaries exceeds 10%
of the consolidated total assets of the Guarantor and its Subsidiaries as of the end of the
most recent fiscal year; or




     (c) the Guarantor’s and its other Subsidiaries’ equity in the income from continuing
operations before income taxes, extraordinary items and cumulative effect of a change in
accounting principles of such Subsidiary and its Subsidiaries exceeds 10% of the
consolidated income of the Guarantor and its Subsidiaries for the most recent fiscal year.




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




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




     “Multiple Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, which (a) is maintained for employees of the Borrower or an ERISA
Affiliate and at least one Person other than the Borrower and its ERISA Affiliates, or (b)
was so maintained and in respect of which the Borrower or an ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event that such plan has been or were
to be terminated.









 



12



     “NIPSCO” means Northern Indiana Public Service Company, an Indiana corporation.




     “Non-Recourse Debt” means Indebtedness of the Guarantor or any of its Subsidiaries
which is incurred in connection with the acquisition, construction, sale, transfer or other
disposition of specific assets, to the extent recourse, whether contractual or as a matter
of law, for non-payment of such Indebtedness is limited (a) to such assets or (b) if such
assets are (or are to be) held by a Subsidiary formed solely for such purpose, to such
Subsidiary or the Capital Stock of such Subsidiary.




     “Obligations” means all amounts, direct or indirect, contingent or absolute, of every
type or description, and at any time existing and whenever incurred (including, without
limitation, after the commencement of any bankruptcy proceeding), owing to the
Administrative Agent or any Lender pursuant to the terms of this Agreement or any other
Credit Document.




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




     “Outstanding Loans” means, as to any Lender at any time, the aggregate principal amount
of all Loans made or maintained by such Lender then outstanding; provided, however, that for
purposes of any calculation of the Outstanding Loans, any then outstanding Swingline Loans
shall be deemed allocated among the Lenders (other than the Swingline Lender in its capacity
as such) in accordance with their respective Applicable Percentages.




     “Participant” has the meaning set forth in Section 11.04.




     “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.




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




     “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.




     “Pricing Grid” means the pricing grid attached hereto as Annex A.




     “Prime Rate” means the rate of interest per annum publicly announced from time to time
by Barclays as its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.









 



13



     “Project” means an energy or power generation, transmission or distribution facility
(including, without limitation, a thermal energy generation, transmission or distribution
facility and an electric power generation, transmission or distribution facility (including,
without limitation, a cogeneration facility)), a gas production, transportation or
distribution facility, or a minerals extraction, processing or distribution facility,
together with (a) all related electric power transmission, fuel supply and fuel
transportation facilities and power supply, thermal energy supply, gas supply, minerals
supply and fuel contracts, (b) other facilities, services or goods that are ancillary,
incidental, necessary or reasonably related to the marketing, development, construction,
management, servicing, ownership or operation of such facility, (c) contractual arrangements
with customers, suppliers and contractors in respect of such facility, and (d) any
infrastructure facility related to such facility, including, without limitation, for the
treatment or management of waste water or the treatment or remediation of waste, pollution
or potential pollutants.




     “Project Financing” means Indebtedness incurred by a Project Financing Subsidiary to
finance (a) the development and operation of the Project such Project Financing Subsidiary
was formed to develop or (b) activities incidental thereto; provided that such Indebtedness
does not include recourse to the Guarantor or any of its other Subsidiaries other than (x)
recourse to the Capital Stock in any such Project Financing Subsidiary, and (y) recourse
pursuant to a Contingent Guaranty.




     “Project Financing Subsidiary” means any Subsidiary of the Guarantor (a) that (i) is
not a Material Subsidiary, and (ii) whose principal purpose is to develop a Project and
activities incidental thereto (including, without limitation, the financing and operation of
such Project), or to become a partner, member or other equity participant in a partnership,
limited liability company or other entity having such a principal purpose, and (b)
substantially all the assets of which are limited to the assets relating to the Project
being developed or Capital Stock in such partnership, limited liability company or other
entity (and substantially all of the assets of any such partnership, limited liability
company or other entity are limited to the assets relating to such Project); provided that
such Subsidiary incurs no Indebtedness other than in respect of a Project Financing.




     “Register” has the meaning set forth in Section 11.04.




     “Related Parties” means, with respect to any specified Person, such Person’s Affiliates
and the respective directors, officers, employees, agents and advisors of such Person and
such Person’s Affiliates.




     “Request for Issuance” has the meaning set forth in Section 2.04.




     “Required Lenders” means Lenders having more than 50% in aggregate amount of the
Commitments, or if the Commitments shall have been terminated, of the Total Outstanding
Principal.




     “Responsible Officer” of a Credit Party means any of (a) the President, the chief
financial officer, the chief accounting officer and the Treasurer of such Credit Party and









 



14



(b) any other officer of such Credit Party whose responsibilities include monitoring
compliance with this Agreement.




     “Revolving Loan” means a Loan made pursuant to Section 2.02.




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




     “SPFV” has the meaning set forth in Section 11.04.




     “Subsidiary” means, with respect to any Person, any corporation or other entity of
which at least a majority of the outstanding shares of stock or other ownership interests
having by the terms thereof ordinary voting power to elect a majority of the board of
directors or other managers of such corporation or other entity (irrespective of whether or
not at the time stock or other equity interests of any other class or classes of such
corporation or other entity shall have or might have voting power by reason of the happening
of any contingency) is at the time directly or indirectly owned or controlled by such Person
or one or more of the Subsidiaries of such Person.




     “Substantial Subsidiaries” has the meaning set forth in Section 8.01.




     “Swingline Commitment” means, for the Swingline Lender, the amount set forth as the
Swingline Lender’s Swingline Commitment on Schedule 2.01 hereto.




     “Swingline Facility Amount” has the meaning specified in Section 2.01(b).




     “Swingline Loan” means a loan made by the Swingline Lender pursuant to the terms of
this Agreement.




     “Swingline Lender” means Barclays.




     “Swingline Rate” means: (a) in the case of a Swingline Loan in an original principal
amount of $100,000 or more, a fixed rate of interest equal to the sum of (i) the Swingline
Lender’s cost of funds as determined by the Swingline Lender in its sole discretion with
reference to its funding sources on the date such Swingline Loan is made for a term equal to
the period such Swingline Loan is to be outstanding plus (ii) the Applicable Rate then in
effect for Eurodollar Revolving Loans or (b) in the case of a Swingline Loan in an original
principal amount of less than $100,000, a floating rate of interest equal to the sum of (i)
the Alternate Base Rate plus (ii) the Applicable Rate then in effect for Alternate Base Rate
Loans, in each case, as notified to the Borrower at the time such Swingline Loan is made.
Any Swingline Rate determined in accordance with clause (a), above, shall be adjusted in
each case from time to time to give effect to all applicable reserve requirements,
including, without limitation, special, emergency or supplemental reserves.




     “Swingline Request” means a request by the Borrower for the Swingline Lender to make a
Swingline Loan, which shall contain the information in respect of such requested Swingline
Loan specified in Section 2.03(b) and shall be delivered to the









 



15



Swingline Lender and the Administrative Agent in writing, or by telephone, immediately
confirmed in writing.




     “Syndication Agent” means Credit Suisse, in its capacity as syndication agent for the
Lenders hereunder.




     “Taxes” means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority, including any interest,
penalties and additions to tax imposed thereon or in connection therewith.




     “Termination Date” means the earliest of (a) July 7, 2011 and (b) the date upon which
the Commitments are terminated pursuant to Section 8.1 or otherwise.




     “Total Outstanding Principal” means the aggregate amount of the Outstanding Loans of
all Lenders plus the aggregate LC Outstandings plus the aggregate Unreimbursed LC
Disbursements.




     “Transactions” means the execution, delivery and performance by the Borrower and the
Guarantor of this Agreement and the Borrowing of Loans and issuances of Letters of Credit
hereunder.




     “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference
to the LIBO Rate or the Alternate Base Rate.




     “Unreimbursed LC Disbursement” means the unpaid obligation (or, if the context so
requires, the amount of such obligation) of the Borrower to reimburse the LC Bank for a
payment made by the LC Bank under a Letter of Credit, but shall not include any portion of
such obligation that has been repaid with the proceeds of, or converted to, Loans hereunder.




     “Utility Subsidiary” means a Subsidiary of the Guarantor that is subject to regulation
by a Governmental Authority (federal, state or otherwise) having authority to regulate
utilities, and any Wholly-Owned Subsidiary thereof.




     “Utilization Margin” has the meaning set forth in Section 2.13.




     “Wholly-Owned Subsidiary” means, with respect to any Person, any corporation or other
entity of which all of the outstanding shares of stock or other ownership interests in
which, other than directors’ qualifying shares (or the equivalent thereof), are at the time
directly or indirectly owned or controlled by such Person or one or more of the Subsidiaries
of such Person.




     “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in
Sections 4201, 4203 and 4205 of ERISA.









 



16


     SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a
“Revolving Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar
Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving
Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar
Revolving Borrowing”).



     SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “or” shall not be exclusive. The word “will” shall be construed to have the same meaning and
effect as the word “shall”. Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be construed as referring to
such agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to include such
Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of
similar import, shall be construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights. The terms “knowledge of”, “awareness of” and
“receipt of notice of” in relation to a Credit Party, and other similar expressions, mean knowledge
of, awareness of, or receipt of notice by, a Responsible Officer of such Credit Party.



     SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms
of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any change occurring after
the Effective Date in GAAP or in the application thereof on the operation of such provision (or if
the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision shall be interpreted
on the basis of GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended in accordance
herewith.



ARTICLE II

THE CREDITS




     SECTION 2.01. Commitments.



     (a) Subject to the terms and conditions set forth herein, each Lender agrees to make Revolving
Loans to the Borrower from time to time during the Availability Period in an









 



17



aggregate principal amount that will not result in (i) such Lender’s Exposure exceeding such Lender’s Commitment or
(ii) the sum of the Exposures of all of the Lenders exceeding the Aggregate Commitments.



     (b) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time during the Availability Period in an aggregate
principal amount that will not result in (i) the aggregate principal amount of all Swingline Loans
made by the Swingline Lender then outstanding under this Agreement exceeding the Swingline Lender’s
Swingline Commitment, (ii) the aggregate principal amount of all Swingline Loans then outstanding
under this Agreement exceeding $250,000,000 (the “Swingline Facility Amount”), (iii) any Lender’s
Exposure exceeding such Lender’s Commitment or (iv) the sum of the Exposures of all of the Lenders
exceeding the Aggregate Commitments.



     (c) Subject to the terms and conditions set forth herein, the LC Bank agrees to issue, extend
or amend Letters of Credit and each Lender agrees to participate in such Letters of Credit, in each
case as set forth herein, from time to time during the Availability Period in an aggregate stated
amount that will not result in (i) the aggregate LC Outstandings under this Agreement exceeding
$500,000,000, (ii) any Lender’s Exposure exceeding such Lender’s Commitment or (iii) the sum of the
Exposures of all of the Lenders exceeding the Aggregate Commitments.



     (d) Within the foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Revolving Loans and Swingline Loans and request the
issuance, extension or amendment of Letters of Credit.



     SECTION 2.02. Revolving Loans and Revolving Borrowings; Requests for Borrowings.



     (a) Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans
made by the Lenders ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall
be responsible for any other Lender’s failure to make Loans as required.



     (b) Subject to Section 2.14, each Revolving Borrowing shall be comprised entirely of ABR Loans
or Eurodollar Loans as the Borrower may request in accordance herewith. Each Lender at its option
may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender
to make such Loan; provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.



     (c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $5,000,000 and not less
than $10,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be
in an aggregate amount that is an integral multiple of $100,000; provided that an ABR Revolving
Borrowing may be to an aggregate amount that is equal to the entire unused balance of the Aggregate
Commitments. Borrowings of more than one Type and









 



18



Class may be outstanding at the same time; provided that there shall not at any time be more than a total of ten Eurodollar Revolving
Borrowings outstanding under this Agreement.



     (d) To request a Revolving Borrowing, the Borrower shall notify the Administrative Agent of
such request by telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of the proposed Borrowing or (b) in the case of
an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in
a form approved by the Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information:




     (i) the aggregate amount of the requested Borrowing;




     (ii) the date of such Borrowing, which shall be a Business Day;




     (iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and




     (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”.


If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Revolving Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration. Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount
of such Lender’s Loan to be made as part of the requested Borrowing.




     (e) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Eurodollar Borrowing if the Interest Period
requested with respect thereto would end after the Termination Date.



     SECTION 2.03. Swingline Loans. (a) Each Swingline Loan to be made by the Swingline
Lender shall be made on notice given by the Borrower to the Swingline Lender and the Administrative
Agent via fax transmission in accordance with Section 11.01 hereof not later than 11:00 A.M. (New
York City time) on the borrowing date of the proposed Swingline Loan (which shall be a Business
Day) or such later time as the Swingline Lender and the Administrative Agent may agree. Each such
notice (a “Swingline Request”) shall specify the requested borrowing date of such Swingline
Loan, the amount thereof and the maturity date thereof (which shall be a Business Day not later
than five days from the date such Swingline Loan is to be made). Upon receipt of any Swingline
Request, the Swingline Lender shall give to the Administrative Agent prompt notice thereof by fax
transmission, and shall notify the Borrower and the Administrative Agent of the Swingline Rate to
be applicable thereto. The Swingline Lender shall, before 2:00 P.M. (New York City time) on the
borrowing date of such









 



19



Swingline Loan, make such Swingline Loan available to the Administrative
Agent, in same day funds, and, after the Administrative Agent’s receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower to an account within the United States of America
specified in the relevant Swingline Request or, if not so specified, in accordance with Section
2.05.



     (b) Each Swingline Loan shall bear interest at the Swingline Rate and shall mature on the
first to occur of: (i) the date specified in the relevant Swingline Request, (ii) the date that is
five days following the date such Swingline Loan was made and (iii) the Termination Date. At no
time shall more than a total of five Swingline Loans be outstanding under this Agreement.



     (c) At any time upon written demand by the Swingline Lender, with a copy of such demand to the
Administrative Agent, and automatically upon the occurrence of an Event of Default, each other
Lender shall purchase from the Swingline Lender, and the Swingline Lender shall sell and assign to
each such other Lender, such other Lender’s pro rata share (based on its Applicable Percentage) of
the Swingline Loans of the Swingline Lender outstanding as of the date of such demand or
occurrence, as the case may be, by making available to the Administrative Agent for the account of
the Swingline Lender an amount in same day funds equal to the portion of the principal amount of
each outstanding Swingline Loan to be purchased by such Lender. The Borrower hereby agrees to each
such sale and assignment. Each Lender agrees to pay to the Administrative Agent for the account of
the Swingline Lender its pro rata share (based on its Applicable Percentage) of each outstanding
Swingline Loan purchased pursuant to this clause (c) on (i) the Business Day on which demand
therefor is made by the Swingline Lender, provided, that, notice of such demand is received by such
Lender not later than 11:00 A.M. (New York City time) on such Business Day, (ii) the first Business
Day next succeeding such demand, if notice of such demand is received after such time or (iii) the
first Business Day next succeeding the date such Lender has actual knowledge of the occurrence of
such Event of Default. Upon any such assignment by the Swingline Lender to any other Lender of a
portion of any Swingline Loan, the Swingline Lender represents and warrants to such other Lender
that the Swingline Lender is the legal and beneficial owner of the interest being assigned by it,
but makes no other representation or warranty and assumes no responsibility with respect to such
Swingline Loan, the Credit Documents or the Borrower. If and to the extent that any Lender shall
not have so made its participated portion of such Swingline Loan or portion thereof available to
the Administrative Agent for the account of the Swingline Lender, such Lender agrees to pay to the
Swingline Lender forthwith on demand such amount together with interest thereon for each day from
the date of demand by the Swingline Lender until the date such amount is paid to the Swingline
Lender, at the Federal Funds Effective Rate. If such Lender shall pay such amount to the Swingline
Lender on any Business Day, such amount so paid in respect of principal shall constitute an ABR
Revolving Loan made by such Lender on such Business Day for all purposes of this Agreement, and the
outstanding principal amount of the relevant Swingline Loan(s) shall be reduced accordingly by such amount on such Business Day.
The obligation of each other Lender to purchase its pro rata share of the Swingline Lender’s
Swingline Loans in accordance with this subsection shall be absolute and unconditional,
notwithstanding the occurrence of any circumstances, including, without limitation any Event of
Default or any setoff, deduction or other defense asserted by the Borrower or any other Person,
except that any Lender shall have the right to bring suit against the Swingline Lender, and the
Swingline Lender shall be liable to such Lender, to the extent of any direct, as opposed to









 



20



consequential, damages suffered by such Lender which such Lender proves were caused by the
Swingline Lender’s wilful misconduct or gross negligence.



     SECTION 2.04. Letters of Credit



     (a) LC Bank. Subject to the terms and conditions hereof, the Borrower may from time to time
request Barclays, as LC Bank, to issue, extend or amend one or more Letters of Credit hereunder.
Any such request by the Borrower shall be notified to the Administrative Agent at least five
Business Days prior to the date upon which the Borrower proposes that the LC Bank issue, extend or
amend such Letter of Credit. At no time shall (i) the aggregate LC Outstandings exceed the sum of
the Commitments or (ii) the sum of the aggregate LC Outstandings under this Agreement exceed
$500,000,000.



     (b) Letters of Credit. Each Letter of Credit shall be issued (or the stated maturity thereof
extended or terms thereof modified or amended) on not less than five Business Days’ prior written
notice thereof to the Administrative Agent (which shall promptly distribute copies thereof to the
Lenders) and the LC Bank. Each such notice (a “Request for Issuance”) shall specify (i) the date
(which shall be a Business Day) of issuance of such Letter of Credit (or the date of effectiveness
of such extension, modification or amendment) and the stated expiry date thereof (which shall be
not later than the Termination Date), (ii) the proposed stated amount of such Letter of Credit and
(iii) such other information as shall demonstrate compliance of such Letter of Credit with the
requirements specified therefor in this Agreement. Each Request for Issuance shall be irrevocable
unless modified or rescinded by the Borrower not less than two days prior to the proposed date of
issuance (or effectiveness) specified therein. If the LC Bank shall have approved the form of such
Letter of Credit (or such extension, modification or amendment thereof), the LC Bank shall not
later than 11:00 A.M. (New York City time) on the proposed date specified in such Request for
Issuance, and upon fulfillment of the applicable conditions precedent and the other requirements
set forth herein and as otherwise agreed to between the LC Bank and the Borrower, issue (or extend,
amend or modify) such Letter of Credit and provide notice and a copy thereof to the Administrative
Agent. The Administrative Agent shall furnish (x) to each Lender, a copy of such notice and (y) to
each Lender that may so request, a copy of such Letter of Credit.



     (c) Reimbursement on Demand. Subject to the provisions of Section 2.04(d) hereof, the
Borrower hereby agrees to pay (whether with the proceeds of Loans made pursuant to this Agreement
or otherwise) to the LC Bank on demand (i) on and after each date on which the LC Bank shall pay
any amount under any Letter of Credit a sum equal to such amount so paid (which sum shall
constitute a demand loan from the LC Bank to the Borrower from the date of such payment by the LC
Bank until so paid by the Borrower), plus (ii) interest on any amount remaining unpaid by the
Borrower to the LC Bank under clause (i), above, from the date such sum becomes payable on demand until payment in full, at a rate per annum which is equal to 2%
plus the then applicable Alternate Base Rate until paid in full.



     (d) Loans for Unreimbursed LC Disbursements. If the LC Bank shall make any payment under any
Letter of Credit and if the conditions precedent set forth in Section 3.02 of this Agreement have
been satisfied as of the date of such honor, then, each Lender’s payment made to the LC Bank
pursuant to paragraph (e) of this Section 2.04 in respect of such Unreimbursed









 



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LC Disbursement shall be deemed to constitute an ABR Loan made for the account of the Borrower by such Lender.
Each such ABR Loan shall mature and be due and payable on the earlier of (i) the first March 31,
June 30, September 30 or December 31 to occur following the date such ABR Loan is made and (ii) the
Termination Date.



     (e) Participation; Reimbursement of LC Bank.




     (i) Upon the issuance of any Letter of Credit by the LC Bank (and, in the case of the
Letters of Credit identified on Schedule 2.04, on the Effective Date), the LC Bank hereby
sells and transfers to each Lender, and each Lender hereby acquires from the LC Bank, an
undivided interest and participation to the extent of such Lender’s Applicable Percentage in
and to such Letter of Credit, including the obligations of the LC Bank under and in respect
thereof and the Borrower’s reimbursement and other obligations in respect thereof, whether
now existing or hereafter arising.




     (ii) If the LC Bank shall not have been reimbursed in full for any payment made by the
LC Bank under any Letter of Credit on the date of such payment, the LC Bank shall promptly
notify the Administrative Agent and the Administrative Agent shall promptly notify each
Lender of such non-reimbursement and the amount thereof. Upon receipt of such notice from
the Administrative Agent, each Lender shall pay to the Administrative Agent for the account
of the LC Bank an amount equal to such Lender’s Applicable Percentage of such Unreimbursed
LC Disbursement, plus interest on such amount at a rate per annum equal to the Federal Funds
Rate from the date of such payment by the LC Bank to the date of payment to the LC Bank by
such Lender. All such payments by each Lender shall be made in United States dollars and in
same day funds not later than 3:00 P.M. (New York City time) on the later to occur of (A)
the Business Day immediately following the date of such payment by the LC Bank and (B) the
Business Day on which such Lender shall have received notice of such non-reimbursement;
provided, however, that if such notice is received by such Lender later than 11:00 A.M. (New
York City time) on such Business Day, such payment shall be payable on the next Business
Day. Each Lender agrees that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. If a Lender shall have paid to the LC Bank its ratable
portion of any Unreimbursed LC Disbursement, together with all interest thereon required by
the second sentence of this subparagraph (ii), such Lender shall be entitled to receive its
ratable share of all interest paid by the Borrower in respect of such Unreimbursed LC
Disbursement. If such Lender shall have made such payment to the LC Bank, but without all
such interest thereon required by the second sentence of this subparagraph (ii), such Lender
shall be entitled to receive its ratable share of the interest paid by the Borrower in
respect of such Unreimbursed LC Disbursement only from the date it shall have paid all interest
required by the second sentence of this subparagraph (ii).




     (iii) The failure of any Lender to make any payment to the LC Bank in accordance with
subparagraph (ii) above, shall not relieve any other Lender of its obligation to make
payment, but neither the LC Bank nor any Lender shall be responsible for the failure of any
other Lender to make such payment. If any Lender shall fail to make any payment to the LC
Bank in accordance with subparagraph (ii) above, then such









 



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Lender shall pay to the LC Bank forthwith on demand such corresponding amount together with interest thereon, for each day
until the date such amount is repaid to the LC Bank at the Federal Funds Rate. Nothing
herein shall in any way limit, waive or otherwise reduce any claims that any party hereto
may have against any non-performing Lender.




     (iv) If any Lender shall fail to make any payment to the LC Bank in accordance with
subparagraph (ii), above, then, in addition to other rights and remedies which the LC Bank
may have, the Administrative Agent is hereby authorized, at the request of the LC Bank, to
withhold and to apply to the payment of such amounts owing by such Lender to the LC Bank and
any related interest, that portion of any payment received by the Administrative Agent that
would otherwise be payable to such Lender. In furtherance of the foregoing, if any Lender
shall fail to make any payment to the LC Bank in accordance with subparagraph (ii), above,
and such failure shall continue for five Business Days following written notice of such
failure from the LC Bank to such Lender, the LC Bank may acquire, or transfer to a third
party in exchange for the sum or sums due from such Lender, such Lender’s interest in the
related Unreimbursed LC Disbursement and all other rights of such Lender hereunder in
respect thereof, without, however, relieving such Lender from any liability for damages,
costs and expenses suffered by the LC Bank as a result of such failure, and prior to such
transfer, the LC Bank shall be deemed, for purposes of Section 2.18 and Article VIII hereof,
to be a Lender hereunder owed a Loan in an amount equal to the outstanding principal amount
due and payable by such Lender to the Administrative Agent for the account of such LC Bank
pursuant to subparagraph (ii), above. The purchaser of any such interest shall be deemed to
have acquired an interest senior to the interest of such Lender and shall be entitled to
receive all subsequent payments which the LC Bank or the Administrative Agent would
otherwise have made hereunder to such Lender in respect of such interest.



     (f) Obligations Absolute. The payment obligations of each Lender under Section 2.04(e) and of
the Borrower under Section 2.04(c) of this Agreement in respect of any payment under any Letter of
Credit and any Loan made under Section 2.04(d) shall be unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all circumstances, including,
without limitation, the following circumstances:




     (i) any lack of validity or enforceability of any Credit Document or any other
agreement or instrument relating thereto or to such Letter of Credit;




     (ii) any amendment or waiver of, or any consent to departure from, all or any of the
Credit Documents;




     (iii) the existence of any claim, set-off, defense or other right which the Borrower
may have at any time against any beneficiary, or any transferee, of such Letter of Credit
(or any Persons for whom any such beneficiary or any such transferee may be acting), the LC
Bank, or any other Person, whether in connection with this Agreement, the transactions
contemplated herein or by such Letter of Credit, or any unrelated transaction;









 



23



     (iv) any statement or any 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;




     (v) payment in good faith by the LC Bank under the Letter of Credit issued by the LC
Bank against presentation of a draft or certificate which does not comply with the terms of
such Letter of Credit; or




     (vi) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing.



     (g) Liability of LC Bank and the Lenders. The Borrower assumes all risks of the acts and
omissions of any beneficiary or transferee of any Letter of Credit. Neither the LC Bank, the
Lenders nor any of their respective officers, directors, employees, agents or Affiliates shall be
liable or responsible for (i) the use that may be made of such Letter of Credit or any acts or
omissions of any beneficiary or transferee thereof in connection therewith; (ii) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii)
payment by the LC Bank against presentation of documents that do not comply with the terms of such
Letter of Credit, including failure of any documents to bear any reference or adequate reference to
such Letter of Credit; or (iv) any other circumstances whatsoever in making or failing to make
payment under such Letter of Credit, except that the Borrower or any Lender shall have the right to
bring suit against the LC Bank, and the LC Bank shall be liable to the Borrower and any Lender, to
the extent of any direct, as opposed to consequential, damages suffered by the Borrower or such
Lender which the Borrower or such Lender proves were caused by the LC Bank’s wilful misconduct or
gross negligence, including the LC Bank’s wilful or grossly negligent failure to make timely
payment under such Letter of Credit following the presentation to it by the beneficiary thereof of
a draft and accompanying certificate(s) which strictly comply with the terms and conditions of such
Letter of Credit. In furtherance and not in limitation of the foregoing, the LC Bank may accept
sight drafts and accompanying certificates presented under the Letter of Credit issued by the LC
Bank that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary. Notwithstanding the foregoing, no Lender
shall be obligated to indemnify the Borrower for damages caused by the LC Bank’s wilful misconduct
or gross negligence, and the obligation of the Borrower to reimburse the Lenders hereunder shall be
absolute and unconditional, notwithstanding the gross negligence or wilful misconduct of the LC
Bank.



     (h) Transitional Provision. Schedule 2.04 contains a schedule of certain letters of credit
issued (or deemed issued) for the account of the Borrower pursuant to the Existing Credit Agreement
prior to the Effective Date. Subject to the satisfaction of the conditions contained in
Sections 3.01 and 3.02, from and after the Effective Date such letters of credit shall be
deemed to be Letters of Credit issued pursuant to this Section 2.04.



     SECTION 2.05. Funding of Borrowings.



     (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds by 3:00 p.m., New York City time, to the









 



24



account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders.
The Administrative Agent will make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account established and maintained by the Borrower at the
Administrative Agent’s office in New York City.



     (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed time of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the Federal Funds
Effective Rate or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If
such Lender pays such amount to the Administrative Agent, then such amount shall constitute such
Lender’s Loan included in such Borrowing.



     SECTION 2.06. Interest Elections.



     (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate Borrowing.



     (b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.02 if the Borrower were requesting a Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.



     (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:




     (i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be









 



25



specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and




     (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.


If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.




     (d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.



     (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the request of the Required
Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.



     SECTION 2.07. Mandatory Termination or Reduction of Commitments.



     Unless previously terminated, the Commitments shall terminate on the Termination Date.



     SECTION 2.08. Mandatory Prepayments.



     (a) If at any time the Total Outstanding Principal exceeds the Aggregate Commitments then in
effect for any reason whatsoever (including, without limitation, as a result of any reduction in
the Aggregate Commitments pursuant to Section 2.09), the Borrower shall prepay Loans in such
aggregate amount (together with accrued interest thereon to the extent required by
Section 2.13) as shall be necessary so that, after giving effect to such prepayment, the Total
Outstanding Principal does not exceed the Aggregate Commitments.



     (b) Each prepayment of Loans pursuant to this Section 2.08 shall be accompanied by the
Borrower’s payment of any amounts payable under Section 2.16 in connection with such prepayment.
Prepayments of Revolving Loans shall be applied ratably to the Loans so prepaid.









 



26


     SECTION 2.09. Optional Reduction of Commitments.



     (a) The Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount that is an integral
multiple of $10,000,000 and (ii) the Borrower shall not terminate or reduce the Commitments if,
after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.11, the
Total Outstanding Principal would exceed the Aggregate Commitments thereafter in effect.



     (b) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under Section 2.09(a) at least five Business Days prior to the effective date of
such termination or reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Commitments delivered by the Borrower may state that
such notice is conditioned upon the effectiveness of other credit facilities, in which case such
notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination or reduction of the
Commitments shall be permanent.



     (c) Each reduction of the Commitments pursuant to this Section 2.09 shall be made ratably
among the Lenders in accordance with their respective Commitments immediately preceding such
reduction.



     SECTION 2.10. Repayment of Loans; Evidence of Debt.



     (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent (i) for
the account of each Lender the then unpaid principal amount of each Revolving Loan on the
Termination Date, (ii) for the account of each Lender the then unpaid principal amount of each ABR
Loan deemed to be made pursuant to Section 2.04(d) on the maturity date therefor as determined
pursuant to Section 2.04(d) and (iii) for the account of the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the maturity date therefor as determined pursuant to
Section 2.03.



     (b) Each Lender (including the Swingline Lender) shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan (including each Swingline Loan) made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time hereunder.



     (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders (including the Swingline Lender) and each Lender’s
share thereof.









 



27


     (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation of the Borrower to
repay the Loans in accordance with the terms of this Agreement.



     (e) Any Lender (including the Swingline Lender) may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare, execute and deliver to such
Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to
such Lender and its registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 11.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such promissory note is
a registered note, to such payee and its registered assigns).



     SECTION 2.11. Optional Prepayment of Loans.



     (a) The Borrower shall have the right at any time and from time to time to prepay any
Borrowing (including any Swingline Borrowing) in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section.



     (b) The Borrower shall notify the Administrative Agent by telephone (confirmed by telecopy) of
any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of prepayment, (ii) in the case
of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of prepayment or (iii) in the case of prepayment of a Swingline Borrowing, not
later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of the Commitments as contemplated by Section 2.09, then such
notice of prepayment may be revoked if such notice of termination is revoked in accordance with
Section 2.09. Promptly following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of
any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of
a Revolving Borrowing of the same Type as provided in Section 2.02, and each partial prepayment of
a Swingline Borrowing shall be in an amount not less than $100,000 or any integral multiple
thereof, it being understood that the foregoing minimums shall not apply to the prepayment in whole
of the outstanding Revolving Loans of all Lenders or to the prepayment in whole of the outstanding
Swingline Loans of the Swingline Lender. Each prepayment of a Revolving Borrowing shall be applied
ratably to the Loans included in the prepaid Revolving Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.13 and by any amounts payable
under Section 2.16 in connection with such prepayment.









 



28


     SECTION 2.12. Fees.



     (a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
facility fee (each a “Facility Fee”), which shall accrue at the Applicable Rate on the daily amount
of the Commitment of such Lender (whether used or unused) during the period from and including the
Effective Date to but excluding the date on which such Commitment terminates; provided that, if
such Lender continues to have any Outstanding Loans after its Commitment terminates, then such
Facility Fee shall continue to accrue on the daily amount of such Lender’s Outstanding Loans from
and including the date on which its Commitment terminates to but excluding the date on which such
Lender ceases to have any Outstanding Loans. Accrued Facility Fees shall be payable in arrears on
the last day of March, June, September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after the Effective Date;
provided that any Facility Fees accruing after the date on which the Commitments terminate shall be
payable on demand. All Facility Fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day but excluding the
last day).



     (b) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
letter of credit risk participation fee (each a “LC Risk Participation Fee”), which shall accrue at
the Applicable Rate on the average daily amount of the LC Outstandings during the period from and
including the Effective Date to but excluding the Termination Date or such later date as on which
there shall cease to be any LC Outstandings. Accrued LC Risk Participation Fees shall be payable
in arrears on the last day of March, June, September and December of each year and on the date on
which the Commitments terminate, commencing on the first such date to occur after the Effective
Date; provided that any LC Risk Participation Fees accruing after the date on which the Commitments
terminate shall be payable on demand; provided further that if at any time the Total Outstanding
Principal Exceeds 50% of the Aggregate Commitments, the LC Risk Participation Fee otherwise
applicable to the LC Outstandings shall be increased by a rate per annum equal to the Utilization
Margin. All LC Risk Participation Fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day but excluding the
last day). The Borrower shall also pay to the LC Bank for its own account (x) a fronting fee,
which fronting fee shall accrue at a per annum rate agreed upon between the Borrower and the LC
Bank on the average daily amount of the LC Outstanding during the period such Letter of Credit
shall be outstanding, which fronting fee shall be payable in arrears on the last day of March,
June, September and December of each year and on the date on which such Letter of Credit
terminates, and (y) documentary and processing charges in connection with the issuance, or
modification cancellation, negotiation, or transfer of, and draws under Letters of Credit in
accordance with the LC Bank’s standard schedule for such charges as in effect from time to time.



     (c) The Borrower agrees to pay to the Administrative Agent, for its own account and for the
account of the other Persons entitled thereto, the fees provided for in that certain fee letter
dated June 12, 2006, executed and delivered with respect to the credit facility provided for
herein, in each case, in the amounts and at the times set forth therein and in immediately
available funds.









 



29


     (d) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent (for distribution, in the case of Facility Fees and LC Risk
Participation Fees, to the Lenders). Fees due and paid shall not be refundable under any
circumstances.



     (e) On the Effective Date, the Borrower shall pay to the Administrative Agent, for
distribution to the lenders then party to the Existing Credit Agreement and to any such other
Persons entitled thereto, the accrued and unpaid “Facility Fees”, “LC Risk Participation Fees” and
“Utilization Fees” (as each such terms are defined in the Existing Credit Agreement before giving
effect to this Agreement) and all other interest, fees and expenses accrued under the Existing
Credit Agreement to but not including the Effective Date.



     SECTION 2.13. Interest.



     (a) The Loans comprising each ABR Borrowing shall bear interest at a rate per annum equal to
the Alternate Base Rate plus the Applicable Rate.



     (b) The Loans comprising each Eurodollar Borrowing shall bear interest at a rate per annum
equal to the LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate.



     (c) Each Swingline Loan shall bear interest at a rate per annum equal to the Swingline Rate,
as determined for such Swingline Loan and notified by the Swingline Lender to the Borrower in
accordance with Section 2.03(a).



     (d) If at any time the Total Outstanding Principal exceeds 50% of the Aggregate Commitments,
the interest rate otherwise applicable to the Loans shall be increased by a rate per annum equal to
the utilization margin (the “Utilization Margin”) at the Applicable Rate determined in accordance
with the Pricing Grid.



     (e) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided above or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Loans as provided above.



     (f) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan; provided that (i) interest accrued pursuant to paragraph (e) of this Section shall
be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date of such repayment
or prepayment, (iii) in the event of any conversion of any Eurodollar Revolving Loan prior to the
end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion and (iv) all accrued interest shall be payable upon termination
of the Commitments.



     (g) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base









 



30



Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest
error.



     SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any Interest Period
for a Eurodollar Borrowing:



     (a) the Administrative Agent reasonably determines (which determination shall be conclusive
absent manifest error) that adequate and reasonable means do not exist for ascertaining the LIBO
Rate for such Interest Period; or



     (b) the Administrative Agent is advised by the Required Lenders that the LIBO Rate for such
Interest Period will not adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest Period;



then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective and
(ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be
made as an ABR Borrowing.



     SECTION 2.15. Increased Costs. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender or the LC Bank (except any such reserve requirement described in paragraph (e) of
this Section); or




     (ii) impose on any Lender or the LC Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or participation
therein or Unreimbursed LC Disbursements or Letters of Credit and participations therein;


and the result of any of the foregoing shall be to increase the cost to such Lender or the LC Bank
of making or maintaining any Eurodollar Loan or Unreimbursed LC Disbursement or issuing or
maintaining Letters of Credit and participation interests therein (or of maintaining its obligation
to make any such Loan or issue or participate in such Letter of Credit) or to reduce the amount of
any sum received or receivable by such Lender or the LC Bank hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender or the LC Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the LC Bank for such
additional costs incurred or reduction suffered.




     (b) If any Lender or the LC Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s or the









 



31



LC Bank’s capital or on the capital of its holding company, if any, as a consequence of this Agreement
to a level below that which such Lender or the LC Bank or its holding company could have achieved
but for such Change in Law (taking into consideration its policies and the policies of its holding
company with respect to capital adequacy), then from time to time the Borrower will pay to such
Lender or the LC Bank, as the case may be, such additional amount or amounts as will compensate it
or its holding company for any such reduction suffered.



     (c) A certificate of a Lender or the LC Bank, as the case may be, setting forth the amount or
amounts necessary to compensate it or its holding company as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay the amount shown as due on any such certificate within 10 days after receipt
thereof.



     (d) Failure or delay on the part of any Lender or the LC Bank to demand compensation pursuant
to this Section shall not constitute a waiver of its right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than ninety days prior to the date that such Lender or
the LC Bank notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of its intention to claim compensation therefor; provided, further that, if the
Change in Law giving rise to such increased costs or reductions is retroactive, then the ninety day
period referred to above shall be extended to include the period of retroactive effect thereof.



     (e) The Borrower shall pay (without duplication as to amounts paid under this Section 2.15) to
each Lender, so long as such Lender shall be required under regulations of the Board to maintain
reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Eurodollar Loan of such Lender, from the
date of such Loan until such principal amount is paid in full, at an interest rate per annum equal
at all times to the remainder obtained by subtracting (i) the LIBO Rate for the Interest Period for
such Loan from (ii) the rate obtained by dividing such LIBO Rate by a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period, payable on
each date on which interest is payable on such Loan. Such additional interest determined by such
Lender and notified to the Borrower and the Administrative Agent, accompanied by the calculation of
the amount thereof, shall be conclusive and binding for all purposes absent manifest error.



     SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any principal of any
Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a
result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Revolving Loan on the date specified in any notice delivered pursuant hereto (regardless
of whether such notice is permitted to be revocable under Section 2.11(b) and is revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such event,
the Borrower shall compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, the loss to any Lender attributable to any such event
shall be deemed to include an amount reasonably determined by such Lender to be equal to the
excess, if any, of (x) the amount of









 



32



interest that such Lender would pay for a deposit equal to the
principal amount of such Loan for the period from the date of such payment, conversion, failure or
assignment to the last day of the then current Interest Period for such Loan (or, in the case of a
failure to borrow, convert or continue, the duration of the Interest Period that would have
resulted from such borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the LIBO Rate for such Interest Period, over (y) the amount of interest that
such Lender would earn on such principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be bid by such Lender (or an
affiliate of such Lender) for dollar deposit from other banks in the eurodollar market at the
commencement of such period. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and
shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as
due on any such certificate within 10 days after receipt thereof.



     SECTION 2.17. Taxes.



     (a) Any and all payments by or on account of any obligation of the Borrower hereunder shall be
made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided
that if any Credit Party shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (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)
the Administrative Agent, LC Bank or Lender (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Credit Party shall make such
deductions and (iii) such Credit Party shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.



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



     (c) The Borrower shall indemnify the Administrative Agent, the LC Bank and each Lender, within
10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(and for any Taxes imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent, the LC Bank or such Lender, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the LC Bank, or by the Administrative Agent on its own
behalf or on behalf of a Lender or the LC Bank, shall be conclusive absent manifest error.



     (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Credit
Party to a Governmental Authority, such Credit Party shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.









 



33


     (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the laws of the jurisdiction in which the Borrower or the Guarantor is located, or any treaty
to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver
to the Borrower (with an additional original or a photocopy, as required under applicable rules and
procedures, to the Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed documentation prescribed
by applicable law as shall be necessary to permit such payments to be made without withholding or
at a reduced rate. Further, in those circumstances as shall be necessary to allow payments
hereunder to be made free of (or at a reduced rate of) withholding tax, each other Lender and the
Administrative Agent, as applicable, shall deliver to Borrower such documentation as the Borrower
may reasonably request in writing.



     (f) Except with the prior written consent of the Administrative Agent, all amounts payable by
a Credit Party hereunder shall be made by such Credit Party in its own name and for its own account
from within the United States by a payor that is a United States person (within the meaning of
Section 7701 of the Code).



     SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-Offs.



     (a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest or fees, or under Section 2.15, 2.16, 2.17 or 11.03, or otherwise) prior to
12:00 noon, New York City time, on the date when due, in immediately available funds, without
set-off or counterclaim. Any amounts received after such time on any date may, in the discretion
of the Administrative Agent, be deemed to have been received on the next succeeding Business Day
for purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 200 Park Avenue, New York, New York, except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 11.03 shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall
be extended to the next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments hereunder shall
be made in Dollars.



     (b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall
be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties.



     (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of the Obligations owing to it
resulting in such Lender receiving payment of a greater proportion of the aggregate amount of such
Obligations and accrued interest thereon than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face value) participations in
the Revolving Loans of, or other Obligations owing to, other Lenders to the









 



34



extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Revolving Loans or other
Obligations, as applicable; provided that (i) if any such participations are purchased and all or
any portion of the payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any of its Loans to any
assignee or participant, other than to the Guarantor, the Borrower or any other Subsidiary or
Affiliate of the Guarantor (as to which the provisions of this paragraph shall apply). The
Borrower and the Guarantor consent to the foregoing and agree, to the extent they may effectively
do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower and the Guarantor rights of set-off and counterclaim
with respect to such participation as fully as if such Lender were a direct creditor of the
Borrower or the affected Guarantor in the amount of such participation.



     (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not
in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the Federal Funds Effective Rate.



     (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.03(c), 2.04(e), 2.05(b) or 2.18(d), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such
Sections until all such unsatisfied obligations are fully paid.



     SECTION 2.19. Mitigation Obligations; Replacement of Lenders.



     (a) Any Lender claiming reimbursement or compensation from the Borrower under either of
Sections 2.15 and 2.17 for any losses, costs or other liabilities shall use reasonable efforts
(including, without limitation, reasonable efforts to designate a different lending office of such
Lender for funding or booking its Loans or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates) to mitigate the amount of such losses, costs and
other liabilities, if such efforts can be made and such mitigation can be accomplished without
such Lender suffering (i) any economic disadvantage for which such Lender does not receive
full indemnity from the Borrower under this Agreement or (ii) otherwise be disadvantageous to such
Lender.









 



35


     (b) In determining the amount of any claim for reimbursement or compensation under Sections
2.15 and 2.17, each Lender will use reasonable methods of calculation consistent with such methods
customarily employed by such Lender in similar situations.



     (c) Each Lender will notify the Borrower either directly or through the Administrative Agent
of any event giving rise to a claim under Section 2.15 or Section 2.17 promptly after the
occurrence thereof which notice shall be accompanied by a certificate of such Lender setting forth
in reasonable detail the circumstances of such claim.



     (d) If any Lender requests compensation under Section 2.15, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, or if any Lender defaults in its obligation to fund Loans hereunder, 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 Section 11.04), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received
the prior written consent of the Administrative Agent and the LC Bank, which consent, in the case
of the Administrative Agent, shall not unreasonably be withheld and, in the case of the LC Bank,
may be given or withheld in the sole discretion of the LC Bank, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of
all other amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and
delegation cease to apply.



ARTICLE III

CONDITIONS




     SECTION 3.01. Conditions Precedent to the Effectiveness of this Agreement. This Agreement
shall not become effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 11.02).



     (a) The Administrative Agent (or its counsel) shall have received from each party thereto
either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of this Agreement.



     (b) The Lenders, the Administrative Agent, the Arrangers and each other Person entitled to the
payment of fees or the reimbursement or payment of expenses, pursuant hereto or to that certain fee
letter dated June 12, 2006, executed and delivered with respect to the credit facility









 



36



provided for herein, shall have received all fees required to be paid by the Effective Date (including, without
limitation, all fees owing on the Effective Date under Section 2.12(e) hereof), and all expenses
for which invoices have been presented on or before the Effective Date.



     (c) The Administrative Agent shall have received certified copies of the resolutions of the
Board of Directors of each of the Guarantor and the Borrower approving this Agreement, and of all
documents evidencing other necessary corporate action and governmental and regulatory approvals
with respect to this Agreement.



     (d) The Administrative Agent shall have received from each of the Borrower and the Guarantor,
to the extent generally available in the relevant jurisdiction, a copy of a certificate or
certificates of the Secretary of State (or other appropriate public official) of the jurisdiction
of its incorporation, dated reasonably near the Effective Date, (i) listing the charters of the
Borrower or the Guarantor, as the case may be, and each amendment thereto on file in such office
and certifying that such amendments are the only amendments to the Borrower’s or the Guarantor’s
charter, as the case may be, on file in such office, and (ii) stating, in the case of the Borrower,
that the Borrower is authorized to transact business under the laws of the jurisdiction of its
place of incorporation, and, in the case of the Guarantor, that the Guarantor is duly incorporated
and in good standing under the laws of the jurisdiction of its place of incorporation.



     (e) (i) The Administrative Agent shall have received a certificate or certificates of each of
the Borrower and the Guarantor, signed on behalf of the Borrower and the Guarantor respectively, by
a the Secretary, an Assistant Secretary or a Responsible Officer thereof, dated the Effective Date,
certifying as to (A) the absence of any amendments to the charter of the Borrower or the Guarantor,
as the case may be, since the date of the certificates referred to in paragraph (d) above, (B) a
true and correct copy of the bylaws of each of the Borrower or the Guarantor, as the case may be,
as in effect on the Effective Date, (C) the absence of any proceeding for the dissolution or
liquidation of the Borrower or the Guarantor, as the case may be, (D) the truth, in all material
respects, of the representations and warranties contained in the Credit Documents to which the
Borrower or the Guarantor is a party, as the case may be, as though made on and as of the Effective
Date, and (E) the absence, as of the Effective Date, of any Default or Event of Default; and (ii)
each of such certifications shall be true.



     (f) The Administrative Agent shall have received a certificate of the Secretary or an
Assistant Secretary of each of the Guarantor and the Borrower certifying the names and true
signatures of the officers of Guarantor or the Borrower, as the case may be, authorized to sign,
and signing, this Agreement and the other Credit Documents to be delivered hereunder on or before
the Effective Date.



     (g) The Administrative Agent shall have received from Schiff Hardin LLP, counsel for the
Guarantor and the Borrower, a favorable opinion, substantially in the form of Exhibit B
hereto and as to such other matters as any Lender through the Administrative Agent may
reasonably request.



     SECTION 3.02. Conditions Precedent to Each Extension of Credit. The obligation of each Lender
to make any Extension of Credit and of the LC Bank to issue, extend (other than an extension
pursuant to an automatic extension provision set forth in the applicable Letter of









 



37



Credit) or amend any Letter of Credit (including the initial Extension of Credit but excluding any conversion or
continuation of any Loan) shall be subject to the satisfaction (or waiver in accordance with
Section 11.02) of each of the following conditions:



     (a) The representations and warranties of the Guarantor and the Borrower set forth in this
Agreement (other than the representation and warranty set forth in Section 4.01(f)) shall be true
and correct in all material respects on and as of the date of such Extension of Credit, except to
the extent that such representations and warranties are specifically limited to a prior date, in
which case such representations and warranties shall be true and correct in all material respects
on and as of such prior date.



     (b) After giving effect to (A) such Extension of Credit, together with all other Extensions of
Credit to be made contemporaneously therewith, and (B) the repayment of any Loans or Unreimbursed
LC Disbursements that are to be contemporaneously repaid at the time such Loan is made, such
Extension of Credit will not result in the sum of the then Total Outstanding Principal exceeding
the Aggregate Commitments.



     (c) Such Extension of Credit will comply with all other applicable requirements of Article II,
including, without limitation Sections 2.01, 2.02, 2.03 and 2.04, as applicable.



     (d) At the time of and immediately after giving effect to such Extension of Credit, no Default
or Event of Default shall have occurred and be continuing.



     (e) In the case of a Revolving Loan, the Administrative Agent shall have timely received a
Borrowing Request; and, in the case of a Letter of Credit issuance, extension (other than an
extension pursuant to an automatic extension provision set forth in the applicable Letter of
Credit) or amendment, a Request for Issuance.



Each Extension of Credit and the acceptance by the Borrower of the benefits thereof shall be deemed
to constitute a representation and warranty by the Borrower on the date thereof as to the matters
specified in paragraphs (a), (b), (c) and (d) of this Section.



ARTICLE IV

REPRESENTATIONS AND WARRANTIES




     SECTION 4.01. Representations and Warranties of the Credit Parties. Each of the Borrower and
the Guarantor represents and warrants as follows:



     (a) Each of the Borrower and the Guarantor is a corporation duly organized, validly existing
and, in the case of the Borrower, authorized to transact business under the laws of the
State of its incorporation, and, in the case of the Guarantor, in good standing under the laws
of the State of its incorporation.



     (b) The execution, delivery and performance by each of the Credit Parties of the Credit
Documents to which it is a party (i) are within such Credit Party’s corporate powers, (ii) have
been duly authorized by all necessary corporate action, (iii) do not contravene (A) such Credit
Party’s charter or by-laws, as the case may be, or (B) any law, rule or regulation, or any material









 



38



Contractual Obligation or legal restriction, binding on or affecting such Credit Party or any
Material Subsidiary, as the case may be, and (iv) do not require the creation of any Lien on the
property of such Credit Party or any Material Subsidiary under any Contractual Obligation binding
on or affecting such Credit Party or any Material Subsidiary.



     (c) No authorization or approval or other action by, and no notice to or filing with, any
Governmental Authority or other Person is required for the due execution, delivery and performance
by any Credit Party of this Agreement or any other Credit Document to which any of them is a party,
except for such as (i) have been obtained or made and that are in full force and effect or (ii) are
not presently required under applicable law and have not yet been applied for.



     (d) Each Credit Document to which any Credit Party is a party is a legal, valid and binding
obligation of such Credit Party, enforceable against such Credit Party in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.



     (e) The consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2006,
and the related statements of income and retained earnings of the Guarantor and its Subsidiaries
for the three months then ended, copies of which have been made available or furnished to each
Lender, fairly present (subject to year-end adjustments) the financial condition of the Guarantor
and its Subsidiaries as at such date and the results of the operations of the Guarantor and its
Subsidiaries for the period ended on such date, all in accordance with generally accepted
accounting principles consistently applied.



     (f) Since December 31, 2005, there has been no material adverse change in such condition or
operations, or in the business, assets, operations, condition (financial or otherwise) or prospects
of any of the Credit Parties or of Columbia.



     (g) There is no pending or threatened action, proceeding or investigation affecting such
Credit Party before any court, governmental agency or other Governmental Authority or arbitrator
that (taking into account the exhaustion of appeals) would have a Material Adverse Effect, or that
(i) purports to affect the legality, validity or enforceability of this Agreement or any promissory
notes executed pursuant hereto, or (ii) seeks to prohibit the ownership or operation, by any Credit
Party or any of their respective Material Subsidiaries, of all or a material portion of their
respective businesses or assets.



     (h) The Guarantor and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock
having an aggregate value in excess of 10% of the value of their consolidated assets, and
no part of the proceeds of any Loan or Letter of Credit hereunder will be used to buy or carry
any Margin Stock.



     (i) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan
that could reasonably be expected to have a Material Adverse Effect.



     (j) Schedule B (Actuarial Information) to the 2005 Annual report (Form 5500 Series) for each
Plan, copies of which have been filed with the Internal Revenue Service and made available or
furnished to each Lender, is complete and accurate and fairly presents the funding status of









 



39



such Plan, and since the date of such Schedule B there has been no adverse change in such funding status
which may reasonably be expected to have a Material Adverse Effect.



     (k) Neither the Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to
incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a
Material Adverse Effect.



     (l) Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case,
that could reasonably be expected to have a Material Adverse Effect.



     (m) No Credit Party is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as amended.



     (n) The Guarantor is a “holding company” within the meaning of the Public Utility Holding
Company Act of 2005 (“PUHCA 2005”). Pursuant to PUHCA 2005, the Guarantor is subject to
the limited jurisdiction of the Federal Energy Regulatory Commission, and any State commission with
jurisdiction to regulate a public utility company in the Guarantor’s holding company system, with
respect to access to the books and records of the Guarantor and its subsidiaries and affiliates



     (o) Each Credit Party has filed all tax returns (Federal, state and local) required to be
filed by it and has paid or caused to be paid all taxes due for the periods covered thereby,
including interest and penalties, except for any such taxes, interest or penalties which are being
contested in good faith and by proper proceedings and in respect of which such Credit Party has set
aside adequate reserves for the payment thereof in accordance with GAAP.



     (p) Each Credit Party and its Subsidiaries are and have been in compliance with all laws
(including, without limitation, all Environmental Laws), except to the extent that any failure to
be in compliance, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect.



     (q) No Subsidiary of any Credit Party is party to, or otherwise bound by, any agreement that
prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party,
by way of dividends, advances, repayment of loans or advances, reimbursements of management or
other intercompany charges, expenses and accruals or other returns on
investment, or any other agreement that restricts the ability of such Subsidiary to make any
payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions
permitted to exist under Section 6.01(e).



     (r) The information, exhibits and reports furnished by the Guarantor or any of its
Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or
compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement
of fact and do not omit to state a material fact or any fact necessary to make the statements
contained therein not misleading in light of the circumstances made.









 



40


ARTICLE V

AFFIRMATIVE COVENANTS




     SECTION 5.01. Affirmative Covenants. So long as any Lender shall have any Commitment hereunder
or any principal of any Loan, Unreimbursed LC Disbursement, interest or fees payable hereunder
shall remain unpaid or any Letter of Credit shall remain outstanding, each of the Credit Parties
will, unless the Required Lenders shall otherwise consent in writing:



     (a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to comply, in all
material respects with all applicable laws, rules, regulations and orders (including, without
limitation, any of the foregoing relating to employee health and safety or public utilities and all
Environmental Laws), unless the failure to so comply could not reasonably be expected to have a
Material Adverse Effect.



     (b) Maintenance of Properties, Etc. Maintain and preserve, and cause each Material Subsidiary
to maintain and preserve, all of its material properties which are used in the conduct of its
business in good working order and condition, ordinary wear and tear excepted, if the failure to do
so could reasonably be expected to have a Material Adverse Effect.



     (c) Payment of Taxes, Etc. Pay and discharge, and cause each of its Subsidiaries to pay and
discharge, before the same shall become delinquent, (i) all taxes, assessments and governmental
charges or levies imposed upon it or upon its property, and (ii) all legal claims which, if unpaid,
might by law become a lien upon its property; provided, however, that neither any Credit Party nor
any of its Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or
claim which is being contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained.



     (d) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to maintain,
insurance with responsible and reputable insurance companies or associations in such amounts and
covering such risks as is usually obtained by companies engaged in similar businesses of comparable
size and financial strength and owning similar properties in the same general areas in which such
Credit Party or such Subsidiary operates, or, to the extent such Credit Party or Subsidiary deems
it reasonably prudent to do so, through its own program of self-insurance.



     (e) Preservation of Corporate Existence, Etc. Preserve and maintain, and cause each Material
Subsidiary to preserve and maintain, its corporate existence, rights (charter and statutory) and
franchises, except as otherwise permitted under this Agreement; provided that that no such Person
shall be required to preserve any right or franchise with respect to which the Board of Directors
of such Person has determined that the preservation thereof is no longer desirable in the conduct
of the business of such Person and that the loss thereof is not disadvantageous in any material
respect to any Credit Party or the Lenders.



     (f) Visitation Rights. At any reasonable time and from time to time, permit the
Administrative Agent or any of the Lenders or any agents or representatives thereof, on not less
than five Business Days’ notice (which notice shall be required only so long as no Default shall be
occurred and be continuing), to examine and make copies of and abstracts from the records and books
of account of, and visit the properties of, such Credit Party or any of its Subsidiaries,









 



41



and to discuss the affairs, finances and accounts of the Credit Parties and their respective Subsidiaries
with any of their respective officers and with their independent certified public accountants;
subject, however, in all cases to the imposition of such conditions as the affected Credit Party or
Subsidiary shall deem necessary based on reasonable considerations of safety and security and
provided that so long as no Default or Event of Default shall have occurred and be continuing, each
Lender will be limited to one visit each year.



     (g) Keeping of Books. (i) Keep, and cause each of its Subsidiaries to keep, proper books of
record and account, in which full and correct entries shall be made of all material financial
transactions and the assets and business of each of the Credit Parties and each of their respective
Subsidiaries, and (ii) maintain, and cause each of its Subsidiaries to maintain, a system of
accounting established and administered in accordance with generally accepted accounting principles
consistently applied.



     (h) Reporting Requirements. Deliver to the Administrative Agent for distribution to the
Lenders:




     (i) as soon as available and in any event within 60 days after the end of each of the
first three quarters of each fiscal year of the Guarantor (or, if earlier, concurrently with
the filing thereof with the Securities and Exchange Commission or any national securities
exchange in accordance with applicable law or regulation), balance sheets of the Guarantor
and its Consolidated Subsidiaries in comparative form as of the end of such quarter and
statements of income and retained earnings of the Guarantor and its Consolidated
Subsidiaries for the period commencing at the end of the previous fiscal year of the
Guarantor and ending with the end of such quarter, each prepared in accordance with
generally accepted accounting principles consistently applied, subject to normal year-end
audit adjustments, certified by the chief financial officer of the Guarantor.




     (ii) as soon as available and in any event within 90 days after the end of each fiscal
year of the Guarantor (or, if earlier, concurrently with the filing thereof with the
Securities and Exchange Commission or any national securities exchange in accordance with
applicable law or regulation), a copy of the audit report for such year for the Guarantor
and its Consolidated Subsidiaries containing financial statements for such year
prepared in accordance with generally accepted accounting principles consistently
applied as reported on by independent certified public accountants of recognized national
standing acceptable to the Required Lenders, which audit was conducted by such accounting
firm in accordance with generally accepted auditing standards;




     (iii) concurrently with the delivery of financial statements pursuant to clauses (i)
and (ii) above or the notice relating thereto contemplated by the final sentence of this
Section 5.01(h), a certificate of a senior financial officer of each of the Guarantor and
the Borrower (A) to the effect that no Default or Event of Default has occurred and is
continuing (or, if any Default or Event of Default has occurred and is continuing,
describing the same in reasonable detail and describing the action that the Guarantor or the
Borrower, as the case may be, has taken and proposes to take with respect thereto), and (B)
in the case of the certificate relating to the Guarantor, setting forth calculations,









 



42



in reasonable detail, establishing Borrower’s compliance, as at the end of such fiscal quarter,
with the financial covenant contained in Article VII;




     (iv) as soon as possible and in any event within five days after the occurrence of each
Default or Event of Default continuing on the date of such statement, a statement of the
chief financial officer of the Borrower setting forth details of such Event of Default or
event and the action which the Borrower has taken and proposes to take with respect thereto;




     (v) promptly after the sending or filing thereof, copies of all reports which the
Guarantor sends to its stockholders, and copies of all reports and registration statements
(other than registration statements filed on Form S-8) that the Guarantor, the Borrower or
any Subsidiary of the Guarantor or the Borrower, files with the Securities and Exchange
Commission;




     (vi) promptly and in any event within 10 days after the Guarantor knows or has reason
to know that any material ERISA Event has occurred, a statement of the chief financial
officer of the Borrower describing such ERISA Event and the action, if any, which the
Guarantor or any affected ERISA Affiliate proposes to take with respect thereto;




     (vii) promptly and in any event within two Business Days after receipt thereof by the
Guarantor (or knowledge being obtained by the Guarantor of the receipt thereof by any ERISA
Affiliate), copies of each notice from the PBGC stating its intention to terminate any Plan
or to have a trustee appointed to administer any Plan;




     (viii) promptly and in any event within five Business Days after receipt thereof by the
Guarantor (or knowledge being obtained by the Guarantor of the receipt thereof by any ERISA
Affiliate) from the sponsor of a Multiemployer Plan, a copy of each notice received by the
Guarantor or any ERISA Affiliate concerning (A) the imposition of material Withdrawal
Liability by a Multiemployer Plan, (B) the reorganization or termination, within the meaning
of Title IV of ERISA, of any Multiemployer Plan or (C) the amount of liability incurred, or
which may be incurred, by the Guarantor or any ERISA Affiliate in connection with any event
described in clause (A) or (B) above;




     (ix) promptly after the Guarantor has knowledge of the commencement thereof, notice of
any actions, suits and proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, affecting the Guarantor or
any Material Subsidiary of the type described in Section 4.01(g);




     (x) promptly after the Guarantor or the Borrower knows of any change in the rating of
the Index Debt by S&P or Moody’s, a notice of such changed rating; and




     (xi) such other information respecting the condition or operations, financial or
otherwise, of the Guarantor or any of its Subsidiaries as any Lender through the
Administrative Agent may from time to time reasonably request.









 



43

Notwithstanding the foregoing, the Credit Parties’ obligations to deliver the documents or
information required under any of clauses (i), (ii) and (v) above shall be deemed to be satisfied
upon (x) the relevant documents or information being publicly available on the Guarantor’s website
or other publicly available electronic medium (such as EDGAR) within the time period required by
such clause, and (y) the delivery by the Guarantor or the Borrower of notice to the Administrative
Agent and the Lenders, within the time period required by such clause, that such documents or
information are so available.




     (i) Use of Proceeds. Use the proceeds of the Loans and the Letters of Credit hereunder for
working capital and other general corporate purposes, including to provide liquidity support for
commercial paper issued by the Borrower.



     (j) Ratings. At all times maintain ratings by both Moody’s and S&P with respect to the Index
Debt.



ARTICLE VI

NEGATIVE COVENANTS




     SECTION 6.01. Negative Covenants. So long as any Lender shall have any Commitment hereunder or
any principal of any Loan, Unreimbursed LC Disbursement, interest or fees payable hereunder shall
remain unpaid or any Letter of Credit shall remain outstanding, no Credit Party will, without the
written consent of the Required Lenders:



     (a) Limitation on Liens. Create or suffer to exist, or permit any of its Subsidiaries (other
than a Utility Subsidiary) to create or suffer to exist, any lien, security interest, or other
charge or encumbrance (collectively, “Liens”) upon or with respect to any of its properties,
whether now owned or hereafter acquired, or collaterally assign for security purposes, or permit
any of its Subsidiaries (other than a Utility Subsidiary) to so assign any right to receive income
in each case to secure or provide for or guarantee the payment of Debt for Borrowed Money of any
Person, without in any such case effectively securing, prior to or concurrently with the creation,
issuance, assumption or guaranty of any such Debt for Borrowed Money, the Obligations (together
with, if the Guarantor shall so determine, any other Debt for Borrowed Money of or
guaranteed by the Guarantor or any of its Subsidiaries ranking equally with the Loans and
Unreimbursed LC Disbursements and then existing or thereafter created) equally and ratably with (or
prior to) such Debt for Borrowed Money; provided, however, that the foregoing restrictions shall
not apply to or prevent the creation or existence of:




     (i) (A) Liens on any property acquired, constructed or improved by the Guarantor or any
of its Subsidiaries (other than a Utility Subsidiary) after the date of this Agreement that
are created or assumed prior to, contemporaneously with, or within 180 days after, such
acquisition or completion of such construction or improvement, to secure or provide for the
payment of all or any part of the purchase price of such property or the cost of such
construction or improvement; or (B) in addition to Liens contemplated by clauses (ii) and
(iii) below, Liens on any property existing at the time of acquisition thereof, provided
that the Liens shall not apply to any property theretofore owned by the Guarantor or any
such Subsidiary other than, in the case of any such construction or improvement, (1)
unimproved real property on which the property so constructed or the









 



44



improvement is located, (2) other property (or improvements thereon) that is an improvement to or is acquired or
constructed for specific use with such acquired or constructed property (or improvement
thereof), and (3) any rights and interests (A) under any agreements or other documents
relating to, or (B) appurtenant to, the property being so constructed or improved or such
other property;




     (ii) existing Liens on any property or indebtedness of a corporation that is merged
with or into or consolidated with any Credit Party or any of its Subsidiaries; provided that
such Lien was not created in contemplation of such merger or consolidation;




     (iii) Liens on any property or indebtedness of a corporation existing at the time such
corporation becomes a Subsidiary of any Credit Party; provided that such Lien was not
created in contemplation of such occurrence;




     (iv) Liens to secure Debt for Borrowed Money of a Subsidiary of a Credit Party to a
Credit Party or to another Subsidiary of the Guarantor;




     (v) Liens in favor of the United States of America, any State, any foreign country or
any department, agency or instrumentality or political subdivision of any such jurisdiction,
to secure partial, progress, advance or other payments pursuant to any contract or statute
or to secure any Debt for Borrowed Money incurred for the purpose of financing all or any
part of the purchase price of the cost of constructing or improving the property subject to
such Liens, including, without limitation, Liens to secure Debt for Borrowed Money of the
pollution control or industrial revenue bond type;




     (vi) Liens on any property (including any natural gas, oil or other mineral property)
to secure all or part of the cost of exploration, drilling or development thereof or to
secure Debt for Borrowed Money incurred to provide funds for any such purpose;




     (vii) Liens existing on the date of this Agreement;




     (viii) Liens for the sole purposes of extending, renewing or replacing in whole or in
part Debt for Borrowed Money secured by any Lien referred to in the foregoing clauses (i)
through (vii), inclusive, or this clause (viii); provided, however, that the principal
amount of Debt for Borrowed Money secured thereby shall not exceed the principal amount of
Debt for Borrowed Money so secured at the time of such extension, renewal or replacement
(which, for purposes of this limitation as it applies to a synthetic lease, shall be deemed
to be (x) the lessor’s original cost of the property subject to such lease at the time of
extension, renewal or replacement, less (y) the aggregate amount of all prior payments under
such lease allocated pursuant to the terms of such lease to reduce the principal amount of
the lessor’s investment, and borrowings by the lessor, made to fund the original cost of the
property), and that such extension, renewal or replacement shall be limited to all or a part
of the property or indebtedness which secured the Lien so extended, renewed or replaced
(plus improvements on such property);









 



45



     (ix) Liens on any property or assets of a Project Financing Subsidiary, or on any
Capital Stock in a Project Financing Subsidiary, in either such case, that secure only a
Project Financing or a Contingent Guaranty that supports a Project Financing; or




     (x) Any Lien, other than a Lien described in any of the foregoing clauses (i) through
(ix), inclusive, to the extent that it secures Debt for Borrowed Money, or guaranties
thereof, the outstanding principal balance of which at the time of creation of such Lien,
when added to the aggregate principal balance of all Debt for Borrowed Money secured by
Liens incurred under this clause (x) then outstanding, does not exceed $150,000,000.



     If at any time any Credit Party or any of its Subsidiaries shall create, issue, assume or
guaranty any Debt for Borrowed Money secured by any Lien and the first paragraph of this Section
6.01(a) requires that the Loans be secured equally and ratably with such Debt for Borrowed Money,
the Borrower shall promptly deliver to the Administrative Agent and each Lender:




     (1) a certificate of a duly authorized officer of the Borrower stating that the
covenant contained in the first paragraph of this Section 6.01(a) has been complied with;
and




     (2) an opinion of counsel acceptable to the Required Lenders to the effect that such
covenant has been complied with and that all documents executed by any Credit Party or any
of its Subsidiaries in the performance of such covenant comply with the requirements of such
covenant.



     (b) Mergers, Etc. Merge or consolidate with or into, or, except in a transaction permitted
under paragraph (c) of this Section, convey, transfer, lease or otherwise dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to any Person, or permit any of its Subsidiaries to do so, except
that:




     (i) any Subsidiary of the Guarantor (other than the Borrower) may merge or consolidate
with or transfer assets to or acquire assets from any other Subsidiary of the Guarantor,
provided that in the case of any such merger, consolidation, or transfer of assets to which
NIPSCO or Columbia is a party, the continuing or surviving Person shall be a Wholly-Owned
Subsidiary of the Guarantor; and




     (ii) the Borrower may merge or consolidate with, or transfer assets to, or acquire
assets from, any other Wholly-Owned Subsidiary of the Guarantor, provided that in the case
of any such merger or consolidation to which the Borrower is not the surviving Person, or
transfer of all or substantially all of the assets of the Borrower to any other Wholly-Owned
Subsidiary of the Guarantor, immediately after giving effect thereto, (A) no Event of
Default shall have occurred and be continuing (determined, for purposes of compliance with
Article VII after giving effect to such transaction, on a pro forma basis as if such
transaction had occurred on the last day of the Guarantor’s fiscal quarter then most
recently ended) and (B) such surviving Person or transferee, as









 



46



applicable, shall have assumed all of the obligations of the Borrower under and in respect of the Credit Documents
by written instrument satisfactory to the Administrative Agent and its counsel in their
reasonable discretion, accompanied by such opinions of counsel and other supporting
documents as they may reasonably require; and




     (iii) any Subsidiary of the Guarantor may merge into the Guarantor or the Borrower or
transfer assets to the Borrower or the Guarantor, provided that in the case of any merger or
consolidation of the Borrower into the Guarantor or transfer of all or substantially all of
the assets of the Borrower to the Guarantor, immediately after giving effect thereto, (A) no
Event of Default shall have occurred and be continuing (determined, for purposes of
compliance with Article VII after giving effect to such transaction, on a pro forma basis as
if such transaction had occurred on the last day of the Guarantor’s fiscal quarter then most
recently ended) and (B) the Guarantor shall have assumed all of the obligations of the
Borrower under and in respect of the Credit Documents by written instrument satisfactory to
the Administrative Agent and its counsel in their reasonable discretion, accompanied by such
opinions of counsel and other supporting documents as they may reasonably require; and




     (iv) the Guarantor or any Subsidiary of the Guarantor may merge, or consolidate with or
transfer all or substantially all of its assets to any other Person; provided that in each
case under this clause (iii), immediately after giving effect thereto, (A) no Event of
Default shall have occurred and be continuing (determined, for purposes of compliance with
Article VII after giving effect to such transaction, on a pro forma basis as if such
transaction had occurred on the last day of the Guarantor’s fiscal quarter then most
recently ended); (B) in the case of any such merger, consolidation or transfer of assets to
which the Borrower is a party, the Borrower shall be the continuing or surviving
corporation; (C) in the case of any such merger, consolidation, or transfer of assets to
which NIPSCO or Columbia is a party, NIPSCO or Columbia, as the case may be, shall be the
continuing or surviving corporation and shall be a Wholly-Owned Subsidiary of the Guarantor;
(D) in the case of any such merger, consolidation or transfer of assets to which the
Guarantor is a party, the Guarantor shall be the continuing or surviving
corporation; and (E) the Index Debt shall be rated at least BBB- by S&P and at least
Baa3 by Moody’s.



     (c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or permit any of
their respective Subsidiaries to sell, lease, transfer or otherwise dispose of (other than in
connection with a transaction authorized by paragraph (b) of this Section) any substantial part of
its assets; provided that the foregoing shall not prohibit any such sale, conveyance, lease,
transfer or other disposition that (i) constitutes realization on a Lien permitted to exist under
Section 6.01(a); or (ii) (A) (1) is for a price not materially less than the fair market value of
such assets, (2) would not materially impair the ability of any Credit Party to perform its
obligations under this Agreement and (3) together with all other such sales, conveyances, leases,
transfers and other dispositions, would have no Material Adverse Effect, or (B) would not result in
the sale, lease, transfer or other disposition, in the aggregate, of more than 10% of the
consolidated total assets of the Guarantor and its Subsidiaries, determined in accordance with
GAAP, on December 31, 2005.









 



47


     (d) Compliance with ERISA. (i) Terminate, or permit any ERISA Affiliate to terminate, any
Plan so as to result in a Material Adverse Effect or (ii) permit to exist any occurrence of any
Reportable Event (as defined in Title IV of ERISA), or any other event or condition, that presents
a material (in the reasonable opinion of the Required Lenders) risk of such a termination by the
PBGC of any Plan, if such termination could reasonably be expected to have a Material Adverse
Effect.



     (e) Certain Restrictions. Permit any of its Subsidiaries (other than, in the case of the
Guarantor, the Borrower) to enter into or permit to exist any agreement that by its terms prohibits
such Subsidiary from making any payments, directly or indirectly, to such Credit Party by way of
dividends, advances, repayment of loans or advances, reimbursements of management or other
intercompany charges, expenses and accruals or other returns on investment, or any other agreement
that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to such
Credit Party; provided that the foregoing shall not apply to prohibitions and restrictions (i)
imposed by applicable law, (ii) (A) imposed under an agreement in existence on the date of this
Agreement, and (B) described on Schedule 6.01(e), (iii) existing with respect to a Subsidiary on
the date it becomes a Subsidiary that are not created in contemplation thereof (but shall apply to
any extension or renewal of, or any amendment or modification expanding the scope of, any such
prohibition or restriction), (iv) contained in agreements relating to the sale of a Subsidiary
pending such sale, provided that such prohibitions or restrictions apply only to the Subsidiary
that is to be sold and such sale is permitted hereunder, (v) imposed on a Project Financing
Subsidiary in connection with a Project Financing, or (vi) that could not reasonably be expected to
have a Material Adverse Effect.



ARTICLE VII

FINANCIAL COVENANT




     So long as any Lender shall have any Commitment hereunder or any principal of any Loan,
Unreimbursed LC Disbursement, interest or fees payable hereunder shall remain unpaid or any Letter
of Credit shall remain outstanding, the Guarantor shall maintain a Debt to Capitalization Ratio of
not more than 0.70 to 1.00.



ARTICLE VIII

EVENTS OF DEFAULT




     SECTION 8.01.
Events of Default. If any of the following events (“Events of Default”) shall
occur and be continuing:



     (a) The Borrower shall fail to pay any principal of any Loan or Unreimbursed LC Disbursement
when the same becomes due and payable or shall fail to pay any interest, fees or other amounts
hereunder within three days after when the same becomes due and payable; or



     (b) Any representation or warranty made by any Credit Party in any Credit Document or by any
Credit Party (or any of its officers) in connection with this Agreement shall prove to have been
incorrect in any material respect when made; or









 



48


     (c) Any Credit Party shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(e), 5.01(f), 5.01(h), 5.01(i), 6.01 or Article VII; or



     (d) Any Credit Party shall fail to perform or observe any term, covenant or agreement
contained in any Credit Document on its part to be performed or observed (other than one identified
in paragraph (a), (b) or (c) above) if the failure to perform or observe such other term, covenant
or agreement shall remain unremedied for thirty days after written notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender; or



     (e) The Guarantor, the Borrower or any of their respective Subsidiaries shall fail to pay any
principal of or premium or interest on any Indebtedness (excluding Non-Recourse Debt) which is
outstanding in a principal amount of at least $50,000,000 in the aggregate (but excluding the
Loans) of the Guarantor, the Borrower or such Subsidiary, as the case may be, when the same becomes
due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Indebtedness; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any such Indebtedness and shall
continue after the applicable grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate, or to permit the acceleration of, the
scheduled maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior
to the stated maturity thereof; or



     (f) Any Credit Party shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against any Credit Party
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in the case of any such
proceeding instituted against any Credit Party (but not instituted by any Credit Party), either
such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, any Credit Party or
for any substantial part of its property) shall occur; or any Credit Party shall take any corporate
action to authorize any of the actions set forth above in this paragraph (f); or



     (g) One or more Subsidiaries of the Guarantor (other than the Borrower) in which the aggregate
sum of (i) the amounts invested by the Guarantor and its other Subsidiaries in the aggregate, by
way of purchases of Capital Stock, Capital Leases, loans or otherwise, and (ii) the amount of
recourse, whether contractual or as a matter of law (but excluding Non-Recourse Debt), available to
creditors of such Subsidiary or Subsidiaries against the Guarantor or any of its other
Subsidiaries, is $100,000,000 or more (collectively, “Substantial Subsidiaries”) shall generally
not pay their respective debts as such debts become due, or shall admit in writing their respective
inability to pay their debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against Substantial Subsidiaries









 



49



seeking to adjudicate them bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of them or their respective debts under
any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar
official for them or for any substantial part of their respective property and, in the case of any
such proceeding instituted against Substantial Subsidiaries (but not instituted by the Guarantor or
any Subsidiary of the Guarantor), either such proceeding shall remain undismissed or unstayed for a
period of 60 days, or any of the actions sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, the Substantial Subsidiaries or for any substantial part of their
respective property) shall occur; or Substantial Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this paragraph (g); or



     (h) Any judgment or order for the payment of money in excess of $50,000,000 shall be rendered
against the Borrower, the Guarantor or any of its other Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or



     (i) Any ERISA Event shall have occurred with respect to a Plan and, 30 days after notice
thereof shall have been given to the Guarantor or the Borrower by the Administrative Agent, (i)
such ERISA Event shall still exist and (ii) the sum (determined as of the date of occurrence of
such ERISA Event) of the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then exist (or, in the case of a
Plan with respect to which an ERISA Event described in clauses (c) through (f) of the definition of
ERISA Event shall have occurred and then exist, the liability related thereto) is equal to or
greater than $10,000,000 (when aggregated with paragraphs (j), (k) and (l) of this Section), and a
Material Adverse Effect could reasonably be expected to occur as a result thereof; or



     (j) The Guarantor or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in an
amount which, when aggregated with all other amounts required to be paid to Multiemployer
Plans by the Guarantor and its ERISA Affiliates as Withdrawal Liability (determined as of the date
of such notification), exceeds $10,000,000 or requires payments exceeding $10,000,000 per annum (in
either case, when aggregated with paragraphs (i), (k) and (l) of this Section), and a Material
Adverse Effect could reasonably be expected to occur as a result thereof; or



     (k) The Guarantor or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, if as a result of such reorganization or termination the
aggregate annual contributions of the Guarantor and its ERISA Affiliates to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the respective plan year of each such
Multiemployer Plan immediately preceding the plan year in which the reorganization or termination
occurs by an amount exceeding $10,000,000 (when aggregated with paragraphs (i),









 



50



(j) and (l) of this Section), and a Material Adverse Effect could reasonably be expected to occur as a result thereof;
or



     (l) The Guarantor or any ERISA Affiliate shall have committed a failure described in Section
302(f)(1) of ERISA and the amount determined under Section 302(f)(3) of ERISA is equal to or
greater than $10,000,000 (when aggregated with paragraphs (i), (j) and (k) of this Section), and a
Material Adverse Effect could reasonably be expected to occur as a result thereof; or



     (m) Any provision of the Credit Documents shall be held by a court of competent jurisdiction
to be invalid or unenforceable against any Credit Party purported to be bound thereby, or any
Credit Party shall so assert in writing; or



     (n) Any Change of Control shall occur;



then, and in any such event, the Administrative Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Commitment of each Lender,
the obligation of the Swingline Lender to make or maintain Swingline Loans and the obligation of
the LC Bank to issue or maintain Letters of Credit hereunder to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request or with the consent of the Required
Lenders, by notice to the Borrower, declare all amounts payable under this Agreement to be
forthwith due and payable, whereupon all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower; provided that in the event of an actual or deemed entry of
an order for relief with respect to any Credit Party under the Federal Bankruptcy Code, (1) the
Commitment of each Lender, the obligation of the Swingline Lender to make or maintain Swingline
Loans and the obligation of the LC Bank to issue or maintain Letters of Credit hereunder shall
automatically be terminated and (2) all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.




     Notwithstanding anything to the contrary contained herein, no notice given or declaration made
by the Administrative Agent pursuant to this Section 8.01 shall affect (i) the obligation of
the LC Bank to make any payment under any outstanding Letter of Credit in accordance with the
terms of such Letter of Credit, (ii) the obligations of each Lender in respect of each such Letter
of Credit or (iii) the obligation of each Lender to purchase its pro rata share of any Swingline
Loans; provided, however, that upon the occurrence and during the continuance of any Event of
Default, the Administrative Agent shall at the request, or may with the consent, of the Required
Lenders, upon notice to the Borrower, require the Borrower to deposit with the Administrative Agent
an amount in the cash account (the “Cash Account”) described below equal to the then current LC
Outstandings. Such Cash Account shall at all times be free and clear of all rights or claims of
third parties. The Cash Account shall be maintained with the Administrative Agent in the name of,
and under the sole dominion and control of, the Administrative Agent, and amounts deposited in the
Cash Account shall bear interest at a rate equal to the rate generally offered by Barclays for
deposits equal to the amount deposited by the Borrower in the Cash Account pursuant to this Section
8.01, for a term to be agreed to between the Borrower and the Administrative Agent. If any
drawings under any Letter of Credit then outstanding or thereafter









 



51



made are not reimbursed in full immediately upon demand or, in the case of subsequent drawings, upon being made, then, in any such
event, the Administrative Agent may apply the amounts then on deposit in the Cash Account, in such
priority as the Administrative Agent shall elect, toward the payment in full of any or all of the
Borrower’s obligations hereunder as and when such obligations shall become due and payable. Upon
payment in full, after the termination of the Letters of Credit, of all such obligations, the
Administrative Agent will repay to the Borrower any cash then on deposit in the Cash Account.



ARTICLE IX

THE ADMINISTRATIVE AGENT




     SECTION 9.01. The Administrative Agent.



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



     (b) 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 such bank and its Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with the any Credit Party or any of such Credit
Party’s Subsidiaries or other Affiliates thereof as if it were not the Administrative Agent
hereunder.



     (c) The Administrative Agent shall not have any duties or obligations except those expressly
set forth herein. Without limiting the generality of the foregoing, (i) the Administrative Agent
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (ii) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing by
the Required Lenders, and (iii) except as expressly set forth herein, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for
the failure to disclose, any information relating to the Borrower, the Guarantor or any of its
other Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any
action taken or not taken by it with the consent or at the request of the Required Lenders (or, if
applicable, all of the Lenders) or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender,
and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (1) any statement, warranty or representation made in or in connection with this Agreement,
(2) the contents of any certificate, report or other document delivered hereunder or in connection
herewith, (3) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (4) the validity, enforceability, effectiveness or genuineness of this
Agreement or any other agreement, instrument or document, or (5) the satisfaction of any condition
set forth in Article III or elsewhere herein, other than to confirm









 



52



receipt of items expressly required to be delivered to the Administrative Agent and the conformity thereof to such express
requirement.



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



     (e) The Administrative Agent may perform any and all its duties and exercise its rights and
powers by or through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.



     (f) Subject to the appointment and acceptance of a successor Administrative Agent as provided
in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the
Credit Parties. Upon any such resignation, the Required Lenders shall have the right, with the
consent of the Borrower (which consent shall not unreasonably be withheld), to appoint a successor.
If no successor shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank, in any event having total assets in excess of $500,000,000 and who shall serve until
such time, if any, as an Agent shall have been appointed as provided above. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to
a successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the Administrative Agent’s
resignation hereunder, the provisions of this Article and Section 11.03 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.



     (g) Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it









 



53



shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder.



     (h) No Lender identified on the signature pages of this Agreement as a “Lead Arranger”,
“Co-Documentation Agent” or “Syndication Agent”, or that is given any other title hereunder other
than “LC Bank”, “Swingline Lender” or “Administrative Agent”, shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than those applicable to
all Lenders as such. Without limiting the generality of the foregoing, no Lender so identified as
a “Lead Arranger”, “Co-Documentation Agent” or “Syndication Agent” or that is given any other title
hereunder, shall have, or be deemed to have, any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on the Lenders so identified in
deciding to enter into this Agreement or in taking or not taking action hereunder.



ARTICLE X

GUARANTY




     SECTION 10.01. The Guaranty.



     (a) The Guarantor, as primary obligor and not merely as a surety, hereby irrevocably,
absolutely and unconditionally guarantees to the Administrative Agent and the Lenders and each of
their respective successors, endorsees, transferees and assigns (each a “Beneficiary” and
collectively, the “Beneficiaries”) the prompt and complete payment by the Borrower, as and when due
and payable, of the Obligations, in accordance with the terms of the Credit Documents. The
provisions of this Article X are sometimes referred to hereinafter as the “Guaranty”.



     (b) The Guarantor hereby guarantees that the Obligations will be paid strictly in accordance
with the terms of the Credit Documents, regardless of any law now or hereafter in effect in any
jurisdiction affecting any such terms or the rights of the Beneficiaries with respect thereto. The
obligations and liabilities of the Guarantor under this Guaranty shall be absolute and
unconditional irrespective of: (i) any lack of validity or enforceability of any of the
Obligations or any Credit Document, or any delay, failure or omission to enforce or agreement not
to enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the
exercise of any right with respect to the foregoing (including, in each case, without
limitation, as a result of the insolvency, bankruptcy or reorganization of any Beneficiary, the
Borrower or any other Person); (ii) any change in the time, manner or place of payment of, or in
any other term in respect of, all or any of the Obligations, or any other amendment or waiver of or
consent to any departure from the Credit Documents or any agreement or instrument relating thereto;
(iii) any exchange or release of, or non-perfection of any Lien on or in any collateral, or any
release, amendment or waiver of, or consent to any departure from, any other guaranty of, or
agreement granting security for, all or any of the Obligations; (iv) any claim, set-off,
counterclaim, defense or other rights that the Guarantor may have at any time and from time to time
against any Beneficiary or any other Person, whether in connection with this Transaction or any
unrelated transaction; or (v) any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any other guarantor or surety in respect of the
Obligations or the Guarantor in respect hereof.









 



54


     (c) The Guaranty provided for herein (i) is a guaranty of payment and not of collection; (ii)
is a continuing guaranty and shall remain in full force and effect until the Commitments and
Letters of Credit have been terminated and the Obligations have been paid in full in cash; and
(iii) shall continue to be effective or shall be reinstated, as the case may be, if at any time any
payment, or any part thereof, of any of the Obligations is rescinded or must otherwise be returned
by any Beneficiary upon or as a result of the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or otherwise, all as though such payment had not been made.



     (d) The obligations and liabilities of the Guarantor hereunder shall not be conditioned or
contingent upon the pursuit by any Beneficiary or any other Person at any time of any right or
remedy against the Borrower or any other Person that may be or become liable in respect of all or
any part of the Obligations or against any collateral security or guaranty therefor or right of
setoff with respect thereto.



     (e) The Guarantor hereby consents that, without the necessity of any reservation of rights
against the Guarantor and without notice to or further assent by the Guarantor, any demand for
payment of any of the Obligations made by any Beneficiary may be rescinded by such Beneficiary and
any of the Obligations continued after such rescission.



     (f) The Guarantor’s obligations under this Guaranty shall be unconditional, irrespective of
any lack of capacity of the Borrower or any lack of validity or enforceability of any other
provision of this Agreement or any other Credit Document, and this Guaranty shall not be affected
in any way by any variation, extension, waiver, compromise or release of any or all of the
Obligations or of any security or guaranty from time to time therefor.



     (g) The obligations of the Guarantor under this Guaranty shall not be reduced, limited,
impaired, discharged, deferred, suspended or terminated by any proceeding or action, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership, reorganization, marshalling of
assets, assignment for the benefit of creditors, composition with creditors, readjustment,
liquidation or arrangement of the Borrower or any similar proceedings or actions, or by any defense
the Borrower may have by reason of the order, decree or decision of any court or administrative
body resulting from any such proceeding or action. Without limiting the
generality of the foregoing, the Guarantor’s liability shall extend to all amounts and
obligations that constitute the Obligations and would be owed by the Borrower, but for the fact
that they are unenforceable or not allowable due to the existence of any such proceeding or action.



     SECTION 10.02. Waivers.



     (a) The Guarantor hereby unconditionally waives: (i) promptness and diligence; (ii) notice of
or proof of reliance by the Administrative Agent or the Lenders upon this Guaranty or acceptance of
this Guaranty; (iii) notice of the incurrence of any Obligation by the Borrower or the renewal,
extension or accrual of any Obligation or of any circumstances affecting the Borrower’s financial
condition or ability to perform the Obligations; (iv) notice of any actions taken by the
Beneficiaries or the Borrower or any other Person under any Credit Document or any other agreement
or instrument relating thereto; (v) all other notices, demands and protests, and all other
formalities of every kind in connection with the enforcement of the Obligations, of









 



55



the obligations of the Guarantor hereunder or under any other Credit Document, the omission of or delay in which,
but for the provisions of this Section 10 might constitute grounds for relieving the Guarantor of
its obligations hereunder; (vi) any requirement that the Beneficiaries protect, secure, perfect or
insure any Lien or any property subject thereto, or exhaust any right or take any action against
the Borrower or any other Person or any collateral; and (vii) each other circumstance, other than
payment of the Obligations in full, that might otherwise result in a discharge or exoneration of,
or constitute a defense to, the Guarantor’s obligations hereunder.



     (b) No failure on the part of any Beneficiary to exercise, and no delay in exercising, any
right, remedy, power or privilege hereunder or under any Credit Document or any other agreement or
instrument relating thereto shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder or under any Credit Document or any
other agreement or instrument relating thereto preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. This Guaranty is in addition to and
not in limitation of any other rights, remedies, powers and privileges the Beneficiaries may have
by virtue of any other instrument or agreement heretofore, contemporaneously herewith or hereafter
executed by the Guarantor or any other Person or by applicable law or otherwise. All rights,
remedies, powers and privileges of the Beneficiaries shall be cumulative and may be exercised
singly or concurrently. The rights, remedies, powers and privileges of the Beneficiaries under
this Guaranty against the Guarantor are not conditional or contingent on any attempt by the
Beneficiaries to exercise any of their rights, remedies, powers or privileges against any other
guarantor or surety or under the Credit Documents or any other agreement or instrument relating
thereto against the Borrower or against any other Person.



     (c) The Guarantor hereby acknowledges and agrees that, until the Commitments have been
terminated and all of the Obligations have been paid in full in cash, under no circumstances shall
it be entitled to be subrogated to any rights of any Beneficiary in respect of the Obligations
performed by it hereunder or otherwise, and the Guarantor hereby expressly and irrevocably waives,
until the Commitments have been terminated and all of the Obligations have been paid in full in
cash, (i) each and every such right of subrogation and any claims, reimbursements, right or right
of action relating thereto (howsoever arising), and (ii) each and every right to contribution,
indemnification, set-off or reimbursement, whether from the Borrower or any other Person now or
hereafter primarily or secondarily liable for any of the Obligations, and whether
arising by contract or operation of law or otherwise by reason of the Guarantor’s execution,
delivery or performance of this Guaranty.



     (d) The Guarantor represents and warrants that it has established adequate means of keeping
itself informed of the Borrower’s financial condition and of other circumstances affecting the
Borrower’s ability to perform the Obligations, and agrees that neither the Administrative Agent nor
any Lender shall have any obligation to provide to the Guarantor any information it may have, or
hereafter receive, in respect of the Borrower.



ARTICLE XI

MISCELLANEOUS




     SECTION 11.01. Notices. Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications provided for









 



56



herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:



     (a) if to any Credit Party, to it at:


801 East 86th Avenue

Merrillville, Indiana 46410

Attention: Treasurer

Telecopier: (219) 647-6060;



with a copy to such Credit Party at:



801 East 86th Avenue

Merrillville, Indiana 46410

Attention: Director Corporate Finance and Treasury

Telecopier: (219) 647-6180;




     (b) if to the Administrative Agent or the LC Bank, to Barclays Bank PLC at:


200 Park Avenue

New York, New York 10166

Attn: Sydney G. Dennis, Power and Utilities Group

Telecopier: (212) 412-6709



with a copy to such party at:



200 Cedar Knolls Road

Whippany, New Jersey 07981

Attn: May Wong, Customer Service Unit

Telephone: (973) 576-3251

Telecopier: (973) 576-3014




     (c) if to any Lender or the Swingline Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.



     Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.



     SECTION 11.02. Waivers; Amendments.



     (a) No failure or delay by the Administrative Agent, the LC Bank or any Lender in exercising
any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of steps to









 



57



enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right
or power. The rights and remedies of the Administrative Agent, the LC Bank and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of this Agreement or consent to any departure by any Credit Party
therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. Without limiting the generality of the foregoing, no Extension of
Credit shall be construed as a waiver of any Default, regardless of whether the Administrative
Agent, the LC Bank or any Lender may have had notice or knowledge of such Default at the time.



     (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower, the Guarantor and
the Required Lenders or by the Borrower, the Guarantor and the Administrative Agent with the
consent of the Required Lenders; provided that no such agreement shall (i) increase the Commitment
of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any
Loan or any Unreimbursed LC Disbursement or reduce the rate of interest thereon, or reduce any fees
or other amounts payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any Loan, any Unreimbursed
LC Disbursement or any interest thereon, or any fees or other amounts payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of
any Commitment, without the written consent of each Lender affected thereby, (iv) change Section
2.18(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) release the Guarantor from its obligations under
the Guaranty without the written consent of each Lender, (vi) waive any of the conditions precedent
to the effectiveness of this Agreement set forth in Section 3.01 without the written consent of
each Lender, (vii) issue any Letter of Credit with an expiry date, or extend the expiry date of any
Letter of Credit to a date, that is later than the Termination Date without the written consent of
each Lender, or (viii) change any of the provisions of this Section or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; provided, further, that no such agreement
shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the LC
Bank hereunder without the prior written consent of the Administrative Agent or the LC Bank, as the
case may be.



     SECTION 11.03. Expenses; Indemnity; Damage Waiver.



     (a) The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent, in connection with the initial syndication of the credit
facilities provided for herein, the preparation and administration of this Agreement or any
amendments, modifications or waivers of the provisions hereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the LC Bank, including the reasonable fees, charges and disbursements of counsel for
the LC Bank, in connection with the execution, delivery, administration, modification









 



58



and amendment of any Letters of Credit to be issued by it hereunder, and (iii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, the LC Bank or any Lender, including the reasonable
fees, charges and disbursements of any counsel for the Administrative Agent, the LC Bank or any
Lender, in connection with the enforcement or protection of its rights in connection with this
Agreement, including its rights under this Section, or in connection with the Loans made and
Letters of Credit issued hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.



     (b) The Borrower shall indemnify the Administrative Agent, the Syndication Agent, each
Co-Documentation Agent, the LC Bank, each Lender and the Swingline Lender, and each Related Party
of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
reasonable expenses, including the reasonable fees, charges and disbursements of any counsel for
any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with,
or as a result of (i) the execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective obligations
hereunder or the consummation of the Transactions or any other transaction contemplated hereby,
(ii) any Loan or Letter of Credit or the use of the proceeds therefrom, (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property now, in the past or hereafter
owned or operated by the Borrower, the Guarantor or any of its other Subsidiaries, or any
Environmental Liability related in any way to the Borrower, the Guarantor or any of its other
Subsidiaries, or (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 and
regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses 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.



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



     (d) To the extent permitted by applicable law, each party hereto shall not assert, and hereby
waives, any claim against each other party, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions or any Loan or the use of the proceeds thereof.



     (e) All amounts due under this Section shall be payable not later than 20 days after written
demand therefor.









 



59


     SECTION 11.04. Successors and Assigns.



     (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby; provided that, except
to the extent permitted pursuant to Section 6.01(b)(iii)(C), no Credit Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
each Lender and the LC Bank (and any attempted assignment or transfer by a Credit Party without
such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the Related Parties of
each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.



     (b) Any Lender may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans and
other Obligations at the time owing to it); provided that (i) except in the case of an assignment
to a Lender or an Affiliate of a Lender, each of the Administrative Agent, the LC Bank and, so long
as no Event of Default is continuing, the Borrower must give its prior written consent to such
assignment (which consent, in the case of the Administrative Agent and the Borrower, shall not
unreasonably be withheld and, in the case of the LC Bank, may be given or withheld in the sole
discretion of the LC Bank), (ii) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment, the
amount of the Commitment of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the Administrative Agent
and, so long as no Event of Default shall be continuing, the Borrower otherwise consent, (iii) each
partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under this Agreement,
(iv) the parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of $3,500, and (v) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (d) of this Section, from and
after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 11.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.



     (c) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in The City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the









 



60



Lenders, and the Commitment of, and principal amount of the Loans and other Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall
be conclusive (absent manifest error), and the Borrower, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.



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



     (e) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrower, the Guarantor and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. Any agreement or instrument pursuant to which a
Lender sells such a participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of any provision of
this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section 11.02(b) that affects
such Participant. Subject to paragraph (f) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this
Section.



     (f) A Participant shall not be entitled to receive any greater payment under Section 2.15 or
2.17 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 2.17 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 2.17(e) as though it were a Lender.



     (g) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.









 



61


     (h) Anything herein to the contrary notwithstanding, each Lender (the “Granting Lender”) shall
have the right, without the prior consent of the Borrower, to grant to a special purpose funding
vehicle (the “SPFV”) that is utilized by such Granting Lender, identified as such in writing from
time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to
provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make
hereunder, provided that (i) nothing herein shall constitute a commitment to make any Loan by any
SPFV or shall relieve its Granting Lender of any obligation of such Granting Lender hereunder or
under any other Credit Document, except to the extent that such SPFV actually funds all or part of
any Loan such Granting Lender is obligated to make hereunder, (ii) if an SPFV elects not to
exercise such option or otherwise fails to provide all or any part of such Loan, such Granting
Lender shall be obligated to make such Loan pursuant to the terms hereof, (iii) the Granting Lender
hereby indemnifies and holds the Administrative Agent harmless from and against any liability,
loss, cost or expense (including for or in respect of Taxes) arising out of such identification and
grant or any transaction contemplated thereby, and (iv) the provisions of this paragraph (h) shall
not impose any increased cost or liability on any Credit Party. The making of a Loan by an SPFV
hereunder shall utilize the Commitment of its Granting Lender to the same extent, and as if, such
Loan were made by such Granting Lender. Each party hereto agrees that no SPFV shall be liable for
any payment under this Agreement or any other Credit Document for which a Lender would otherwise be
liable, for so long as, and to the extent that, its Granting Lender makes such payment. As to any
Loans or portions of Loans made by it, each SPFV shall have all the rights that a Lender making
such Loans or such portions of Loans would have had under this Agreement and otherwise; provided
that (1) its voting rights under this Agreement shall be exercised solely by its Granting Lender
and (2) its Granting Lender shall remain solely responsible to the other parties hereto for the
performance of such SPFV’s obligations under this Agreement, including its obligations in respect
of the Loans or portions of Loans made by it. No additional promissory notes, if any, shall be required to evidence the Loans or portions of
Loans made by a SPFV; and the Granting Lender shall be deemed to hold its promissory note, if any,
as agent for its SPFV to the extent of the Loans or portions of Loans funded by such SPFV. Each
Granting Lender shall act as administrative agent for its SPFV and give and receive notices and
other communications on its behalf. Any payments for the account of any SPFV shall be paid to its
Granting Lender as administrative agent for such SPFV, and neither a Credit Party nor the
Administrative Agent shall be responsible for any Granting Lender’s application of such payments.
In furtherance of the foregoing, each party hereto hereby agrees that, until the date that is one
year and one day after the payment in full of all outstanding senior Debt of any SPFV, it shall not
institute against, or join any other Person in instituting against, such SPFV any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings (or any similar proceedings)
under the laws of the United States of America or any State thereof. In addition, notwithstanding
anything to the contrary contained in this paragraph (h), an SPFV may (1) (A) with notice to, but
without the prior written consent of, the Administrative Agent or the Borrower and without paying
any processing fee therefor, assign all or any portion of its interest in any Loan to its Granting
Lender or (B) with the consent (which consent shall not be unreasonably withheld) of the
Administrative Agent and (if no Event of Default has occurred and is continuing) the Borrower, but
without paying any processing fee therefor, assign all or any portion of its interest in any Loan
to any financial institution providing liquidity or credit facilities to or for the account of such
SPFV to fund the Loans funded by such SPFV or to









 



62



support any securities issued by such SPFV to fund such Loans, and (2) disclose, on a confidential basis, any non-public information relating to Loans
funded by it to any rating agency, commercial paper dealer or provider of a surety, guaranty or
credit or liquidity enhancement to such SPFV. The Borrower shall not be required to pay, or to
reimburse any Granting Lender for, its expenses relating to any SPFV identified by such Granting
Lender pursuant to this paragraph (h).



     SECTION 11.05. Survival. All covenants, agreements, representations and warranties made by
the Borrower and the Guarantor herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been relied upon by the
other parties hereto and shall survive the execution and delivery of this Agreement and the making
of any Loans. The provisions of Sections 2.15, 2.16, 2.17, 10.01(c)(iii) and 11.03 and Article IX
shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the
Commitments or the termination of this Agreement or any provision hereof.



     SECTION 11.06. Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement, the commitment letter relating to the credit facility provided hereby (to the
extent provided therein) and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in
Section 3.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.



     SECTION 11.07. Severability. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.



     SECTION 11.08. Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender or the LC Bank or any Affiliate of either is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and other indebtedness
at any time owing by such Lender to or for the credit or the account of any Credit Party against
any of and all the Obligations now or hereafter existing under this Agreement held by such Lender
or the LC Bank, irrespective of whether or not such Lender or the LC Bank shall have made any
demand under this Agreement and although such Obligations may be unmatured.









 



63



The rights of each Lender and the LC Bank under this Section are in addition to other rights and remedies (including
other rights of setoff) which such Lender may have.



     SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of Process.



     (a) This Agreement shall be construed in accordance with and governed by the laws of the State
of New York.



     (b) Each Credit Party hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in
New York County and of the United States District Court of the Southern District of New York, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right
that the Administrative Agent or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement against any Credit Party or its properties in the courts of any
jurisdiction.



     (c) Each Credit Party hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement in any
court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.



     (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 11.01. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.









 



64


     SECTION 11.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.



     SECTION 11.11. Headings. Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this Agreement.



     SECTION 11.12. Confidentiality. Each of the Administrative Agent and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that Information may be
disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any regulatory authority,
(c) to the extent required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with the consent of the
Borrower or (h) to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the Administrative Agent or any
Lender on a nonconfidential basis from a source other than a Credit Party or any Subsidiary of a
Credit Party. For the purposes of this Section, “Information” means all information received from any Credit Party or any
Subsidiary of a Credit Party relating to a Credit Party or any Subsidiary of a Credit Party or its
respective businesses, other than any such information that is available to the Administrative
Agent or any Lender on a nonconfidential basis prior to disclosure by any Credit Party or any
Subsidiary of a Credit Party; provided that, in the case of information received from any Credit
Party or any Subsidiary of a Credit Party after the Effective Date, 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.



     SECTION 11.13. USA PATRIOT Act. Each Lender hereby notifies the Credit Parties 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









 



65



that identifies the Credit Parties, which information includes the name and address of the Credit Parties and other
information that will allow such Lender to identify the Credit Parties in accordance with the Act.



     SECTION 11.14. Amendment and Restatement. It is the express intent of the parties
hereto that this Agreement (i) shall re-evidence the Borrower’s and the Guarantor’s indebtedness
under the Existing Credit Agreement, (ii) is entered into in substitution for, and not in payment
of, the obligations of the Borrower and the Guarantor under the Existing Credit Agreement, and
(iii) is in no way intended to constitute a novation of any of the Borrower’s and the Guarantor’s
indebtedness which was evidenced by the Existing Credit Agreement or any of the other “Credit
Documents” (as such term is defined in the Existing Credit Agreement before giving effect to this
Agreement). On the Effective Date, the Administrative Agent shall administer a reallocation of the
aggregate Exposure ratably among the Lenders in accordance with their respective Applicable
Percentages after giving effect to this Agreement.









 




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



	 	 	 	 	 
	 	NISOURCE FINANCE CORP., as Borrower

 	 
	 	By:  	/s/ David J. Vajda
 	 
	 	 	Name:  	David J. Vajda 	 
	 	 	Title:  	Vice President and Treasurer

 	 
	 	Federal Tax Identification Number: 35-2105468	 
	 
	 	NISOURCE INC., as Guarantor

 	 
	 	By:  	/s/ David J. Vajda
 	 
	 	 	Name:  	David J. Vajda 	 
	 	 	Title:  	Vice President and Treasurer

 	 
	 	Federal Tax Identification Number: 35-2108964	 
	 



Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	BARCLAYS BANK PLC, as a Lead Arranger and Lender, as Swingline Lender, as LC Bank and as Administrative

Agent

 	 
	 	By:  	/s/ Sydney G. Dennis
 	 
	 	 	Name:  	Sydney G. Dennis 	 
	 	 	Title:  	Director 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	CREDIT SUISSE, ACTING THROUGH ITS CAYMAN ISLANDS BRANCH, as a Lead Arranger and Lender and as Syndication Agent

 	 
	 	By:  	/s/ David Dodd
 	 
	 	 	Name:  	David Dodd 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	/s/ Mikhail Faybusovich
 	 
	 	 	Name:  	Mikhail Faybusovich 	 
	 	 	Title:  	Associate 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as a Lender and as a Co-Documentation Agent

 	 
	 	By:  	/s/ Nancy R. Barwig
 	 
	 	 	Name:  	Nancy R. Barwig 	 
	 	 	Title:  	Vice President 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., CHICAGO
BRANCH (F/K/A THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, as a Lender and as a Co-Documentation
Agent

 	 
	 	By:  	/s/ Tsuguyuki Umene
 	 
	 	 	Name:  	Tsuguyuki Umene 	 
	 	 	Title:  	Deputy General Manager 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	CITICORP USA, INC., as a Lender and as a Co-Documentation Agent

 	 
	 	By:  	/s/ Stuart J. Murray
 	 
	 	 	Name:  	Stuart J. Murray 	 
	 	 	Title:  	Director 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	BNP PARIBAS, as a Lender

 	 
	 	By:  	/s/ Mark Renaud
 	 
	 	 	Name:  	Mark Renaud 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                                              /s/ Francis Delaney
 	 
	 	 	Name:  	Francis Delaney 	 
	 	 	Title:  	Managing Director 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	COMMERZBANK AG NEW YORK AND GRAND CAYMAN BRANCHES, as
a Lender

 	 
	 	By:  	/s/ Andrew Campbell
 	 
	 	 	Name:  	Andrew Campbell 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	 	 
	 	By:  	                                              /s/ Barbara Stacks
 	 
	 	 	Name:  	Barbara Stacks 	 
	 	 	Title:  	Assistant Vice President 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender

 	 
	 	By:  	/s/ Marcus Tarkington
 	 
	 	 	Name:  	Marcus Tarkington 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                                              /s/ Rainer Meier
 	 
	 	 	Name:  	Rainer Meier 	 
	 	 	Title:  	Vice President 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as a Lender

 	 
	 	By:  	/s/ Thomas R. Brady
 	 
	 	 	Name:  	Thomas R. Brady 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                                              /s/ Brian M. Smith
 	 
	 	 	Name:  	Brian M. Smith 	 
	 	 	Title:  	Managing Director 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	BMO CAPITAL MARKETS FINANCING, INC. (fka HARRIS NESBITT FINANCING, INC.), as a Lender

 	 
	 	By:  	/s/ James Whitmore
 	 
	 	 	Name:  	James Whitmore 	 
	 	 	Title:  	Managing Director 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Paul J. Pace
 	 
	 	 	Name:  	Paul J. Pace 	 
	 	 	Title:  	Assistant Vice President 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD., NEW YORK BRANCH, as a Lender

 	 
	 	By:  	/s/ Raymond Ventura
 	 
	 	 	Name:  	Raymond Ventura 	 
	 	 	Title:  	Deputy General Manager 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND plc, as a Lender

 	 
	 	By:  	/s/ Paul McDonagh
 	 
	 	 	Name:  	Paul McDonagh 	 
	 	 	Title:  	Managing Director 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Shawn Young
 	 
	 	 	Name:  	Shawn Young 	 
	 	 	Title:  	Vice President 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

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

 	 
	 	By:  	/s/ Gabriela Millhorn
 	 
	 	 	Name:  	Gabriela Millhorn 	 
	 	 	Title:  	Senior Vice President 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	THE NORTHERN TRUST COMPANY, as a Lender

 	 
	 	By:  	/s/ Thomas R. Hasenauer
 	 
	 	 	Name:  	Thomas R. Hasenauer 	 
	 	 	Title:  	Vice President 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ W.J. Bowne
 	 
	 	 	Name:  	W.J. Bowne 	 
	 	 	Title:  	Managing Director 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ James N. Devries
 	 
	 	 	Name:  	James N. Devries 	 
	 	 	Title:  	Senior Vice President 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement











 



 

	 	 	 	 	 
	 	The undersigned Departing Lender hereby
acknowledges and agrees that, from and after
the Effective Date, it is no longer a party
to the Existing Credit Agreement.



THE BANK OF NOVA SCOTIA, as a Departing Lender

 	 
	 	By:  	/s/ Thane A. Rattew
 	 
	 	 	Name:  	Thane A. Rattew 	 
	 	 	Title:  	Managing Director 	 
	 




Signature Page to

Amended and Restated Revolving Credit Agreement





 









 







Annex A




PRICING GRID




     The “Applicable Rate” for any day with respect to any Eurodollar Loan, ABR Loan, Facility
Fee, Utilization Margin or LC Risk Participation Fee, as the case may be, is the percentage set
forth below in the applicable row under the column corresponding to the Status that exists on such
day:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Status	 	Level I	 	Level II	 	Level III	 	Level IV	 	Level V
	Eurodollar
Revolving Loans
(basis points)
	 	 	19.0	 	 	 	27.0	 	 	 	35.0	 	 	 	42.5	 	 	 	65.0	 
	ABR Loans
(basis points)
	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 	 	 	0	 
	Facility Fee
(basis points)
	 	 	6.0	 	 	 	8.0	 	 	 	10.0	 	 	 	12.5	 	 	 	17.5	 
	Utilization
Margin (basis
points)
	 	 	5.0	 	 	 	5.0	 	 	 	5.0	 	 	 	10.0	 	 	 	10.0	 
	LC Risk
Participation Fee
(basis points)
	 	 	19.0	 	 	 	27.0	 	 	 	35.0	 	 	 	42.5	 	 	 	65.0	 






     For purposes of this Pricing Grid, the following terms have the following meanings (as
modified by the provisos below):



     “Level I Status” exists at any date if, at such date, the Index Debt is rated either A- or
higher by S&P or A3 or higher by Moody’s.



     “Level II Status” exists at any date if, at such date, the Index Debt is rated either BBB+ by
S&P or Baa1 by Moody’s.



     “Level III Status” exists at any date if, at such date, the Index Debt is rated either BBB by
S&P or Baa2 by Moody’s.



     “Level IV Status” exists at any date if, at such date, the Index Debt is rated either BBB- by
S&P or Baa3 by Moody’s.



     “Level V Status” exists at any date if, at such date, no other Status exists.



     “Status” refers to the determination of which of Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status exists at any date.


The credit ratings to be utilized for purposes of this Pricing Grid are those assigned to the Index
Debt, and any rating assigned to any other debt security of the Borrower shall be disregarded. The
rating in effect at any date is that in effect at the close of business on such date.



Provided, that the applicable Status shall change as and when the applicable Index Debt ratings
change.




Annex A-1









 







Provided further, that if the Index Debt is split-rated, the applicable Status shall be determined
on the basis of the higher of the two ratings then applicable; provided further, that, if the Index
Debt is split-rated by two or more levels, the applicable Status shall instead be determined on the
basis of the rating that is one level above the lower of the two ratings then applicable.



Provided further, that if both Moody’s and S&P, or their successors as applicable, shall have
ceased to issue or maintain such ratings, then the applicable Status shall be Level V.




Annex A-2









 





EXHIBIT A




FORM OF ASSIGNMENT AND ACCEPTANCE




     Reference is made to the Amended and Restated Revolving Credit Agreement dated as of July 7,
2006, among NiSource Finance Corp., a Delaware corporation, as Borrower (the “Borrower”), NiSource
Inc., a Delaware corporation (“NiSource”), as Guarantor (the “Guarantor”), the Co-Documentation
Agents, Lead Arrangers and other Lenders from time to time party thereto, Credit Suisse, as
Syndication Agent, and Barclays Bank PLC, as LC Bank and as Administrative Agent thereunder.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.



     The Assignor named on Schedule 1 hereto (the “Assignor”) and the Assignee named on Schedule 1
hereto (the “Assignee”) agree as follows:



     1. The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the
Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor without
recourse to the Assignor, as of the Effective Date (as defined below), an interest as specified in
Schedule 1 hereto (the “Assigned Interest”) in and to the Assignor’s rights and obligations under
the Credit Agreement as described on Schedule 1 hereto (individually, an “Assigned Facility”;
collectively, the “Assigned Facilities”), in a principal amount for each Assigned Facility as set
forth on Schedule 1 hereto.



     2. The Assignor (a) makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in connection with the Credit
Agreement or any other Credit Document or with respect to the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument
or document furnished pursuant thereto, other than that it is the legal and beneficial owner of the
Assigned Interest, that it has not created any adverse claim upon the Assigned Interest and that
the Assigned Interest is free and clear of any such adverse claim; and (b) makes no representation
or warranty and assumes no responsibility with respect to the financial condition of the Borrower,
the Guarantor or any of their respective Subsidiaries or the performance or observance by the
Borrower or the Guarantor of any of their respective obligations under the Credit Agreement or any
other Credit Document.



     3. The Assignee (a) represents and warrants that it is legally authorized to enter into the
Assignment and Acceptance; (b) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to in Section 4.01 thereof and the most
recent financial statements referred to in Section 5.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (c) agrees that it will, independently and without reliance upon
the Assignor, the Administrative Agent, the Syndication Agent, the LC Bank, any Co-Documentation
Agent or any other Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking action under the
Credit Agreement or any other Credit Document; (d) appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to



Exhibit A-1









 







exercise such powers and discretion under the Credit Agreement and any other Credit Document
as are delegated to the Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of the Credit Agreement
and will perform in accordance with its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender.



     4. The effective date of this Assignment and Acceptance shall be as specified on Schedule 1
hereto (the “Effective Date”). Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent for acceptance by it and recording by the Administrative
Agent pursuant to Section 11.04 of the Credit Agreement, effective as of the Effective Date (which
shall not, unless otherwise agreed to by the Administrative Agent, be earlier than five Business
Days after the execution hereof).



     5. Upon such acceptance and recording, from and after the Effective Date, the Administrative
Agent shall make all payments with respect to the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignee. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Administrative Agent for periods prior to the
Effective Date or with respect to the making of this assignment directly between themselves.



     6. From and after the Effective Date, (a) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have (in addition to any
rights and obligations theretofore held by it) the rights and obligations of a Lender thereunder
and shall be bound by the provisions thereof, and (b) the Assignor shall, to the extent provided in
this Assignment and Acceptance, relinquish its rights and be released from its obligations under
the Credit Agreement (other than any such rights which expressly survive the termination thereof).



     7. This Agreement may be executed in as many counterparts as may be deemed necessary or
convenient, and by the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed an original, but all such counterparts shall constitute but one and the
same agreement. Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.



     8. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE INTERNAL LAWS OF THE STATE OF
NEW YORK. THIS AGREEMENT IS SUBJECT TO SECTION 11.09 (CHOICE OF FORUM AND SERVICE OF PROCESS) AND
SECTION 11.10 (WAIVER OF TRIAL BY JURY) OF THE CREDIT AGREEMENT. THE PROVISIONS OF SUCH SECTIONS
11.09 AND 11.10 OF THE CREDIT AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE IN FULL.



     IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance to be
executed as of the date first above written by their respective duly authorized officers on
Schedule 1 hereto.



Exhibit A-2









 





SCHEDULE 1

TO

ASSIGNMENT AND ACCEPTANCE




Name of Assignor:




Name of Assignee:




Effective Date of Assignment:




	 	 	 	 	 	 	 	 	 
	Facility Assigned	 	Principal Amount Assigned	 	 	Applicable Percentage Assigned*	 
	 
	 	 	 	 	 	 	 	 






The terms set forth above and in the Assignment and Acceptance to which this Schedule 1 is
attached are hereby agreed to:



[Consented to and ]#/ Accepted for the

Recordation in the Register:




______________, as Assignor




	 	 	 
	By:
	 	 
	 

	 	 
	 

	 	Name:
	 

	 	Title:






BARCLAYS BANK PLC,

As Administrative Agent and LC Bank




	 	 	 
	By:
	 	 
	 

	 	 
	 

	 	Name:
	 

	 	Title:






______________, as Assignee




	 	 	 
	By:
	 	 
	 

	 	 
	 

	 	Name:
	 

	 	Title:








 




			
	 	 	* If applicable.
	 
	 	 	# To be completed only if consents are required under Section 11.04(b).





Exhibit A-3









 





	 	 	 
	[Consented to]:
	 
	 	 
	NISOURCE FINANCE CORP.,
	As Borrower
	 
	 	 
	By:
	 	 
	 

	 	 
	 

	 	Name:
	 

	 	Title:






Exhibit A-4









 





EXHIBIT B




FORM OF OPINION OF SCHIFF HARDIN LLP




 









 





Schedule 2.01

(Credit Agreement)




Names, Addresses, Allocation of Aggregate Commitment, and Applicable Percentages of Banks




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Domestic Lending	 	Eurodollar Lending	 	 	 	 	 	Applicable
	Bank Name	 	Office	 	Office	 	Commitment	 	Percentage
	Barclays Bank PLC
	 	Barclays Bank PLC	 	Barclays Bank PLC,	 	$	142,500,000	 	 	 	9.50	%
	 
	 	200 Park Avenue	 	Nassau Branch	 	 	 	 	 	 	 	 
	 
	 	New York, NY  10166	 	c/o Barclays Bank PLC	 	 	 	 	 	 	 	 
	 
	 	 	 	200 Park Avenue	 	 	 	 	 	 	 	 
	 
	 	 	 	New York, NY  10166	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Credit Suisse
	 	One Madison Avenue	 	Same	 	$	142,500,000	 	 	 	9.50	%
	 
	 	New York, NY 10010	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	The Bank of Tokyo-
	 	227 W. Monroe Street	 	Same	 	$	105,000,000	 	 	 	7.00	%
	Mitsubishi UFJ, Ltd.,
	 	Suite 2300	 	 	 	 	 	 	 	 	 	 
	Chicago Branch
	 	Chicago, IL  60606	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Citicorp USA, Inc.
	 	399 Park Avenue,	 	Same	 	$	105,000,000	 	 	 	7.00	%
	 
	 	16th Floor	 	 	 	 	 	 	 	 	 	 
	 
	 	New York, NY  10043	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase
	 	10 S. Dearborn	 	Same	 	$	105,000,000	 	 	 	7.00	%
	Bank, N.A.
	 	Chicago, IL 60603	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Bank of America,
	 	100 North Tryon Street	 	Same	 	$	80,000,000	 	 	 	5.33	%
	N.A.
	 	Charlotte, NC  28255	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	BNP Paribas
	 	787 7th Avenue	 	Same	 	$	80,000,000	 	 	 	5.33	%
	 
	 	New York, NY 10019	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Deutsche Bank AG
	 	60 Wall Street	 	same	 	$	80,000,000	 	 	 	5.33	%
	New York Branch
	 	New York, NY  10005	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dresdner Bank AG,
	 	1301 Avenue of the	 	Same	 	$	80,000,000	 	 	 	5.33	%
	New York and
	 	Americas	 	 	 	 	 	 	 	 	 	 
	Grand Cayman
	 	New York, NY  10019	 	 	 	 	 	 	 	 	 	 
	Branches
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	BMO Capital
	 	115 S. LaSalle	 	Same	 	$	80,000,000	 	 	 	5.33	%
	Markets Financing,
	 	17th Floor	 	 	 	 	 	 	 	 	 	 
	Inc.
	 	Chicago, IL  60603	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Keybank National
	 	127 Public Square	 	Same	 	$	80,000,000	 	 	 	5.33	%
	Association
	 	Cleveland, OH  44114	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	The Royal Bank of
	 	101 Park Avenue	 	Same	 	$	80,000,000	 	 	 	5.33	%






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Domestic Lending	 	Eurodollar Lending	 	 	 	 	 	Applicable
	Bank Name	 	Office	 	Office	 	Commitment	 	Percentage
	Scotland plc
	 	6th Floor	 	 	 	 	 	 	 	 	 	 
	 
	 	New York, NY  10178	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Wachovia Bank,
	 	201 South College Street,	 	Same	 	$	80,000,000	 	 	 	5.33	%
	National Association
	 	C89	 	 	 	 	 	 	 	 	 	 
	 
	 	Charlotte, NC 28288	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Mizuho Corporate
	 	1251 Avenue of the	 	Same	 	$	60,000,000	 	 	 	4.00	%
	Bank, Ltd., New
	 	Americas	 	 	 	 	 	 	 	 	 	 
	York Branch
	 	New York, NY 10020	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Commerzbank AG
	 	2 World Financial Center	 	Same	 	$	50,000,000	 	 	 	3.33	%
	New York and
	 	225 Liberty Street	 	 	 	 	 	 	 	 	 	 
	Grand Cayman
	 	New York, NY  10281	 	 	 	 	 	 	 	 	 	 
	Branches
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	The Northern Trust
	 	50 S. LaSalle Street	 	Same	 	$	50,000,000	 	 	 	3.33	%
	Company
	 	Chicago, IL  60675	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	PNC Bank, National
	 	One PNC Plaza,	 	Same	 	$	50,000,000	 	 	 	3.33	%
	Association
	 	529 Fifth Avenue	 	 	 	 	 	 	 	 	 	 
	 
	 	Pittsburgh, PA 15222	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	U.S. Bank National
	 	209 S. LaSalle Street	 	Same	 	$	50,000,000	 	 	 	3.33	%
	Association
	 	Suite 300	 	 	 	 	 	 	 	 	 	 
	 
	 	Chicago, IL  60604	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL
	 	 	 	 	 	$	1,500,000,000	 	 	 	100	%






Swingline Lender:




	 	 	 	 	 	 	 
	Bank Name	 	Lending Office	 	Swingline Commitment*
	Barclays Bank PLC

	 	200 Park Avenue	 	$	250,000,000	 
	 

	 	New York, NY 10166
	 	 	 	 








 




			
	*	 	Swingline Commitments expressed as totals for this Agreement. Swingline Commitments are
within, and not in addition to, the Swingline Lender’s Commitment as a Lender.





 









 





SCHEDULE 2.04




TRANSITIONAL LETTERS OF CREDIT




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	LETTER OF	 	ISSUER	 	APPLICANT	 	ISSUE	 	EXPIRY	 	BENEFICIARY	 	OUTSTANDING
	CREDIT NO.	 	 	 	 	 	DATE	 	DATE	 	 	 	BALANCE
	SB00095
	 	Barclays Bank PLC	 	NiSource Finance Corp.	 	04/17/01	 	03/15/07	 	Columbia Insurance Corp Ltd.	 	$	2,000,000.00	 
	SB00116
	 	Barclays Bank PLC	 	NiSource Finance Corp.	 	08/29/01	 	03/15/07	 	Travelers Indemnity Co.	 	$	13,538,500.00	 
	SB00246
	 	Barclays Bank PLC	 	NiSource Finance Corp.	 	07/02/03	 	03/15/07	 	Liberty Mutual Insurance Co.	 	$	1,950,000.00	 
	SB00399
	 	Barclays Bank PLC	 	NiSource Finance Corp	 	07/25/05	 	07/01/07	 	Ace American Insurance Company	 	$	7,200,000	 






 









 





SCHEDULE 6.01(e)




EXISTING AGREEMENTS





	1.	 	Note Assumption and Exchange Agreement dated as of June 11, 2003 by Whiting Leasing LLC and
the noteholders that are a party thereto.
	 
	2.	 	Receivables Purchase Agreements and Receivables Sale Agreements of Columbia of Ohio
Receivables Corporation and NIPSCO Receivables Corporation.