Exhibit
10.1
 
 $150,000,000
  TERM
LOAN CREDIT AGREEMENT
  among
  TEXAS-NEW MEXICO POWER
COMPANY,
 as the
Borrower,
 
 THE
LENDERS IDENTIFIED HEREIN,
  AND
  JPMORGAN
CHASE BANK, N.A.,
 as
Administrative Agent
 
 DATED AS
OF MARCH 7, 2008
 
 
 
 J.P.
MORGAN SECURITIES INC.
 and
 UNION
BANK OF CALIFORNIA, N.A.,
 as Joint
Lead Arrangers and Co-Book Managers
    
  TABLE OF
CONTENTS
 
 SECTION
      1
              DEFINITIONS
      AND ACCOUNTING TERMS
              11.1
              Definitions.
              11.2
              Computation
      of Time Periods and Other Definitional Provisions.
              141.3
              Accounting
      Terms/Calculation of Financial Covenants.
              141.4
              Time.
              141.5
              Rounding
      of Financial Covenants.
              141.6
              References
      to Agreements and Requirement of Laws.
              141.7
              Letter
      of Credit Amounts.
              14SECTION
      2
              CREDIT
      FACILITY
              152.1
              Revolving
      Loans.
              152.2
              Letter
      of Credit Subfacility.
              162.3
              Continuations
      and Conversions.
              162.4
              Minimum
      Amounts.
              162.5
              Extension
      Option.
              162.6
              Designation
      and Termination of Subsidiary Borrower.
              172.7
              Evidence
      of Debt.SECTION
      3
              GENERAL
      PROVISIONS APPLICABLE TO REVOLVING LOANS
              173.1
              Interest.
              173.2
              Payments
      Generally.
              183.3
              Prepayments.
              193.4
              Fees.
              193.5
              Payment
      in full at Maturity.
              203.6
              Computations
      of Interest and Fees.
              203.7
              Pro
      Rata Treatment.
              213.8
              Sharing
      of Payments.
              213.9
              Capital
      Adequacy.
              223.10
              Eurodollar
      Provisions.
              223.11
              Illegality.
              223.12
              Requirements
      of Law; Reserves on Eurodollar Loans.
              223.13
              Taxes.
              233.14
              Compensation.
              253.15
              Determination
      and Survival of Provisions.
              26SECTION
      4
              CONDITIONS
      PRECEDENT TO CLOSING
              264.1
              Closing
      Conditions.
              26SECTION
      5
              CONDITIONS
      TO ALL EXTENSIONS OF CREDIT
              285.1
              Funding
      Requirements.
              28SECTION
      6
              REPRESENTATIONS
      AND WARRANTIES
              296.1
              Organization
      and Good Standing.
              296.2
              Due
      Authorization.
              296.3
              No
      Conflicts.
              296.4
              Consents.
              296.5
              Enforceable
      Obligations.
              306.6
              Financial
      Condition.
              306.7
              No
      Material Change.
              306.8
              No
      Default.
              30
   i
  6.9
              Litigation.
              306.10
              Taxes.
              306.11
              Compliance
      with Law.
              316.12
              ERISA.
              316.13
              Use
      of Proceeds; Margin Stock.
              326.14
              Government
      Regulation.
              326.15
              Solvency.
              326.16
              Disclosure.
              326.17
              Environmental
      Matters.
              326.18
              Material
      Leases.
              326.19
              Material
      Lease Interest Payments and Discount Rate.
              32SECTION
      7
              AFFIRMATIVE
      COVENANTS
              337.1
              Information
      Covenants.
              337.2
              Financial
      Covenants.
              357.3
              Preservation
      of Existence and Franchises.
              357.4
              Books
      and Records.
              357.5
              Compliance
      with Law.
              357.6
              Payment
      of Taxes and Other Indebtedness.
              357.7
              Insurance.
              367.8
              Performance
      of Obligations.
              367.9
              Use
      of Proceeds.
              367.10
              Audits/Inspections.
              367.11
              Ownership
      of Certain Subsidiaries.
              36SECTION
      8
              NEGATIVE
      COVENANTS
              368.1
              Nature
      of Business.
              368.2
              Consolidation
      and Merger.
              378.3
              Sale
      or Lease of Assets.
              378.4
              Affiliate
      Transactions.
              378.5
              Liens.
              378.6
              Accounting
      Changes.
              388.7
              Burdensome
      Agreements.
              38SECTION
      9
              EVENTS
      OF DEFAULT
              389.1
              Events
      of Default.
              389.2
              Acceleration;
      Remedies.
              409.3
              Allocation
      of Payments After Event of Default.
              41SECTION
      10
              AGENCY
      PROVISIONS
              4210.1
              Appointment
      and Authority.
              4210.2
              Rights
      as a Lender.
              4210.3
              Exculpatory
      Provisions.
              4210.4
              Reliance
      by Administrative Agent.
              4310.5
              Delegation
      of Duties.
              4310.6
              Resignation
      of Administrative Agent.
              4410.7
              Non-Reliance
      on Administrative Agent and Other Lenders.
              4410.8
              No
      Other Duties, Etc.
              4410.9
              Administrative
      Agent May File Proofs of Claim.
              44
   ii
  SECTION
      11
              MISCELLANEOUS
              4511.1
              Notices;
      Effectiveness; Electronic Communication.
              4511.2
              Right
      of Set-Off.
              4711.3
              Successors
      and Assigns.
              4711.4
              No
      Waiver; Remedies Cumulative.
              5011.5
              Attorney
      Costs, Expenses, Taxes and Indemnification by Borrower.
              5011.6
              Amendments,
      Etc.
              5211.7
              Counterparts.
              5311.8
              Headings.
              5311.9
              Survival
      of Indemnification and Representations and Warranties.
              5311.10
              Governing
      Law; Venue; Service.
              5311.11
              Waiver
      of Jury Trial; Waiver of Consequential Damages.
              5411.12
              Severability.
              5411.13
              Further
      Assurances.
              5411.14
              Confidentiality.
              5411.15
              Entirety.
              5511.16
              Binding
      Effect; Continuing Agreement.
              5511.17
              Regulatory
      Statement.
              5511.18
              USA
      Patriot Act Notice.
              5511.19
              Acknowledgment.
              5611.20
              Replacement
      of Lenders.
              56





iii





SCHEDULES





Schedule
      1.1(a)
            Pro
      Rata SharesSchedule
      11.1
            NoticesSchedule
      11.3
            Processing
      and Recording Fees








EXHIBITS





Exhibit
      2.1(b)
            Form
      of Notice of BorrowingExhibit
      2.1(e)
            Form
      of NoteExhibit
      2.3
            Form
      of Notice of Continuation/ConversionExhibit
      7.1(c)
            Form
      of Compliance CertificateExhibit
      11.3(b)
            Form
      of Assignment and Assumption








iv





TERM
LOAN CREDIT AGREEMENT








THIS TERM
LOAN CREDIT AGREEMENT (this “Credit Agreement”) is
entered into as of  March 7, 2008 among TEXAS-NEW MEXICO POWER
COMPANY, a Texas corporation (the “Borrower”), the
Lenders and JPMORGAN CHASE BANK, N.A., as Administrative Agent.





RECITALS








WHEREAS, the Borrower has
requested that the Lenders make available a $150,000,000 senior term loan credit
facility; and





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





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





SECTION
1





DEFINITIONS
AND ACCOUNTING TERMS





1.1           Definitions.





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





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





“Administrative Agent”
means JPMCB or any successor administrative agent appointed pursuant to Section
10.9.





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





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





“Affiliate” means,
with respect to any Person, any other Person directly or indirectly controlling
(including but not limited to all directors and officers of such Person),
controlled by or under direct or indirect common control with such
Person.  A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power (a) to vote 10% or more of
the securities having ordinary voting power for the election of directors of
such Person or (b) to direct or cause direction of the management and policies
of such other Person, whether through the ownership of voting securities, by
contract or otherwise.












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





“Applicable
Percentage” means, for Eurodollar Loans, 0.75% per annum; provided that
the Applicable Percentage shall equal 1.25% per annum for each day that any Lien
(other than any right of set-off or similar Lien of the type described in
Section 11.2 of the Existing Credit Agreement) shall exist upon any property in
favor of the administrative agent for the benefit of the lenders under the
Existing Credit Agreement (as it may be amended, supplemented or otherwise
modified from time to time) securing Indebtedness thereunder.





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





“Arrangers” means JP
Morgan Securities Inc. and Union Bank of California, N.A., in each case together
with its successors and/or assigns.





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





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





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





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





“Base Rate” means for
any day a fluctuating rate per annum equal to the higher of (a) the Federal
Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as
publicly announced from time to time by the Administrative Agent as its “prime
rate” (the “Prime
Rate”).  The Prime Rate is a rate publicly announced from time
to time by the Administrative Agent as its prime rate in effect at its principal
office in New York City, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced
rate.  Any change in such rate announced by the Administrative Agent
shall take effect at the opening of business on the day specified in the public
announcement of such change.





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





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





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






2





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





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





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





“Closing Date” means
the date of this Credit Agreement, which is the first date all the conditions
precedent in Section 5.1 are satisfied or waived in accordance with Section
5.1.






3





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





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





“Committed Amount”
means ONE HUNDRED FIFTY MILLION
DOLLARS ($150,000,000), as it may be reduced from time to time in
accordance with Section 2.1(d).





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





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





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





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





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




4




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





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





“Credit Documents”
means this Credit Agreement, the Notes, any Notice of Borrowing, any Notice of
Continuation/Conversion, and any other document, agreement or instrument entered
into or executed in connection with the foregoing.





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





“Credit Extension”
means a Borrowing.





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





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





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





“Defaulting Lender”
means, at any time, any Lender that, has failed to make a Loan (but only for so
long as such Loan is not made), (b) has failed to pay to the Administrative
Agent or any Lender an amount owed by such Lender pursuant to the terms of this
Credit Agreement (but only for so long as such amount has not been repaid) or
(c) has been deemed insolvent or has become subject to a bankruptcy or
insolvency proceeding or to a receiver, trustee or similar
official.





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





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






5




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





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





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





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





“ERISA Event” means,
with respect to the Borrower: (a) a Reportable Event with respect to a Plan or a
Multiemployer Plan, (b) a complete or partial withdrawal by the Borrower, any of
its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan, or the
receipt by the Borrower, any of its Subsidiaries or any ERISA Affiliate of
notice from a Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA, (c) the distribution by the Borrower,
any of its Subsidiaries or any ERISA Affiliate under Section 4041 or 4041A of
ERISA of a notice of intent to terminate any Plan or the taking of any action to
terminate any Plan, (d) the commencement of proceedings by the PBGC under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Borrower, any of its Subsidiaries or
any ERISA Affiliate of a notice from any Multiemployer Plan that such action has
been taken by the PBGC with respect to such Multiemployer Plan, (e) the
institution of a proceeding by any fiduciary of any Multiemployer Plan against
the Borrower, any of its Subsidiaries or any ERISA Affiliate to enforce Section
515 of ERISA, which is not dismissed within thirty (30) days, (f) the imposition
upon the Borrower, any of its Subsidiaries or any ERISA Affiliate of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, or the imposition or threatened
imposition of any Lien upon any assets of the Borrower, any of its Subsidiaries
or any ERISA Affiliate as a result of any alleged failure to comply with the
Code or ERISA in respect of any Plan, (g) the engaging in or otherwise becoming
liable for a nonexempt Prohibited Transaction by the Borrower, any of its
Subsidiaries or any ERISA Affiliate, (h) a violation of the applicable
requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under
Section 401(a) of the Code by any fiduciary of any Plan for which the Borrower,
any of its Subsidiaries or any ERISA Affiliate may be directly or indirectly
liable, (i) the adoption of an amendment to any Plan that, pursuant to Section
401(a)(29) of the Code or Section 307 of ERISA, would result in the loss of
tax-exempt status of the trust of which such Plan is a part if the Borrower, any
of its Subsidiaries or any ERISA Affiliate fails to timely provide security to
such Plan in accordance with the provisions of such sections or (j) the
withdrawal of the Borrower, any of its Subsidiaries or any ERISA Affiliate from
a Multiple Employer Plan during a play year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or the
termination of a Multiple Employer Plan.





6




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





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





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





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





“Existing Credit
Agreement” means that certain Amended and Restated Credit Agreement,
dated as of August 15, 2005, by and among the Parent, First Choice Power, L.P.,
and the Borrower, as borrowers, the lenders and financial institutions parties
thereto, Bank of America, N.A., as administrative agent, Wachovia Bank, National
Association, as syndication agent, and Citibank, N.A., JPMCB and Union Bank of
California, N.A., as co-documentation agents, as it has been amended prior to
the Closing Date.





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





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







7


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





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





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





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





“Funding Date” has the
meaning set forth in Section 2.1(a).





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





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





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





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





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




8




“Indebtedness” means,
with respect to any Person (without duplication), (a) all indebtedness and
obligations of such Person for borrowed money or in respect of loans or advances
of any kind, (b) all obligations of such Person evidenced by notes, bonds,
debentures or similar instruments, (c) all reimbursement obligations of such
Person with respect to surety bonds, letters of credit and bankers’ acceptances
(in each case, whether or not drawn or matured and in the stated amount
thereof), (d) all obligations of such Person to pay the deferred purchase price
of property or services, (e) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person, (f) all obligations of such Person as lessee under
leases that are or are required to be, in accordance with GAAP, recorded as
capital leases, to the extent such obligations are required to be so recorded,
(g) the net termination obligations of such Person under any Hedging Agreements,
calculated as of any date as if such agreement or arrangement were terminated as
of such date in accordance with the applicable rules under GAAP, (h) all
Contingent Obligations of such Person, (i) all obligations and liabilities of
such Person incurred in connection with any transaction or series of
transactions providing for the financing of assets through one or more
securitizations or in connection with, or pursuant to, any synthetic lease or
similar off-balance sheet financing, (j) the aggregate amount of uncollected
accounts receivable of such Person subject at the time of determination to a
sale of receivables (or similar transaction) to the extent such transaction is
effected with recourse to such Person (whether or not such transaction would be
reflected on the balance sheet of such Person in accordance with GAAP), (k) all
Specified Securities and (l) all indebtedness referred to in clauses (a) through
(k) above secured by any Lien on any property or asset owned or held by such
Person regardless of whether the indebtedness secured thereby shall have been
assumed by such Person or is nonrecourse to the credit of such
Person.





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





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





“Interest Payment
Date” means, (a) as to any Eurodollar Loan, the last day of each Interest
Period applicable to such Loan and the Maturity Date and (b) as to any Base Rate
Loan, the last Business Day of each Fiscal Quarter and the Maturity
Date.





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





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





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





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





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





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




9


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





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





“Lien” means any
mortgage, pledge, hypothecation, assignment, security interest, lien (statutory
or otherwise), preference, priority, charge or other encumbrance of any nature,
whether voluntary or involuntary, including, without limitation, the interest of
any vendor or lessor under any conditional sale agreement, title retention
agreement, capital lease or any other lease or arrangement having substantially
the same effect as any of the foregoing.





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





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





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





“Material Adverse
Effect” means, with respect to the Borrower, a material adverse effect
upon (a) the business, assets, liabilities (actual or contingent), operations,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries, taken as a whole, (b) the ability of the Borrower or any of its
Subsidiaries to perform its obligations under this Credit Agreement or any of
the other Credit Documents or (c) the legality, validity or enforceability of
this Credit Agreement or any of the other Credit Documents or the rights and
remedies of the Administrative Agent and the Lenders hereunder and
thereunder.





“Maturity Date” means
the six-month anniversary of the Funding Date or any later date as may be
specified as the Maturity Date in accordance with Section 2.5.





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





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





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





“Notes” means the
promissory notes of the Borrower in favor of each of the Lenders evidencing the
Loans made to the Borrower provided pursuant to Section 2.1, individually or
collectively, as appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time and as evidenced
in the form of Exhibit
2.1(e).




10




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





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





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





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





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





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





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





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





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





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





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





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




11




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





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





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





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





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





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





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





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





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





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





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




12




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





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





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





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








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





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





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





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





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




13




1.2           Computation of Time Periods
and Other Definitional Provisions.





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





1.3           Accounting Terms/Calculation
of Financial Covenants.





Except as
otherwise expressly provided herein, all accounting terms used herein or
incorporated herein by reference shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be
delivered to the Administrative Agent or the Lenders hereunder shall be
prepared, in accordance with GAAP applied on a consistent basis. Notwithstanding
anything to the contrary in this Credit Agreement, for purposes of calculation
of the financial covenant set forth in Section 7.2, all accounting
determinations and computations thereunder shall be made in accordance with GAAP
as in effect as of the date of this Credit Agreement applied on a basis
consistent with the application used in preparing the most recent financial
statements of the Borrower referred to in Section 4.1(d).  In the
event that any changes in GAAP after such date are required to be applied to the
Borrower,  and would affect the computation of the financial covenant
contained in Section 7.2, such changes shall be followed only from and
after the date this Credit Agreement shall have been amended to take into
account any such changes.





1.4           Time.





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





1.5           Rounding of Financial
Covenants.





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





1.6           References to Agreements and
Requirement of Laws.





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





1.7           [Reserved]








14




SECTION
2





CREDIT
FACILITY





2.1           Loans.





(a)           Commitment.   Subject
to the terms and conditions set forth herein, each Lender severally agrees to
make term loans (each a “Loan” and
collectively the “Loans”) in Dollars to
the Borrower in a single draw on any date prior to the thirty-fifth (35th) day
after the Closing Date (the “Funding Date”) (or
such earlier date if the Commitments have been terminated as provided herein);
provided, however, that after
giving effect to any Borrowing (i) the sum of the aggregate principal amount of
outstanding Loans shall not exceed the Committed Amount, and (ii) with respect
to each individual Lender, the sum of the aggregate principal amount of
outstanding Loans of such Lender shall not exceed such Lender’s Pro Rata Share
of the Committed Amount.  No amount of the Loans may be reborrowed
after repayment.  The unused Commitments hereunder shall automatically
terminate after giving effect to the initial Borrowing on the Funding Date, and
no Commitment Fee shall be due under Section 3.4(a) for any day after the
Funding Date.





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





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





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




15




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





(f)           [Reserved].





(g)           [Reserved].





2.2           [Reserved].





2.3           Continuations and
Conversions.





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





2.4           Minimum
Amounts.





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





2.5           Extension
Option.





(a)           Request for
Extension.  At any time prior to the 30th day immediately
preceding the then effective Maturity Date, the Borrower may by notice to the
Lenders (such notice being an “Extension Request”), request that the Lenders
extend the Maturity Date for a period (which period shall not exceed six months)
as set forth in such notice.   Each Lender shall, by notice to
the Borrower and the Administrative Agent not later than the 10th day following
the date of any such request from the Borrower, advise the Borrower whether or
not it agrees to extend the Maturity Date as requested.  Each decision
by a Lender shall be in the sole discretion of such Lender, and any Lender that
has not so advised the Administrative Agent by the 10th day following the date
of such request from the Borrower shall be deemed to have declined to agree to
such extension.  Each of the parties hereto acknowledges and agrees
that no Lender shall be obligated to extend the Maturity Date pursuant to the
terms of this Section 2.5.  Any Lender who fails to agree to the
Extension Request of the Borrower, as set forth herein, shall be referred to,
for purposes of this Section, as a “Non-Extending Lender”.




16


(b)           Extension.  If
Lenders holding Commitments representing at least 50% of the aggregate
outstanding principal amount of the Loans agree to any such request for
extension of the Maturity Date (collectively, the “Approving Lenders”), then the
Borrower may extend the Maturity Date for the period set forth in the Extension
Request solely as to the Approving Lenders.  If Non-Extending Lenders
hold Commitments representing more than 50% of the aggregate outstanding
principal amount of the Loans then the Borrower shall withdraw its Extension
Request and the Maturity Date will remain unchanged.  With respect to
the Non-Extending Lenders, it is understood and agreed that the Maturity Date
relating to the Non-Extending Lenders shall remain unchanged and the repayment
of all obligations owed to them and the termination of their Commitments shall
occur on the then existing Maturity Date without giving effect to such Extension
Request.





2.6           [Reserved].





2.7           Evidence of
Debt.





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




SECTION
3





GENERAL
PROVISIONS APPLICABLE


TO
LOANS





3.1           Interest.





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





(b)           Default Rate of
Interest.





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






17





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





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





3.2           Payments
Generally.





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





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





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





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





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




18





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





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





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





3.3           Prepayments.





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





(b)           Mandatory
Prepayments.  If at any time (i) the sum of the aggregate
principal amount of Loans outstanding exceeds the Committed Amount, the Borrower
shall immediately make a principal payment to the Administrative Agent in an
amount in Dollars as is necessary to be in compliance with Section 2.1 and as
directed by the Administrative Agent.  All amounts required to be
prepaid pursuant to this Section 3.3(b) shall be applied first to Base Rate
Loans, and second to Eurodollar
Loans in direct order of Interest Period maturities.  All prepayments
pursuant to this Section 3.3(b) shall be subject to Section 3.14.





3.4           Fees.





(a)           Commitment
Fees.  In consideration of the Committed Amount being made
available by the Lenders hereunder, the Borrower agrees to pay to the
Administrative Agent, for each day prior to the Funding Date and for the pro
rata benefit of each Lender based on its Pro Rata Share, a per annum fee equal
to 0.15% multiplied by the Unused Commitment for each such day (the “Commitment
Fees”).  The Commitment Fees shall commence to accrue on the
Closing Date and shall be due and payable in arrears on the Funding Date, and if
earlier, any date that the Committed Amount is reduced, for the period then
ending.






19





3.5           Payment in full at
Maturity.





Subject
to the terms of Section 2.5, on the Maturity Date, the entire outstanding
principal balance of all Loans, together with accrued but unpaid interest and
all fees and other sums owing under the Credit Documents, shall be due and
payable in full, unless accelerated sooner pursuant to Section 9.2; provided that if the
Maturity Date is not a Business Day, then such principal, interest, fees and
other sums shall be due and payable in full on the next preceding Business
Day.





3.6           Computations of Interest and
Fees.





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





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






20





3.7           Pro Rata
Treatment.





Except to
the extent otherwise provided herein, each Borrowing, each payment or prepayment
of principal of any Loan, each payment of interest, each payment of fees (other
than administrative fees paid to the Administrative Agent), each conversion or
continuation of any Loans and each reduction in the Committed Amount, shall be
allocated pro rata among the relevant Lenders in accordance with their Pro Rata
Shares; provided that, if any
Lender shall have failed to pay its Pro Rata Share of any Loan, then any amount
to which such Lender would otherwise be entitled pursuant to this Section 3.7
shall instead be payable to the Administrative Agent until the share of such
Loan by such Lender has been repaid.  In the event any principal,
interest, fee or other amount paid to any Lender pursuant to this Credit
Agreement or any other Credit Document is rescinded or must otherwise be
returned by the Administrative Agent, (a) such principal, interest, fee or other
amount that had been satisfied by such payment shall be revived, reinstated and
continued in full force and effect as if such payment had not occurred and (b)
such Lender shall, upon the request of the Administrative Agent, repay to the
Administrative Agent the amount so paid to such Lender, with interest for the
period commencing on the date such payment is returned by the Administrative
Agent until the date the Administrative Agent receives such repayment at a rate
per annum equal to the Federal Funds Rate if repaid within two (2) Business Days
after such request and thereafter the Base Rate.





3.8           Sharing of
Payments.





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






21





3.9           Capital
Adequacy.





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





3.10                      Eurodollar
Provisions.





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





3.11                      Illegality.





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





3.12                      Requirements of Law;
Reserves on Eurodollar Loans.





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






22





(b)           Reserves.  The
Borrower shall pay to each Lender (to the extent such Lender has not otherwise
been compensated therefor hereunder), as long as such Lender shall be required
to maintain reserves with respect to liabilities or assets consisting of or
including Eurodollar funds or deposits (currently known as “Eurodollar
liabilities”), additional interest on the unpaid principal amount of each
Eurodollar Loan equal to the actual costs of such reserves allocated to such
Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive absent demonstrable error), which, shall be
due and payable on each date on which interest is payable on such Loan; provided that the
Borrower shall have received at least 15 days’ prior notice (with a copy to the
Administrative Agent) of such additional interest from such
Lender.  If a Lender fails to give notice 15 days prior to the
relevant Interest Payment Date, such additional interest shall be due and
payable 15 days from receipt of such notice.





3.13                      Taxes.





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





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






23





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





(d)           Indemnification.  The
Borrower agrees to indemnify the Administrative Agent and each Lender for (i)
the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section
3.13(d)) paid by the Administrative Agent and such Lender, and (ii) any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto.





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





(f)           Foreign
Lenders.  Each Lender that is a foreign corporation, foreign
partnership or foreign trust within the meaning of the Code (a “Foreign Lender”)
shall deliver to the Administrative Agent, prior to receipt of any payment
subject to withholding under the Code, two duly signed completed copies of
either IRS Form W-8BEN or any successor thereto (relating to such Lender and
entitling it to an exemption from, or reduction of, withholding tax on all
payments to be made to such Lender by the Borrower pursuant to this Credit
Agreement), as appropriate, or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Lender by the Borrower pursuant to
this Credit Agreement) or such other evidence satisfactory to the Borrower and
the Administrative Agent that such Lender is entitled to an exemption from, or
reduction of, United States withholding tax. Thereafter and from time to time,
each such Lender shall (i) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities), as appropriate, as may reasonably be requested by
the Borrower or the Administrative Agent and then be available under then
current United States Laws and regulations to avoid, or such evidence as is
satisfactory to the Borrower and the Administrative Agent of any available
exemption from or reduction of, United States withholding taxes in respect of
all payments to be made to such Lender by the Borrower pursuant to this Credit
Agreement, (ii) promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction, and (iii) take such steps as shall not be materially disadvantageous
to it, in the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Lending Office) to avoid any
Requirement of Law that the Borrower make any deduction or withholding for taxes
from amounts payable to such Lender.  If the forms or other evidence
provided by such Lender at the time such Lender first becomes a party to this
Credit Agreement indicate a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender provides the appropriate forms certifying
that a lesser rate applies, whereupon






24




withholding
tax at such lesser rate only shall be considered excluded from Taxes for periods
governed by such forms; provided, however, that, if at the date of any
assignment pursuant to which a Lender becomes a party to this Credit Agreement,
the assignor Lender was entitled to payments under Section 3.13(a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
assignee Lender on such date.  If such Lender fails to deliver the
above forms or other evidence, then the Administrative Agent may withhold from
any interest payment to such Lender an amount equal to the applicable
withholding tax imposed by Sections 1441 and 1442 of the Code, without
reduction.  If any Governmental Authority asserts that the
Administrative Agent did not properly withhold any tax or other amount from
payments made in respect of such Lender, such Lender shall indemnify the
Administrative Agent therefor, including all penalties and interest, any taxes
imposed by any jurisdiction on the amounts payable to the Administrative Agent
under this Section 3.13(f), and costs and expenses (including the reasonable
fees and expenses of legal counsel) of the Administrative Agent.  For
any period with respect to which a Lender has failed to provide the Borrower
with the above forms or other evidence (other than if such failure is due to a
change in the applicable Law, or in the interpretation or application thereof,
occurring after the date on which such form or other evidence originally was
required to be provided or if such form or other evidence otherwise is not
required), such Lender shall not be entitled to indemnification under subsection
(a) or (c) of this Section 3.13 with respect to Taxes imposed by the United
States by reason of such failure; provided, however, that should a Lender become
subject to Taxes because of its failure to deliver such form or other evidence
required hereunder, the Borrower shall take such steps as such Lender shall
reasonably request to assist such Lender in recovering such
Taxes.  The obligation of the Lenders under this Section 3.13(f) shall
survive the payment of all Borrower Obligations and the resignation or
replacement of the Administrative Agent.




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





3.14                      Compensation.





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





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






25





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





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





For
purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.14, each Lender shall be deemed to have funded each
Eurodollar Loan made by it at the Eurodollar Rate for such Loan by a matching
deposit or other borrowing in the London interbank market for a comparable
amount and for a comparable period, whether or not such Eurodollar Loan was in
fact so funded.





3.15                      Determination and Survival
of Provisions.





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





SECTION
4





CONDITIONS
PRECEDENT TO CLOSING





4.1           Closing
Conditions.





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





(a)           Executed Credit
Documents.  Receipt by the Administrative Agent of duly
executed copies of:  (i) this Credit Agreement, (ii) the requested
Notes, and (iii) all other Credit Documents, each in form and substance
reasonably acceptable to the Lenders in their sole discretion.





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





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





(ii)           Resolutions.  Copies
of resolutions of the board of directors of the Borrower approving and adopting
this Credit Agreement and the other Credit Documents to which it is a party, the
transactions contemplated herein and therein and authorizing execution and
delivery hereof and thereof, certified by a secretary or assistant secretary (or
the equivalent) of the Borrower to be true and correct and in full force and
effect as of the Closing Date.




26




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






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





(c)           Opinions of
Counsel.   Receipt by the Administrative Agent of opinions
of counsel from outside counsel to the Borrower, in form and substance
acceptable to the Administrative Agent, addressed to the Administrative Agent
and the Lenders and dated as of the Closing Date.





(d)           Financial
Statements.  Receipt by the Administrative Agent of a copy of
the annual consolidated financial statements (including balance sheets, income
statements and cash flow statements) of the Parent and its Subsidiaries for
Fiscal Years 2006 and 2007, audited by independent public accountants of
recognized national standing and (ii) such other financial information regarding
the Borrower as the Administrative Agent may reasonably request.





(e)           Material Adverse
Effect.  Since December 31, 2007, there shall have been no
development or event relating to or affecting the Borrower or any of its
Subsidiaries that has had or could be reasonably expected to have a Material
Adverse Effect and no Material Adverse Change in the facts and information
regarding the Borrower and its Subsidiaries as represented to date.





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





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





(h)           Consents.  All
necessary governmental, shareholder and third party consents and approvals, if
any, with respect to this Credit Agreement and the Credit Documents and the
transactions contemplated herein and therein have been received and no condition
or Requirement of Law exists which would reasonably be likely to restrain,
prevent or impose any material adverse conditions on the transactions
contemplated hereby and by the other Credit Documents.





(i)           Officer’s
Certificates.  Receipt by the Administrative Agent of a
certificate or certificates executed by an Authorized Officer of the Borrower as
of the Closing Date stating that (i) the Borrower and each of its Subsidiaries
are in compliance in all material respects with all existing material financial
obligations and all material Requirements of Law, (ii) there does not exist any
material order, decree, judgment, ruling or injunction or any material pending
or threatened action, suit, investigation or proceeding against the Borrower or
any of its Subsidiaries, (iii) the financial statements and information
delivered to the Administrative Agent on or before the Closing Date were
prepared in good faith and in accordance with GAAP and (iv) immediately after
giving effect to this Credit Agreement, the other Credit Documents and all the
transactions contemplated






27




herein or
therein to occur on such date, (A) Borrower is Solvent, (B) no Default or Event
of Default exists, (C) all representations and warranties contained herein and
in the other Credit Documents are true and correct in all material respects, (D)
since December 31, 2007, there has been no development or event relating to or
affecting the Borrower or any of its Subsidiaries that has had or could be
reasonably expected to have a Material Adverse Effect and there exists no event,
condition or state of facts that could result in or reasonably be expected to
result in a Material Adverse Change and (E) the Borrower is in compliance with
the financial covenant set forth in Section 7.2, as of December 31, 2007, as
demonstrated in the Covenant Compliance Worksheet attached to such
certificate.





(j)           Fees and
Expenses.  Unless waived by the Person entitled thereto,
payment by the Borrower of all fees and expenses owed by them to the
Administrative Agent, the Arrangers and the Lenders on or before the Closing
Date.





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





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











SECTION
5





CONDITIONS
TO ALL EXTENSIONS OF CREDIT





5.1           Funding
Requirements.





In
addition to the conditions precedent stated elsewhere herein, the Lenders shall
not be obligated to make Loans unless:





(a)           Notice. The Borrower
shall have delivered the Notice of Borrowing, duly executed and completed, by
the time specified in Section 2.1.





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





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





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





28




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








SECTION
6





REPRESENTATIONS
AND WARRANTIES





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





6.1           Organization and Good
Standing.





The
Borrower and its Subsidiaries (a) are duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) are
duly qualified and in good standing as a foreign entity authorized to do
business in every other jurisdiction where the failure to so qualify would have
a Material Adverse Effect and (c) have the requisite power and authority to own
its properties and to carry on its business as now conducted and as proposed to
be conducted.





6.2           Due
Authorization.





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





6.3           No
Conflicts.





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





6.4           Consents.





No
consent, approval, authorization or order of, or filing, registration or
qualification with, any court or Governmental Authority or third party is
required in connection with the execution, delivery or performance of this
Credit Agreement or any of the other Credit Documents that has not been obtained
or completed.






29





6.5           Enforceable
Obligations.





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





6.6           Financial
Condition.





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





6.7           No Material
Change.





(a)           Since
December 31, 2007, there has been no development or event relating to or
affecting the Borrower or any of its Subsidiaries which would have or would
reasonably be expected to have a Material Adverse Effect.





(b)           Since
December 31, 2007, there has been no sale, transfer or other disposition by the
Borrower or any of its Subsidiaries of any material part of its business or
property, and no purchase or other acquisition by the Borrower or any of its
Subsidiaries of any business or property (including the Capital Stock of any
other Person) material in relation to the financial condition of the Borrower or
any of its Subsidiaries, in each case which is not (i) reflected in the most
recent financial statements delivered to the Lenders pursuant to
Section 4.1(d) or 7.1 or in the notes thereto or (ii) otherwise permitted
by the terms of this Credit Agreement and communicated to the
Lenders.





6.8           No
Default.





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





6.9           Litigation.





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





6.10                      Taxes.





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






30





6.11                      Compliance with
Law.





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





6.12                      ERISA.





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





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





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





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





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





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






31





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





6.13                      Use of Proceeds; Margin
Stock.





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





6.14                      Government
Regulation.





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





6.15                      Solvency.





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





6.16                      Disclosure.





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





6.17                      Environmental
Matters.





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





6.18                      [Reserved].





6.19                      [Reserved].





32


SECTION
7





AFFIRMATIVE
COVENANTS





The
Borrower covenants and agrees that, until the termination of the Commitments and
the payment in full of all of its Borrower Obligations:





7.1           Information
Covenants.





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





(a)           Annual Financial
Statements. As soon as available, and in any event within 120 days after
the close of each Fiscal Year of the Borrower commencing with the 2007 Fiscal
Year, a consolidated balance sheet and income statement of the Borrower and its
Subsidiaries, as of the end of such Fiscal Year, together with the related
consolidated statements of income and of cash flows for such Fiscal Year,
setting forth in comparative form figures for the preceding Fiscal Year, all
such financial information described above to be in reasonable form and detail
and, in each case, audited by independent certified public accountants of
recognized national standing reasonably acceptable to the Required Lenders and
whose opinion shall be furnished to the Lenders, and shall be to the effect that
such financial statements have been prepared in accordance with GAAP (except for
changes with which such accountants concur) and shall not be limited as to the
scope of the audit or qualified in any respect.





(b)           Quarterly Financial
Statements. As soon as available, and in any event within 60 days after
the close of each Fiscal Quarter of the Borrower (other than the fourth Fiscal
Quarter), a consolidated balance sheet and income statement of the Borrower and
its Subsidiaries as of the end of such Fiscal Quarter, together with the related
consolidated statement of income for such Fiscal Quarter and a year to date
statement of cash flows, in each case setting forth in comparative form figures
for the corresponding period of the preceding Fiscal Year, all such financial
information described above to be in reasonable form and detail and reasonably
acceptable to the Required Lenders, and, in each case, accompanied by a
certificate of a Financial Officer of the Borrower to the effect that such
quarterly financial statements fairly present in all material respects the
financial condition of such Person and have been prepared in accordance with
GAAP, subject to changes resulting from audit and normal year-end audit
adjustments and except that the quarterly financial statements have fewer
footnotes than annual statements.





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





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






33





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





(f)           ERISA.  Upon
the Borrower or any ERISA Affiliate obtaining knowledge thereof, the Borrower
will give written notice to the Administrative Agent promptly (and in any event
within ten days) of any of the following which would result in or reasonably
would be expected to result in a Material Adverse Effect: (i) any event or
condition, including, but not limited to, any Reportable Event, that
constitutes, or would be reasonably expected to lead to, an ERISA Event; (ii)
with respect to any Multiemployer Plan, the receipt of notice as prescribed in
ERISA or otherwise of any withdrawal liability assessed against the Borrower or
any of its ERISA Affiliates, or of a determination that any Multiemployer Plan
is in reorganization or insolvent (both within the meaning of Title IV of
ERISA); (iii) the failure to make full payment on or before the due date
(including extensions) thereof of all amounts which the Borrower or any of its
Subsidiaries or ERISA Affiliates is required to contribute to each Plan pursuant
to its terms and as required to meet the minimum funding standard set forth in
ERISA and the Code with respect thereto; or (iv) a change in the funding status
of any Plan, in each case together with a description of any such event or
condition or a copy of any such notice and a statement by an officer of the
Borrower briefly setting forth the details regarding such event, condition, or
notice, and the action, if any, which has been or is being taken or is proposed
to be taken with respect thereto.  Promptly upon request, the Borrower
shall furnish the Lenders with such additional information concerning any Plan
as may be reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor and/or the
Internal Revenue Service pursuant to ERISA and the Code, respectively, for each
“plan year” (within the meaning of Section 3(39) of ERISA).





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





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





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






34





7.2           Financial
Covenant.





(a)
            [Reserved].





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





7.3           Preservation of Existence
and Franchises.





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





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





7.4           Books and
Records.





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





7.5           Compliance with
Law.





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





7.6           Payment of Taxes and Other
Indebtedness.





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






35





7.7           Insurance.





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





7.8           Performance of
Obligations.





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





7.9           Use of
Proceeds.





The
proceeds of the Credit Extensions may be used solely to finance the redemption
of the Borrower’s 6.125% notes due June 1, 2008, including
expenses.





7.10                      Audits/Inspections.





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





7.11                      [Reserved].





SECTION
8





NEGATIVE
COVENANTS





Unless
otherwise approved in writing by the Required Lenders, the Borrower covenants
and agrees that, until the termination of the Commitments and the payment in
full of its Borrower Obligations:





8.1           Nature of
Business.





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






36





8.2           Consolidation and
Merger.





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





8.3           Sale or Lease of
Assets.





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





8.4           Affiliate
Transactions.





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





8.5           Liens.





The
Borrower will not (nor will it permit its Subsidiaries to) contract, create,
incur, assume or permit to exist any Lien with respect to any of its property or
assets of any kind (whether real or personal, tangible or intangible), whether
now owned or hereafter acquired, securing any Indebtedness other than the
following: (a) Liens securing Borrower Obligations, (b) Liens for taxes not
yet due or Liens for taxes being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance with GAAP have
been established (and as to which the property subject to any such Lien is not
yet subject to foreclosure, sale or loss on account thereof), (c) Liens in
respect of property imposed by law arising in the ordinary course of business
such as materialmen’s, mechanics’, warehousemen’s, carrier’s, landlords’ and
other nonconsensual statutory Liens which are not yet due and payable, which
have been in existence less than 90 days or which are being contested in good
faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which the property subject
to any such Lien is not yet subject to foreclosure, sale or loss on account
thereof), (d) pledges or deposits made in the ordinary course of business
to secure payment of worker’s compensation insurance, unemployment insurance,
pensions or social security programs, (e) Liens arising from good faith
deposits in connection with or to secure performance of tenders, bids, leases,
government contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (other than obligations
in respect of the payment of borrowed money), (f) Liens arising from good
faith deposits in connection with or to secure performance of statutory
obligations and surety and appeal bonds, (g) easements, rights-of-way,
restrictions (including zoning restrictions), minor defects or irregularities in
title and other similar charges or encumbrances not, in any material respect,
impairing the use of the encumbered property for its intended purposes,
(h) judgment Liens that would not constitute an Event of Default,
(i) Liens arising by virtue of any statutory or common law provision
relating to banker’s liens, rights of setoff or similar rights as to deposit
accounts or other funds maintained with a creditor depository institution,
(j) any Lien created or arising over any property which is acquired,
constructed or created by the Borrower or its Subsidiaries, but only
if






37




(i) such
Lien secures only principal amounts (not exceeding the cost of such acquisition,
construction or creation) raised for the purposes of such acquisition,
construction or creation, together with any costs, expenses, interest and fees
incurred in relation thereto or a guarantee given in respect thereof,
(ii) such Lien is created or arises on or before 180 days after the
completion of such acquisition, construction or creation, (iii) such Lien
is confined solely to the property so acquired, constructed or created and any
improvements thereto and (iv) the aggregate principal amount of all Indebtedness
at any one time outstanding that is secured by such Liens shall not exceed
$25,000,000, (k) any Lien on Margin Stock, (l) the assignment of, or
Liens on, demand, energy or wheeling revenues, or on capacity reservation or
option fees, payable to the Borrower or any of its Subsidiaries with respect to
any wholesale electric service or transmission agreements, the assignment of, or
Liens on, revenues from energy services contracts, and the assignment of, or
Liens on, capacity reservation or option fees payable to the Borrower or such
Subsidiary with respect to asset sales permitted herein, (m) any extension,
renewal or replacement (or successive extensions, renewals or replacements), as
a whole or in part, of any Liens referred to in the foregoing clauses (a)
through (l), for amounts not exceeding the principal amount of the Indebtedness
secured by the Lien so extended, renewed or replaced, provided that such
extension, renewal or replacement Lien is limited to all or a part of the same
property or assets that were covered by the Lien extended, renewed or replaced
(plus improvements on such property or assets), (n) Liens securing obligations
under Hedging Agreements entered into in the ordinary course of business and not
for speculative purposes, (o) Liens granted by bankruptcy-remote special purpose
Subsidiaries to secure stranded cost securitization bonds, (p) Liens upon any
property in favor of the administrative agent for the benefit of the lenders
under the Existing Credit Agreement (as it may be amended, supplemented or
otherwise modified from time to time) securing Indebtedness thereunder, and
(q) Liens on Property, in addition to those otherwise permitted by
clauses (a) through (p) above, securing, directly or indirectly,
Indebtedness or obligations of the Borrower and its Subsidiaries arising
pursuant to other agreements entered into in the ordinary course of business
which do not exceed, in the aggregate at any one time outstanding,
$25,000,000.





8.6           Accounting
Changes.





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





8.7           Burdensome
Agreements.





The
Borrower will not (nor will it permit any of its Subsidiaries to) enter into any
contractual obligation (other than (i) the Credit Documents and (ii) the
Existing Credit Agreement (as it may be amended, supplemented or otherwise
modified from time to time) that limits the ability (a) of any Subsidiary of the
Borrower to make Restricted Payments to the Borrower or to otherwise transfer
property to the Borrower or (b) of the Borrower to create, incur, assume or
suffer to exist Liens on its property in favor of the Administrative Agent, for
the benefit of the Lenders.





SECTION
9





EVENTS OF
DEFAULT





9.1           Events of
Default.





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






38





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





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





(c)           Covenants.  The
Borrower shall:





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





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





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





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





(f)           Defaults under Other
Agreements.





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






39





(ii)           With
respect to any Indebtedness of the Borrower or any of its Subsidiaries (other
than Indebtedness outstanding under this Credit Agreement) in excess of
$20,000,000in the
aggregate (A) the Borrower or any of its Subsidiaries shall (x) default in
any payment (beyond the applicable grace period with respect thereto, if any)
with respect to such Indebtedness, or (y) default (after giving effect to any
applicable grace period) in the observance or performance of any covenant or
agreement relating to such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event or
condition shall occur or condition exist, the effect of which default or other
event or condition is to cause or permit the holder or the holders of such
Indebtedness (or any trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of time is required)
such Indebtedness to become due prior to its stated maturity; or (B) such
Indebtedness shall be declared due and payable, or required to be prepaid other
than by a regularly scheduled required prepayment prior to the stated maturity
thereof; or (C) such Indebtedness shall mature and remain
unpaid.





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





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





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





9.2           Acceleration;
Remedies.





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





40




(a)           Termination of
Commitments.  Declare the Commitments terminated whereupon the
Commitments shall be immediately terminated.





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





(c)           [Reserved].





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





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





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





9.3           Allocation of Payments After
Event of Default.





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





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





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





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





FOURTH,
to the payment of the outstanding principal amount of the Loans, ratably among
them in proportion to the amounts described in this clause “FOURTH” payable to
them;






41





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





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





SECTION
10





AGENCY
PROVISIONS





10.1                      Appointment and
Authority.





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





10.2                      Rights as a
Lender.





The
Person serving as the Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity.  Such Person and its Affiliates
may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor
to the Lenders.





10.3                      Exculpatory
Provisions.





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





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





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






42





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





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





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





10.4                      Reliance by Administrative
Agent.





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





10.5                      Delegation of
Duties.





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






43





10.6                      Resignation of
Administrative Agent.





The
Administrative Agent may at any time give notice of its resignation to the
Lenders, and the Borrower.  Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United
States.  If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may on behalf of the Lenders, appoint a
successor Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (a) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Credit Documents and (b) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section.  Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Credit Documents (if not already
discharged therefrom as provided above in this Section).  The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor.  After the retiring Administrative Agent’s
resignation hereunder and under the other Credit Documents, the provisions of
this Section and Section 11.5
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Agent Related Persons in respect of any
actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.





10.7                      Non-Reliance on
Administrative Agent and Other Lenders.





Each
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Agent-Related Persons
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 or any of
their Agent-Related Persons and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Credit
Document or any related agreement or any document furnished hereunder or
thereunder.





10.8                      No Other Duties,
Etc.





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





10.9                      Administrative Agent
May File Proofs of Claim.





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





44




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





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





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





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








SECTION
11





MISCELLANEOUS





11.1                      Notices; Effectiveness;
Electronic Communication.





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





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





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





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






45





(b)           Electronic
Communications.  Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender pursuant to Section 2 if
such Lender has notified the Administrative Agent that it is incapable of
receiving notices under such Section by electronic
communication.  The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or
communications.





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





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





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






46





(e)           Reliance by Administrative
Agent and Lenders.  The Administrative Agent and the Lenders
shall be entitled to rely and act upon any notices (including telephonic Notices
of Borrowing) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof.  The Borrower shall indemnify the Administrative Agent, each
Lender and the Agent-Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower.  All
telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.





11.2                      Right of
Set-Off.





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





11.3                      Successors
and Assigns.





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






47





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





(i)           except
in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the Commitment is not then
in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has
been met;





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





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





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





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






48





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





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





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





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





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





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






49





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





11.4                      No Waiver; Remedies
Cumulative.





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





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





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






50




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





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




51




(c)           To
the extent that the Borrower for any reason fails to indefeasibly pay any amount
required under subsection (a) or (b) of this Section to be paid
by it to the Administrative Agent (or any sub-agent thereof), or any
Agent-Related Party of any of the foregoing, each Lender severally agrees to pay
to the Administrative Agent (or any such sub-agent), or such Agent-Related
Party, as the case may be, such Lender’sPro Rata Share
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) in its capacity as such, or against
any Agent-Related Party of any of the foregoing acting for the Administrative
Agent (or any such sub-agent) in connection with such capacity.  The
obligations of the Lenders under this subsection (c) are subject to the
provisions of Section 3.2(d).





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





11.6                      Amendments,
Etc.





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





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





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





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





(d)           reduce
the principal of, or the rate of interest specified herein on, any Loan, or any
fees or other amounts payable hereunder or under any other Credit Document
without the written consent of each Lender directly affected thereby; provided, however, that only
the consent of the Required Lenders shall be necessary  to amend the
definition of “Default Rate”;





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





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






52




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





and,
provided further, that (i) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Credit Agreement or any
other Credit Document; and (ii) Section 11.3(h)
may not be amended, waived or otherwise modified without the consent of each
Granting Lender all or any part of whose Loans are being funded by an SPC at the
time of such amendment, waiver or other modification.  Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that
the Commitment of such Lender may not be increased or extended without the
consent of such Lender.





11.7                      Counterparts.





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





11.8                      Headings.





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





11.9                      Survival of Indemnification
and Representations and Warranties.





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





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





11.10                      Governing Law; Venue;
Service.





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






53





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





11.11                      Waiver of Jury Trial; Waiver
of Consequential Damages.





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





11.12                      Severability.





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





11.13                      Further
Assurances.





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





11.14                      Confidentiality.





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






54





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





11.15                      Entirety.





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





11.16                      Binding Effect; Continuing
Agreement.





(a)           This
Credit Agreement shall become effective at such time when all of the conditions
set forth in Section 5.1 have been satisfied or waived by the Lenders and it
shall have been executed by the Borrower and the Administrative Agent, and the
Administrative Agent shall have received copies hereof (telefaxed or otherwise)
which, when taken together, bear the signatures of each Lender, and thereafter
this Credit Agreement shall be binding upon and inure to the benefit of the
Borrower, the Administrative Agent and each Lender and their respective
successors and assigns.





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





11.17                      [Reserved].





11.18                      USA Patriot Act
Notice.





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






55





11.19                      Acknowledgment.





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





11.20                      Replacement of
Lenders.





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





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





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





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





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





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







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








56







[REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK]








57
 Signature
Page to Term Loan Credit Agreement
 Texas-New
Mexico Power Company





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





BORROWER:





TEXAS-NEW
MEXICO POWER COMPANY


a Texas
corporation








By:           /s/
Tom
Sategna


Name:      Thomas
G. Sategna


Title:        Vice
President, Controller and Treasurer











S -
1
 
 Signature
Page to Term Loan Credit Agreement
 Texas-New
Mexico Power Company





AGENT:





JPMORGAN CHASE BANK,
N.A.,


as
Administrative Agent








By:           /s/ Helen D.
Davis


Name:      Helen
D.
Davis


Title:        Vice
President








LENDERS:


JPMORGAN CHASE BANK,
N.A.,


as a
Lender








By:           /s/ Helen D.
Davis


Name:     Helen
D.
Davis


Title:       Vice
President








UNION BANK OF CALIFORNIA,
N.A.,


as a
Lender








By:           /s/ Robert J.
Cole


Name:      Robert
J.
Cole


Title:        Vice
President






S -
2




SCHEDULE
1.1(a)
  
  PRO RATA
SHARES
  
  Lender
              Commitment
              Pro Rata ShareJPMorgan
      Chase Bank, N.A.
              $75,000,000
              50.000000000%Union
      Bank of California, N.A.
              $75,000,000
              50.000000000%Total
              $150,000,000
              100.000000000%
 
   
  SCHEDULE
11.1
  NOTICES
  COMPANY:
  Texas-New
Mexico Power Company
 Alvarado
Square
 Albuquerque,
NM  87158
 Attention:  Thomas
G. Sategna, Vice President, Controller and Treasurer
 Telephone:  505.241.4615
 Telecopier:  505.241.2371
 Electronic
Mail:  Thomas.Sategna@pnmresources.com
 Website
Address:  www.pnmresouces.com
  ADMINISTRATIVE
AGENT:
  Administrative
Agent’s Office
 (for
payments and Requests for Credit Extensions):
  
 JPMorgan
Chase Bank, N.A.
 10 S.
Dearborn St.
 Chicago,
IL  60603
 Attention:  Credit
Services
 Telephone:  312.732.2647
 Telecopier:  312.385.7096
 Electronic
Mail:  Rafaela.Valenciano@jpmchase.com
 Account
No. 9008109962C2236
 Ref:  Texas
New Mexico Power Company
 Account
Name:  LS2 Incoming Clearing Account
 ABA#:  021000021
  
  Other
Notices as Administrative Agent:
   JPMorgan
Chase Bank, N.A.
 10 S.
Dearborn St.
 Chicago,
IL  60603
 Mail
Code:  IL1-0090
 Attention:  Helen
D. Davis
 Telephone:  312.732.1759
 Telecopier:  312.732.1762
 Electronic
Mail:  helen.d.davis@jpmchase.com
  
  
  SCHEDULE
11.3
  
  PROCESSING AND RECORDING
FEES
  The
Administrative Agent will charge a processing and recordation fee (an “Assignment Fee”) in
the amount of $2,500 for each assignment; provided, however, that in the
event of two or more concurrent and assignments to members of the same Assignee
Group (which may be effected by a suballocation of an assigned amount among
members of such Assignee Group) or two or more concurrent assignments by members
of the same Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group), the Assignment Fee will be $2,500
plus the amount set forth below:
  Transaction
              Assignment
      FeeFirst
      four concurrent assignments or suballocations to members of an Assignee
      Group (or from members of an Assignee Group, as
applicable)
              -0-Each
      additional concurrent assignment or suballocation to a member of such
      Assignee Group (or from a member of such Assignee Group, as
      applicable)
              $500
 
   
  EXHIBIT
2.1(b)
  FORM
OF
 NOTICE OF
BORROWING
  TO:
              JPMORGAN
      CHASE BANK, N.A., as Administrative
Agent
  RE:
              Credit
      Agreement dated as of March 7, 2008 among Texas-New Mexico Power Company
      (the “Borrower”), JPMorgan Chase Bank, N.A., as Administrative Agent, and
      the Lenders identified therein (as the same may be amended, modified,
      extended or restated from time to time, the “Credit
      Agreement”)
  DATE:
              __________________,
      2008 (the “Funding Date”).
  1.
              This
      Notice of Borrowing is made pursuant to the terms of the Credit
      Agreement.  All capitalized terms used herein unless otherwise
      defined shall have the meanings set forth in the Credit
      Agreement
  2.
              Please
      be advised that the Borrower is requesting Loans on the terms set forth
      below:
  (a)
              Principal
      amount of requestedLoans
              
              $150,000,000(b)
              Date
      of requested Loans
              
              __________________,
      2008(c)
              Interest
      rate applicable to therequested
      Loans:(
      i)
              ________
              
              Base
      Rate(ii)
              ________
              
              Adjusted
      Eurodollar Rate for an Interest Periodof:________
      one month________
      two months________
      three months
 3.
              The
      representations and warranties made by the undersigned in any Credit
      Document (other than the representation and warranties in Section 6.7(a)
      (but only with respect to clause (a) of the definition of Material Adverse
      Effect) and Section 6.9 of the Credit Agreement) are true and correct in
      all material respects at and as if made on the date of the requested Loans
      except to the extent they expressly relate to an earlier
    date.
  4.
              No
      Default or Event of Default as to the undersigned exists or shall be
      continuing either prior to or after giving effect to the Loans made
      pursuant to this Notice of
Borrowing.
   
   TEXAS-NEW
      MEXICO POWER COMPANYa
      Texas corporationBy:________________________________Name:______________________________Title:_______________________________
 
   
  EXHIBIT
2. l(e)
  FORM OF
NOTE
  Lender:
_______________
  FOR  VALUE  RECEIVED,
Texas-New Mexico Power Company, a Texas corporation (the “Borrower”), hereby
promises to pay to the order of the Lender referenced above (the “Lender”), at
the Administrative Agent’s Office set forth in that certain Term Loan Credit
Agreement dated as of March 7, 2008 (as amended, modified, extended or restated
from time to time, the “Credit Agreement”) among the Borrower, the Lenders party
thereto (including the Lender) and JPMorgan Chase Bank, N.A., as Administrative
Agent (the “Administrative
Agent”) (or at such other place or places as the holder of this Note may
designate), the aggregate unpaid principal amount of the Loans made by the
Lender to the Borrower under the Credit Agreement, in lawful money and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
each Loan made by the Lender to the Borrower, at such office, in like money and
funds, for the period commencing on the date of each such Loan until each such
Loan shall be paid in full, at the rates per annum and on the dates provided in
the Credit Agreement.
  This Note
is one of the Notes referred to in the Credit Agreement and evidences Loans made
by the Lender to the Borrower thereunder. Capitalized terms used in this Note
have the respective meanings assigned to them in the Credit Agreement and the
terms and conditions of the Credit Agreement are expressly incorporated herein
and made a part hereof.
  The
Credit Agreement provides for the acceleration of the maturity of the Loans
evidenced by this Note upon the occurrence of certain events (and for payment of
collection costs in connection therewith) and for prepayments of Loans upon the
terms and conditions specified therein. In the event this Note is not paid when
due at any stated or accelerated maturity, the Borrower agrees to pay, in
addition to principal and interest, all costs of collection, including
reasonable attorney fees.
  The date,
amount, type, interest rate and duration of Interest Period (if applicable) of
each Loan made by the Lender to the Borrower, and each payment made on account
of the principal thereof, shall be recorded by the Lender on its books; provided that the
failure of the Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower to make a payment when due of any amount
owing under the Credit Agreement or under this Note in respect of the Loans to
be evidenced by this Note, and each such recordation or endorsement shall be
prima facie evidence of such information, absent manifest error.
  Except as
permitted by Section 11.3(b) of the Credit Agreement, this Note may not be
assigned by the Lender to any other Person.
  THIS NOTE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW
RULES).
   
  IN
WITNESS WHEREOF, the Borrower has caused this Note to be executed as of the date
first above written.
  TEXAS-NEW
      MEXICO POWER COMPANYa
      Texas corporationBy:________________________________Name:______________________________Title:_______________________________
  
  EXHIBIT
2.3
  FORM
OF
 NOTICE OF
CONTINUATION/CONVERSION
  TO:
              JPMorgan
      Chase Bank, N.A., as Administrative
Agent
  RE:
              Credit
      Agreement dated as of March 7, 2008 among Texas-New Mexico Power Company,
      a Texas corporation (the “Borrower”), JPMorgan Chase Bank, N.A., as
      Administrative Agent, and the Lenders named therein (as the same may be
      amended, modified, extended or restated from time to time, the “Credit
      Agreement”)
  DATE:
              _____________,
      2008
 ____________________________________________________________
  1.
              This
      Notice of Continuation/Conversion is made pursuant to the terms of the
      Credit Agreement.  All capitalized terms used herein unless
      otherwise defined shall have the meanings set forth in the Credit
      Agreement.
  2.
              Please
      be advised that the Borrower is requesting that a portion of the current
      outstanding Loans advanced to it in the amount of $__________, currently
      accruing interest at ___________, be extended or converted as of ______,
      2008 at the interest rate option set forth in paragraph 3
      below.
  3.
              The
      interest rate option applicable to the extension or conversion of all or
      part of the existing Loans referenced above shall
  be:
  a.
              _________
              
              the
      Base Rateb.
              _________
              
              the
      Adjusted Eurodollar Rate for an Interest Period of:________
      one month________
      two months________
      three months
 4.
              As
      of the date hereof, no Default or Event of Default has occurred and is
      continuing.
  
 TEXAS-NEW
      MEXICO POWER COMPANYa
      Texas corporationBy:________________________________Name:______________________________Title:_______________________________
 
  
  EXHIBIT
7. l(c)
  FORM OF
  COMPLIANCE
CERTIFICATE
  TO:
              JPMorgan
      Chase Bank, N.A., as Administrative
Agent
  RE:
              Credit
      Agreement dated as of March 7, 2008 among Texas-New Mexico Power Company,
      a Texas corporation (the “Borrower”), JPMorgan Chase Bank, N.A., as
      Administrative Agent, and the Lenders named therein (as the same may be
      amended, modified, extended or restated from time to time, the “Credit
      Agreement”)
  DATE:
              _____________,
      2008
 ____________________________________________________________
  Pursuant
to the terms of the Credit Agreement, I, ______________, a Financial Officer of
Texas-New Mexico Power Company (the “Borrower”), hereby
certify on behalf of the Borrower that, as of the quarter ending ___________,
2008, the statements below are accurate and complete in all respects (all
capitalized terms used below shall have the meanings set forth in the Credit
Agreement):
  a.           Attached
hereto as Schedule 1 are calculations (calculated as of the date of the
financial statements referred to in paragraph c. below) demonstrating compliance
by the Borrower with the financial covenant contained in Section 7.2 of the
Credit Agreement.
  b.           No
Default or Event of Default exists under the Credit Agreement, except as
indicated on a separate page attached hereto, together with an explanation of
the action taken or proposed to be taken by the Borrower with respect
thereto.
  c.           The
quarterly/annual financial statements for the fiscal quarter/year ended
__________, 2008 which accompany this certificate fairly present in all material
respects the financial condition of the Borrower and its Subsidiaries and have
been prepared in accordance with GAAP, subject to changes resulting from normal
year-end audit adjustments and except that the quarterly financial statements
have fewer footnotes than annual statements.
   
  TEXAS-NEW
      MEXICO POWER COMPANYa
      Texas corporationBy:________________________________Name:______________________________Title:_______________________________
  
  SCHEDULE
1
  TO
EXHIBIT 7.1(c)
  FINANCIAL COVENANT
CALCULATIONS
  
 A.  Debt
Capitalization
  1.Consolidated
      Indebtedness of the Borrower
              $________________2.Consolidated
      Capitalization of the Borrower
              $________________3.Debt
      to Capitalization Ratio (Line A1 ÷ A2)
              ___________
      to 1.0Maximum
      Permitted
              0.65
      to 1.0
  
  EXHIBIT
11.3(b)
  FORM
OF
  ASSIGNMENT AND
ASSUMPTION
  
  This
Assignment and Assumption (the “Assignment and
Assumption”) is dated as of the Effective Date set forth below and is
entered into by and between ____________ (the “Assignor”) and
________________ (the “Assignee”).  Capitalized
terms used but not defined herein shall have the meanings given to them in the
Credit Agreement identified below (as amended, the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the
Assignee.  The Standard Terms and Conditions set forth in Schedule 1
attached hereto (the “Standard Terms and
Conditions”) are hereby agreed to and incorporated herein by reference
and made a part of this Assignment and Assumption as if set forth herein in
full.
  For an
agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (a) all of the Assignor’s rights and
obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the
amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under the respective facilities
identified below and (b) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of the Assignor (in
its capacity as a Lender) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (a) above (the rights and obligations sold
and assigned pursuant to clauses (a) and (b) above being referred to herein
collectively as, the “Assigned
Interest”).  Such sale and assignment is without recourse to
the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.
  1.           Assignor:
              
              ______________________________2.           Assignee:
              
              ______________________________and
      is an Affiliate/Approved Fund of3.           Borrower:
              
              Texas-New
      Mexico Power Company4.           Administrative
      Agent:
              
              JPMorgan
      Chase Bank, N.A. as the Administrative Agent under the Credit
      Agreement
  
  5.           Credit
      Agreement:
              
              Term
      Loan Credit Agreement dated as of March 7, 2008 among the Borrower, the
      Lenders party thereto and the Administrative Agent.6.           Assigned
      Interest:
 
 Aggregate
      Amount of
                Commitment/Loans
      for
                all
      Lenders
              Amount
      of
                Commitment/Loans
                Assigned
              Percentage
      Assigned of Commitment/Loans$
              $
              
              %
 
 7.           After
giving effect to the foregoing assignment, the Assignor and the Assignee shall
have the following Commitments, Pro Rata Shares and outstanding
Loans:
  Commitments
              Pro
      Rata Share
              Outstanding
                LoansAssignorAssignee
 8.           Trade
Date:                                                _____________
  Effective
Date:  ______________ ___, 2008
   
  The terms
set forth in this Assignment and Assumption are hereby agreed to:
  ASSIGNOR[NAME
      OF ASSIGNOR]By:Name:Title:ASSIGNEE[NAME
      OF ASSIGNEE]By:Name:Title:Consented
      to and Accepted if applicable:JPMorgan
      Chase Bank, N.A.,as
      Administrative AgentBy:Name:Title:Consented
      to if applicable:TEXAS-NEW
      MEXICO POWER COMPANYBy:Name:Title:
 
  
  SCHEDULE
1
  TO
EXHIBIT 11.3(b)
  TERMS AND
CONDITIONS FOR
  ASSIGNMENT
AND ASSUMPTION
  1.  Representations and
Warranties.
  1.1  Assignor.  The
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of
any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any Agreement or
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Credit Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Documents or any collateral thereunder, (iii) the financial condition of the
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Credit Document or (iv) the performance or observance by the
Borrower, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Credit Document.
  1.2  Assignee.  The
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the Credit Agreement, (ii) it meets all requirements of an
Eligible Assignee under the Credit Agreement (subject to receipt of such
consents as may be required under the Credit Agreement), (iii) from and after
the Effective Date, it shall be bound by the provisions of the Credit Agreement
as a Lender thereunder and, to the extent of the Assigned Interest, shall have
the obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.1 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Administrative Agent or
any other Lender, and (v) if it is a foreign lender, attached to the Assignment
and Assumption is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Assignee;
and (b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be
performed by it as a Lender.
   
  2.  Payments.  From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.
  3.  General
Provisions.  This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns.  This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument.  Delivery of an executed counterpart of a signature page
of this Assignment and Assumption by telecopy shall be effective as delivery of
a manually executed counterpart of this Assignment and
Assumption.  This Assignment and Assumption shall be governed by, and
construed in accordance with, the law of the State of New York.