EXHIBIT
10.01


 




 





$600,000,000


 


 


CREDIT AGREEMENT


 


 


among


 


XCEL ENERGY INC.,


 


as Borrower,


 


 


The Several Lenders from Time to Time Parties Hereto,


 


 


THE BANK OF NEW YORK,


 


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


 


and


 


CITICORP USA, INC.,


 


as Documentation Agents,


 


 


BARCLAYS BANK PLC,


 


as Syndication Agent,


 


 


and


 


 


JPMORGAN CHASE BANK,


 


as Administrative Agent


 


 


Dated as of November 4, 2004


 




 


 





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


 


as Joint Lead Arrangers and Bookrunners


 





















 


TABLE OF CONTENTS


 


	
  SECTION 1.

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Defined Terms

  	
   

  
	
  1.2

  	
  Other Definitional
  Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  AMOUNT AND TERMS OF REVOLVING
  COMMITMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Revolving
  Commitments

  	
   

  
	
  2.2

  	
  Procedure
  for Revolving Loan Borrowing

  	
   

  
	
  2.3

  	
  Fees.

  	
   

  
	
  2.4

  	
  Termination
  or Reduction of Revolving Commitments

  	
   

  
	
  2.5

  	
  Optional
  Prepayments

  	
   

  
	
  2.6

  	
  Conversion
  and Continuation Options

  	
   

  
	
  2.7

  	
  Limitations
  on Eurodollar Tranches

  	
   

  
	
  2.8

  	
  Interest
  Rates and Payment Dates

  	
   

  
	
  2.9

  	
  Computation
  of Interest and Fees

  	
   

  
	
  2.10

  	
  Inability
  to Determine Interest Rate

  	
   

  
	
  2.11

  	
  Pro Rata Treatment
  and Payments

  	
   

  
	
  2.12

  	
  Requirements of
  Law

  	
   

  
	
  2.13

  	
  Taxes

  	
   

  
	
  2.14

  	
  Indemnity

  	
   

  
	
  2.15

  	
  Change of Lending
  Office

  	
   

  
	
  2.16

  	
  Replacement of
  Lenders

  	
   

  
	
  2.17

  	
  Extension
  of Revolving Termination Date

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  LETTERS
  OF CREDIT

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  L/C Commitment

  	
   

  
	
  3.2

  	
  Procedure
  for Issuance of Letter of Credit

  	
   

  
	
  3.3

  	
  Fees and Other
  Charges

  	
   

  
	
  3.4

  	
  L/C Participations

  	
   

  
	
  3.5

  	
  Reimbursement
  Obligation of the Borrower

  	
   

  
	
  3.6

  	
  Obligations
  Absolute

  	
   

  
	
  3.7

  	
  Letter of Credit
  Payments

  	
   

  
	
  3.8

  	
  Applications

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Financial
  Condition

  	
   

  
	
  4.2

  	
  No Change

  	
   

  
	
  4.3

  	
  Existence;
  Compliance with Law

  	
   

  
	
  4.4

  	
  Power;
  Authorization; Enforceable Obligations

  	
   

  
	
  4.5

  	
  No Legal Bar

  	
   

  
	
  4.6

  	
  Litigation

  	
   

  



 





















 


	
  4.7

  	
  Ownership
  of Property; Liens

  	
   

  
	
  4.8

  	
  Taxes

  	
   

  
	
  4.9

  	
  Federal
  Regulations

  	
   

  
	
  4.10

  	
  ERISA

  	
   

  
	
  4.11

  	
  Investment
  Company Act; Other Regulations

  	
   

  
	
  4.12

  	
  Use of Proceeds

  	
   

  
	
  4.13

  	
  Accuracy of Information, etc

  	
   

  
	
  4.14

  	
  Solvency

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  CONDITIONS
  PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Conditions to
  Initial Extension of Credit

  	
   

  
	
  5.2

  	
  Conditions
  to Each Extension of Credit

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Financial
  Statements

  	
   

  
	
  6.2

  	
  Certificates;
  Other Information

  	
   

  
	
  6.3

  	
  Payment
  of Obligations and Taxes

  	
   

  
	
  6.4

  	
  Maintenance
  of Existence; Compliance

  	
   

  
	
  6.5

  	
  Maintenance
  of Property; Insurance

  	
   

  
	
  6.6

  	
  Inspection of
  Property; Books and Records; Discussions

  	
   

  
	
  6.7

  	
  Notices

  	
   

  
	
  6.8

  	
  Environmental Laws

  	
   

  
	
  6.9

  	
  Ownership
  of Significant Subsidiaries

  	
   

  
	
  6.10

  	
  Scope of Buisness

  	
   

  
	
  6.11

  	
  Significant
  Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  NEGATIVE
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Ratio of Funded
  Debt to Total Capital

  	
   

  
	
  7.2

  	
  Liens

  	
   

  
	
  7.3

  	
  Fundamental
  Changes

  	
   

  
	
  7.4

  	
  Disposition of
  Property

  	
   

  
	
  7.5

  	
  Transactions
  with Affiliates

  	
   

  
	
  7.6

  	
  Swap Agreements

  	
   

  
	
  7.7

  	
  Clauses
  Restricting Subsidiary Distributions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  EVENTS
  OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  THE
  AGENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Appointment

  	
   

  
	
  9.2

  	
  Delegation of
  Duties

  	
   

  
	
  9.3

  	
  Exculpatory
  Provisions

  	
   

  
	
  9.4

  	
  Reliance by
  Administrative Agent

  	
   

  
	
  9.5

  	
  Notice of Default

  	
   

  
	
  9.6

  	
  Non-Reliance on
  Agents and Other Lenders

  	
   

  



 





















 


	
  9.7

  	
  Indemnification

  	
   

  
	
  9.8

  	
  Agent
  in Its Individual Capacity

  	
   

  
	
  9.9

  	
  Successor
  Administrative Agent

  	
   

  
	
  9.10

  	
  Documentation
  Agent and Syndication Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Amendments and
  Waivers

  	
   

  
	
  10.2

  	
  Notices

  	
   

  
	
  10.3

  	
  No Waiver;
  Cumulative Remedies

  	
   

  
	
  10.4

  	
  Survival
  of Representations and Warranties

  	
   

  
	
  10.5

  	
  Payment of
  Expenses and Taxes

  	
   

  
	
  10.6

  	
  Successors and
  Assigns; Participations and Assignments

  	
   

  
	
  10.7

  	
  Adjustments; Set-off

  	
   

  
	
  10.8

  	
  Counterparts

  	
   

  
	
  10.9

  	
  Severability

  	
   

  
	
  10.10

  	
  Integration

  	
   

  
	
  10.11

  	
  GOVERNING
  LAW

  	
   

  
	
  10.12

  	
  Submission
  To Jurisdiction; Waivers

  	
   

  
	
  10.13

  	
  Acknowledgements

  	
   

  
	
  10.14

  	
  Confidentiality

  	
   

  
	
  10.15

  	
  WAIVERS OF JURY
  TRIAL

  	
   

  
	
  10.16

  	
  Delivery of
  Addenda

  	
   

  
	
  10.17

  	
  USA Patriot Act
  Notice

  	
   

  



 





















 


	
  SCHEDULES:

  
	
   

  
	
  1.1A

  	
  Revolving Commitments

  
	
  1.1B

  	
  Existing Letters of Credit

  
	
  4.1

  	
  Financial Condition

  
	
  4.2

  	
  No Change

  
	
  4.6

  	
  Litigation

  
	
  4.7

  	
  Ownership
  of Property; Liens

  
	
  7.2

  	
  Existing Liens

  
	
   

  	
   

  
	
  EXHIBITS:

  
	
   

  
	
  A

  	
  Form
  of Closing Certificate

  
	
  B

  	
  Form of Assignment and Assumption

  
	
  C

  	
  Form
  of Exemption Certificate

  
	
  D

  	
  Form of Addendum

  
	
  E-1

  	
  Form
  of New Lender Supplement

  
	
  E-2

  	
  Form of Increased Revolving
  Commitment Activation Notice

  
	
  F-1

  	
  Form
  of Extension Request

  
	
  F-2

  	
  Form
  of Continuation Notice

  



 





















 


CREDIT AGREEMENT (this “Agreement”),
dated as of November 4, 2004, among XCEL ENERGY INC., a Minnesota
corporation (the “Borrower”), the several banks and other financial
institutions or entities from time to time parties to this Agreement (the “Lenders”),
THE BANK OF NEW YORK, THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH and
CITICORP USA, INC., as documentation agents (in such capacity, the “Documentation
Agents”), BARCLAYS BANK PLC, as syndication agent (in such capacity, the “Syndication
Agent”), and JPMORGAN CHASE BANK, as administrative agent.


 


The parties hereto hereby agree as follows:


 


SECTION 1.  DEFINITIONS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Agreement”:  as defined in the preamble hereto.


 





















 


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


 




	
  Level

  	
   

  	
  Debt Rating

  	
   

  	
  Commitment

  Fee

  	
   

  	
  ABR

  Loans

  	
   

  	
  Eurodollar

  Loans/

  Letters of Credit

  	
   

  
	
  I

  	
   

  	
  >A-/A3

  	
   

  	
  0.10

  	
  %

  	
  0

  	
  %

  	
  0.50

  	
  %

  
	
  II

  	
   

  	
  BBB+/Baa1

  	
   

  	
  0.125

  	
  %

  	
  0

  	
  %

  	
  0.625

  	
  %

  
	
  III

  	
   

  	
  BBB/Baa2

  	
   

  	
  0.15

  	
  %

  	
  0

  	
  %

  	
  0.75

  	
  %

  
	
  IV

  	
   

  	
  BBB-/Baa3

  	
   

  	
  0.175

  	
  %

  	
  0

  	
  %

  	
  0.875

  	
  %

  
	
  V

  	
   

  	
  <BBB-/Baa3
  or

  unrated

  	
   

  	
  0.20

  	
  %

  	
  0.25

  	
  %

  	
  1.25

  	
  %

  






 


; provided that for each Excess
Utilization Day, the Applicable Margin set forth above on such day shall be
increased by 0.125% for (a) Eurodollar Loans and Letters of Credit and (b) ABR
Loans if the Debt Rating on such day is in Level V.


 


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


 


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


 


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


 


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


 


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


 


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


 










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


 


2





















 


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


 


“Borrower”:  as defined in the preamble hereto.


 


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


 


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


 


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


 


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


 


“Change in Control”  (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the SEC
thereunder as in effect on the date hereof), of Voting Stock representing more
than 30% of the aggregate ordinary voting power represented by the issued and
outstanding Voting Stock of the Borrower; (b) occupation of a majority of the
seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (i) nominated by the board of directors of the
Borrower nor (ii) appointed by directors so nominated; or (c) the acquisition
of direct or indirect Control of the Borrower by any Person or group.


 


“Closing Date”:  the date on which the conditions precedent
set forth in Section 5.1 shall have been satisfied, which date is November 4,
2004.


 


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


 


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


 


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


 


“Confidential Information Memorandum”:  the Confidential Information Memorandum dated
September 2004 and furnished to certain Lenders.


 


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


 


3





















 


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


 


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


 


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


 


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


 


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


 


“Designated Significant Subsidiary”:  any Significant Subsidiary designated as such
by the Borrower in accordance with Section 6.11, so long as such
designation shall not have been revoked pursuant to Section 6.11.


 


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


 


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


 


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


 


“Eligible Assignee”:  (a) a financial institution (including,
without limitation, a bank, commercial finance company or insurance company)
organized under the laws of the United States, or any state thereof, and having
a combined capital and surplus of at least $250,000,000; (b) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development, or a political
subdivision of any such country, and having a combined capital and surplus of
at least $250,000,000, provided that such bank is acting through a
branch or agency located in the United States; or (c) a person controlled by,
controlling, or under common control with any entity identified in clause (a)
or (b) above.


 


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


 


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


 


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


 


4





















 


“Eurocurrency Liabilities” in Regulation D of
the Board) maintained by a member bank of the Federal Reserve System.


 


“Eurodollar Base Rate”:  with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Page
3750 of the Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. 
In the event that such rate does not appear on Page 3750 of the Telerate
screen (or otherwise on such screen), the “Eurodollar Base Rate” shall
be determined by reference to such other comparable publicly available service
for displaying eurodollar rates as may be selected by the Administrative Agent
or, in the absence of such availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or about 11:00 A.M., New
York City time, two Business Days prior to the beginning of such Interest
Period in the interbank eurodollar market where its eurodollar and foreign
currency and exchange operations are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised therein.


 


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


 


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


 


	
   

  	
  Eurodollar Base Rate

  	
   

  
	
   

  	
  1.00 -
  Eurocurrency Reserve Requirements

  	
   

  



 


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


 


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


 


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


 


“Existing Credit Agreement”:  the Five-Year Credit Agreement, dated as of November 10,
2000, among the Borrower, The Bank of New York, as administrative agent, and
the lenders party thereto.


 


“Existing Letters of Credit” means the
two letters of credit set forth on Schedule 1.1B that have been issued
prior to the Closing Date by The Bank of New York in an aggregate amount not to
exceed $18,500,000.


 


“Existing Utility Subsidiary”:  means Northern States Power Company, a
Minnesota corporation (“NSP-Minnesota”); Northern States Power Company,
a Wisconsin corporation (“NSP-Wisconsin”); Southwestern Public Service
Company (“SPS”); and Public Service Company of Colorado (“PSCo”).


 


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


 


5





















 


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


 


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


 


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


 


“Funded Debt”:  of any Person at any date, without duplication,
(i) all indebtedness of such Person for borrowed money; (ii) the
deferred and unpaid balance of the purchase price owing by such Person on
account of any assets or services purchased (other than trade payables and
other accrued liabilities incurred in the ordinary course of business that are
not overdue by more than 180 days unless being contested in good faith) if such
purchase price is (A) due more than nine months from the date of incurrence of
the obligation in respect thereof or (B) evidenced by a note or a similar
written instrument; (iii) all Capital Lease Obligations of such Person;
(iv) all indebtedness secured by a Lien on any property owned by such
Person, whether or not such indebtedness has been assumed by such Person or is
nonrecourse to such Person; (v) notes payable and drafts accepted
representing extensions of credit to such Person whether or not representing
obligations for borrowed money (other than such notes or drafts for the
purchase price of assets or services to the extent such purchase price is
excluded from clause (ii) above); (vi) indebtedness of such Person
evidenced by bonds, notes or similar written instruments; (vii) any
non-contingent obligation of such Person in respect of letters of credit and
bankers’ acceptances issued for the account of such Person (other than such
letters of credit, bankers’ acceptances and drafts for the purchase price of
assets or services to the extent such purchase price is excluded from clause
(ii) above); (viii) net obligations of such Person under Swap Agreements
which constitute interest rate agreements or currency agreements;
(ix) guaranty obligations of such Person with respect to indebtedness for
borrowed money of another Person (including Affiliates); (x) all Off-Balance
Sheet Liabilities of such Person; and (xi) in the case of the Borrower,
any amounts due under Trust Preferred Securities; provided, however,
that in no event shall any calculation of Funded Debt of the Borrower include
deferred taxes.


 


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


 


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


 


6





















 


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


 


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


 


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


 


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


 


“Indebtedness”:  of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade payables or liabilities incurred in the
ordinary course of such Person’s business), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all Capital Lease Obligations of such Person, (f) all non-contingent
obligations of such Person in respect of acceptances, letters of credit, surety
bonds or similar arrangements, (g) the liquidation value of all mandatorily
redeemable preferred Capital Stock of such Person, (h) all Guarantee
Obligations of such Person in respect of obligations of the kind referred to in
clauses (a) through (g) above, (i) all obligations of the kind referred to in
clauses (a) through (h) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by)
any Lien on property (including accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for the payment
of such obligation, and (j) all net obligations of such Person in respect of
Swap Agreements.  The Indebtedness of any
Person shall include the Indebtedness of any other


 


7





















 


entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person’s ownership interest in or other relationship with
such entity, except to the extent the terms of such Indebtedness expressly
provide that such Person is not liable therefor.


 


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


 


“Insolvent”:  pertaining to a condition of Insolvency.


 


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


 


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


 


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


 


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


 


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


 


“Issuing Lender”:  each of JPMorgan Chase Bank, Barclays Bank
PLC and Wells Fargo Bank, N.A., and, with respect to the Existing Letters of
Credit and only for so long as such Existing Letters of Credit are outstanding,
The Bank of New York, or any affiliate of any of the foregoing, each in its
capacity as issuer of any Letter of Credit. 
Any other Lender (including, for avoidance of doubt, The Bank of New
York) selected by the Borrower to be an Issuing Lender shall become an Issuing
Lender with the consent of the Administrative Agent and such Lender, in such
capacity.


 


“L/C Commitment”:  $100,000,000.


 


8





















 


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


 


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


 


“Lenders”:  as defined in the preamble hereto.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


9





















 


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


 


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


 


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


 


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


 


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


 


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


 


 “Permitted
Lien”:  (i) any Lien securing a tax,
assessment or other governmental charge or levy or the claim of a materialman,
mechanic, carrier, warehouseman or landlord for labor, materials, supplies or
rentals incurred in the ordinary course of business, but only if payment
thereof shall not at the time be required to be made in accordance with Section 6.3;
(ii) any Lien on the properties and assets of a Significant Subsidiary of the
Borrower securing an obligation owing to the Borrower or another Significant
Subsidiary; (iii) any Lien consisting of a deposit or pledge made in the
ordinary course of business in connection with, or to secure payment of, obligations
under workers’ compensation, unemployment insurance, social security or
retirement benefits or similar legislation; (iv) any Lien arising pursuant to
an order of attachment, distraint or similar legal process arising in
connection with legal proceedings, but only if no Event of Default exists in
respect of such order; (v) any Lien existing on (A) any property or asset of
any Person at the time such Person becomes a Subsidiary or (B) any property or
asset at the time such property or asset is acquired by the Borrower or a
Subsidiary, but only, in the case of either (A) or (B), if and so long as (1)
such Lien was not created in contemplation of such Person becoming a Subsidiary
or such property or asset being acquired, (2) such Lien is and will remain confined
to the property or asset subject to it at the time such Person becomes a
Subsidiary or such property or asset is acquired and to improvements thereafter
erected on or attached to such property or asset or any property or asset
acquired in substitution or replacement thereof, (3) such Lien secures only the
obligation secured thereby at the time such Person becomes a Subsidiary or such
property or asset is acquired and


 


10





















 


(4) the obligation secured by such Lien is
not in default; (vi) any Lien in existence on the Closing Date to the extent
set forth on Schedule 7.2, but only, in the case of each such Lien, to the
extent it secures an obligation outstanding on the Closing Date to the extent
set forth on such Schedule; (vii) any Lien securing Purchase Money Indebtedness
but only if, in the case of each such Lien, (A) such Lien shall at all times be
confined solely to the property or asset the purchase price of which was
financed through the incurrence of the Purchase Money Indebtedness secured by
such Lien and to improvements thereafter erected on or attached to such
property or asset or any property or asset acquired in substitution or
replacement thereof and (B) such Lien attached to such property or asset within
90 days of the acquisition of such property or asset; (viii) deposits made in
the ordinary course of business to secure the performance of bids, trade
contracts (other than Indebtedness), operating leases, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business; (ix) deposits securing liability to insurance
carriers under insurance or self-insurance arrangements; (x) easements,
reservations, rights-of-way, restrictions, survey exceptions and other similar
encumbrances as to real property which customarily exist on properties of
corporations engaged in similar activities and similarly situated and which do
not materially interfere with the conduct of the business of the Borrower or any
Significant Subsidiary conducted at the property subject thereto; (xi) leases
and subleases of property owned or leased by the Borrower or any Significant
Subsidiary not interfering with the ordinary conduct of the business of the
Borrower and the Significant Subsidiaries; (xii) Liens securing obligations,
neither assumed by the Borrower or any Significant Subsidiary nor on account of
which the Borrower or any Significant Subsidiary customarily pays interest,
upon real estate or under which any Significant Subsidiary has a right-of-way,
easement, franchise or other servitude or of which any Significant Subsidiary
is the lessee of the whole thereof or any interest therein for the purpose of
locating transmission and distribution lines and related support structures,
pipe lines, substations, measuring stations, tanks, pumping or delivery
equipment or similar equipment; (xiii) Liens arising by virtue of any statutory
or common law provision relating to banker’s liens, rights of setoff or similar
rights as to deposit accounts or other funds maintained with a depository
institution; (xiv) any Lien constituting a renewal, extension or replacement of
a Lien constituting a Permitted Lien by virtue of clause (v), (vi) or (vii) of
this definition, but only if (A) at the time such Lien is granted and
immediately after giving effect thereto, no Default or Event of Default would
exist, (B) such Lien is limited to all or a part of the property or asset that
was subject to the Lien so renewed, extended or replaced and to improvements
thereafter erected on or attached to such property or asset or any property or
asset acquired in substitution or replacement thereof, (C) the principal amount
of the obligations secured by such Lien does not exceed the principal amount of
the obligations secured by the Lien so renewed, extended or replaced and (D)
the obligations secured by such Lien bear interest at a rate per annum not
exceeding the rate borne by the obligations secured by the Lien so renewed,
extended or replaced except for any increase that is commercially reasonable at
the time of such increase; (xv) Liens on any property of any Significant
Subsidiary securing Indebtedness of such Significant Subsidiary; and (xvi)
Liens not described in clauses (i) through (xv), inclusive, securing
Indebtedness or other liabilities or obligations of the Borrower and/or its
Significant Subsidiaries in an aggregate principal amount outstanding not to
exceed 10% of the consolidated net worth of the Borrower and its Subsidiaries
at the time of such incurrence.


 


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


 


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


 


11





















 


“PUHCA” means the Public Utility
Holding Company Act of 1935, as amended from time to time


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Requirement of Law”:  as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person
or any of its property is subject.


 


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


 


“Revolving Commitment”:  as to any Lender, the obligation of such
Lender to make Revolving Loans and participate in Letters of Credit in an
aggregate principal and/or face amount not to exceed the amount set forth under
the heading “Revolving Commitment” opposite such Lender’s name on Schedule 1.1A
or in the Assignment and Assumption or New Lender Supplement pursuant to which
such Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof.  The
original amount of the Total Revolving Commitments is $600,000,000.


 


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


 


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


 


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


 


12





















 


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


 


“Revolving Termination Date”:  November 4, 2009; provided that
with respect to Continuing Lenders only the Revolving Termination Date may be
extended to November 4, 2010 pursuant to Section 2.17.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


13





















 


qualified, all references to a “Subsidiary”
or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.


 


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


 


“Synthetic Lease Obligation”:  the monetary obligation of a Person under (i)
a so-called synthetic or off-balance sheet or tax retention lease or (ii) an
agreement for the use or possession of property creating obligations that do
not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as indebtedness of such
Person (without regard to accounting treatment).  The amount of Synthetic Lease Obligations of
any Person under any such lease or agreement shall be the amount which would be
shown as a liability on a balance sheet of such Person prepared in accordance
with GAAP if such lease or agreement were accounted for as a Capital Lease
Obligation.


 


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


 


“Total Capital”:  the sum of (A) stockholder’s equity, which is
the sum of common stock, premium on common stock, retained earnings and
preferred stock, but which excludes Trust Preferred Securities to the extent
included in Funded Debt and (B) Funded Debt, all determined with respect to the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.


 


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


 


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


 


“Transferee”:  any Assignee or Participant.


 


“Trust Indenture Act”: 
the Trust Indenture Act of 1939, as amended.


 


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


 


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


 


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


 


(iii)                               the Borrower or a
wholly-owned direct or indirect Subsidiary of the Borrower (as the case may be)
makes periodic interest payments on the subordinated debt, which interest 


 


14





















 


payments are in turn used
by the Trust Preferred Securities Subsidiary to make corresponding payments to
the holders of such preferred securities.


 


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


 


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


 


“United States”:  the United States of America.


 


“Voting Stock”:  Capital Stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such contingency.


 


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


 


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


 


(b)  As used herein and in the other Loan
Documents, and any certificate or other document made or delivered pursuant
hereto or thereto, (i) accounting terms relating to the Borrower not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to
the extent not defined, shall have the respective meanings given to them under
GAAP, (ii) the words “include”, “includes” and “including” shall be deemed to
be followed by the phrase “without limitation”, (iii) the word “incur” shall be
construed to mean incur, create, issue, assume, become liable in respect of or
suffer to exist (and the words “incurred” and “incurrence” shall have
correlative meanings), (iv) the words “asset” and “property” shall be construed
to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, Capital Stock, securities,
revenues, accounts, leasehold interests and contract rights, and (v) references
to agreements or other Contractual Obligations shall, unless otherwise
specified, be deemed to refer to such agreements or Contractual Obligations as
amended, supplemented, restated or otherwise modified from time to time.


 


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


 


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


 


15





















 


SECTION 2.  AMOUNT AND TERMS OF REVOLVING COMMITMENTS


 


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


 


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


 


(c) Any additional
bank, financial institution or other entity which, with the consent of the
Borrower and the Administrative Agent (which consent shall not be unreasonably
withheld), elects to become a “Lender” under this Agreement in connection with
an increase described in Section 2.1(b) shall execute a New Lender
Supplement (each, a “New Lender Supplement”), substantially in the form
of Exhibit E-1, whereupon such bank, financial institution or other entity (a “New
Lender”) shall become a Lender for all purposes and to the same extent as
if originally a party hereto and shall be bound by and entitled to the benefits
of this Agreement.


 


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


 


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


 


2.2           Procedure for Revolving Loan
Borrowing.   The Borrower may
borrow under the Revolving Commitments during the Revolving Commitment Period
on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 11:00 A.M., New York City time, (a) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans (or, with respect to any Eurodollar Loans to be


 


16





















 


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


 


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


 


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


 


2.4           Termination or Reduction of
Revolving Commitments.  The
Borrower shall have the right, upon not less than three Business Days’ notice
to the Administrative Agent, to terminate the Revolving Commitments or, from
time to time, to reduce the amount of the Revolving Commitments; provided
that no such termination or reduction of Revolving Commitments shall be
permitted if, after giving effect thereto and to any prepayments of the
Revolving Loans made on the effective date thereof, the Total Revolving
Extensions of Credit would exceed the Total Revolving Commitments.  Any such reduction shall be in an amount
equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently
the Revolving Commitments then in effect. 
Following an Extension Request pursuant to Section 2.17, the
Borrower may terminate the Revolving Commitments of the Non-Extending Lenders; provided
that the Borrower shall prepay the Revolving Loans of such Non-Extending
Lenders on the effective date of such termination, together with accrued but
unpaid interest and fees thereon and all other amounts then payable hereunder
to such Non-Extending Lenders.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


18





















 


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


 


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


 


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


 


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


 


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


 


(b)  the Administrative Agent shall have received
notice from the Required Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Revolving Loans during such Interest Period,


 


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


 


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


 


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


 


19





















 


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


 


(d)  Unless the Administrative Agent shall have
been notified in writing by any Lender prior to a borrowing that such Lender
will not make the amount that would constitute its share of such borrowing
available to the Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative Agent, and
the Administrative Agent may, in reliance upon such assumption, make available
to the Borrower a corresponding amount. 
If such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon, at a rate
equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation, for the period until such Lender makes such
amount immediately available to the Administrative Agent.  A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this paragraph
shall be conclusive in the absence of manifest error.  If such Lender’s share of such borrowing is
not made available to the Administrative Agent by such Lender within three
Business Days after such Borrowing Date, the Administrative Agent shall also be
entitled to recover such amount with interest thereon at the rate per annum
applicable to ABR Loans, on demand, from the Borrower.


 


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


 


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


 


(i) 
shall subject any Lender to any tax of any kind whatsoever with respect
to this Agreement, any Letter of Credit, any Application or any Eurodollar Loan
made by it, or change the basis of taxation of payments to such Lender in
respect thereof (except, in each case, for Non-


 


20










 













 


Excluded Taxes covered by Section 2.13
and changes in the rate of tax on the overall net income of such Lender);


 


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


 


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


 


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


 


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


 


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


 


2.13                           Taxes.  (a) All payments made by the Borrower under
this Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net


 


21





















 


income taxes and franchise taxes (imposed in lieu of net income taxes)
imposed on the Administrative Agent or any Lender as a result of a present or
former connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under,
or enforced, this Agreement or any other Loan Document).  If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded
Taxes”) or Other Taxes are required to be withheld from any amounts payable
to the Administrative Agent or any Lender hereunder, the amounts so payable to
the Administrative Agent or such Lender shall be increased to the extent
necessary to yield to the Administrative Agent or such Lender (after payment of
all Non-Excluded Taxes and Other Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrower shall not be required to increase any such
amounts payable to any Lender with respect to any Non-Excluded Taxes (i) that
are attributable to such Lender’s failure to comply with the requirements of
paragraph (d) or (e) of this Section or (ii) that are United States
withholding taxes imposed on amounts payable to such Lender at the time such
Lender becomes a party to this Agreement, except to the extent that such Lender’s
assignor (if any) was entitled, at the time of assignment, to receive such
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to this paragraph, so long as such additional amounts payable by the
Borrower are not increased thereby.


 


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


 


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


 


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


 


22





















 


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


 


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


 


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


 


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


 


2.15                           Change
of Lending Office.  Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of Section 2.12 or 2.13(a) with respect to such Lender, it will
use reasonable efforts (subject to overall policy considerations of such
Lender) to designate another lending


 


23





















 


office for any Revolving Loans affected by such event with the object
of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided, further, that nothing in
this Section shall affect or postpone any of the obligations of the
Borrower or the rights of any Lender pursuant to Section 2.12 or 2.13(a).


 


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


 


2.17                           Extension
of Revolving Termination Date. 
(a) The Borrower may, by written notice to the Administrative Agent in
the form of Exhibit F-1 (the “Extension
Request”) given no earlier than the first anniversary of the Closing
Date but no later than 45 days prior to the then applicable Revolving
Termination Date, request that the then applicable Revolving Termination Date
be extended to the date that is one calendar year after the then applicable
Revolving Termination Date.  Such
extension shall be effective with respect to each Lender that, by a written
notice in the form of Exhibit F-2 (a “Continuation Notice”) to the Administrative Agent given no
later than 20 days prior to the then applicable Revolving Termination Date,
consents, in its sole discretion, to such extension (each Lender giving a
Continuation Notice being referred to herein as a “Continuing Lender” and each Lender other than a Continuing
Lender being referred to herein as a “Non-Extending Lender”), provided
that (i) such extension shall be effective only if the aggregate Revolving
Commitments of the Continuing Lenders constitute at least 66-2/3% of the Total
Revolving Commitments on the date of the Extension Request, (ii) any Lender
that fails to submit a Continuation Notice at least 20 days prior to the then
applicable Revolving Termination Date shall be deemed not to have consented to
such extension and shall constitute a Non-Extending Lender and (iii) the
Borrower may give only one Extension Request during the term of this Agreement.  No Lender shall have any obligation to
consent to any extension of the Revolving Termination Date.  The Administrative Agent shall notify each
Lender of the receipt of an Extension Request promptly after receipt thereof.  The Administrative Agent shall notify the
Borrower and the Lenders no later than 15 days prior to the then applicable
Revolving Termination Date whether the Administrative Agent has received
Continuation Notices from Lenders holding Revolving Commitments aggregating at
least 66-2/3% of the Total Revolving Commitments on the date of the Extension
Request.


 


(b) The Revolving
Commitment of each Non-Extending Lender shall terminate at the close of
business on the Revolving Termination Date in effect prior to the delivery of
such Extension Request without giving any effect to such proposed
extension.  In accordance with Section 2.1(e),
on such


 


24





















 


Revolving
Termination Date, the Borrower shall pay to the Administrative Agent, for the
account of each Non-Extending Lender, an amount equal to such Non-Extending
Lender’s Revolving Loans, together with accrued but unpaid interest and fees
thereon and all other amounts then payable hereunder to such Non-Extending
Lender.  If, however, on or before the
date which is 10 days prior to the Revolving Termination Date in effect prior
to the delivery of an Extension Request pursuant to this Section 2.17, the
Borrower obtains a replacement Lender pursuant to Section 2.16 for any
such Non-Extending Lender and such replacement Lender agrees to the extension
of the Revolving Termination Date pursuant to this Section 2.17, then such
replacement Lender shall for all purposes of this Section 2.17 and this
Agreement be deemed to be a Continuing Lender, and the Revolving Loans of such
Lender shall not be due and payable pursuant to this Section 2.17(b).


 


SECTION 3.  LETTERS OF CREDIT


 


3.1                                 L/C
Commitment.  (a) Subject to
the terms and conditions hereof, each Issuing Lender, in reliance on the
agreements of the other Lenders set forth in Section 3.4(a), agrees to
issue Letters of Credit for the account of the Borrower on any Business Day
during the Revolving Commitment Period in such form as may be approved from
time to time by such Issuing Lender; provided that no Issuing Lender
shall issue any Letter of Credit if, (i) after giving effect to such issuance,
(A) the L/C Obligations would exceed the L/C Commitment or (B) the aggregate
amount of the Available Revolving Commitments would be less than zero or (ii)
such Issuing Lender shall have received written notice from the Administrative
Agent or the Borrower, at least one Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Section 5.2 shall not have been satisfied.  On the Closing Date, each Existing Letter of
Credit shall be deemed to be a Letter of Credit issued hereunder for the
account of the Borrower.  Each Letter of
Credit shall (i) be denominated in Dollars and (ii) expire no later than the
earlier of (x) the first anniversary of its date of issuance and (y) the date
that is five Business Days prior to the Revolving Termination Date (as it may
be extended), provided that any Letter of Credit with a one-year term
may provide for the renewal thereof for additional one-year periods (which
shall in no event extend beyond the date referred to in clause (y) above).


 


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


 


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


 


25





















 


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


 


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


 


3.4                                 L/C
Participations.  (a)  Each Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce such Issuing
Lender to issue Letters of Credit, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from such Issuing Lender,
on the terms and conditions set forth below, for such L/C Participant’s own
account and risk an undivided interest equal to such L/C Participant’s
Revolving Percentage in such Issuing Lender’s obligations and rights under and
in respect of each Letter of Credit and the amount of each draft paid by such
Issuing Lender thereunder.  Each L/C
Participant agrees with each Issuing Lender that, if a draft is paid under any
Letter of Credit for which such Issuing Lender is not reimbursed in full by the
Borrower in accordance with the terms of this Agreement, such L/C Participant
shall pay to such Issuing Lender upon demand at such Issuing Lender’s address
for notices specified herein an amount equal to such L/C Participant’s
Revolving Percentage of the amount of such draft, or any part thereof, that is
not so reimbursed.  Each L/C Participant’s
obligation to pay such amount shall be absolute and unconditional and shall not
be affected by any circumstance, including (i) any setoff, counterclaim,
recoupment, defense or other right that such L/C Participant may have against
such Issuing Lender, the Borrower or any other Person for any reason
whatsoever, (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in Section 5,
(iii) any adverse change in the condition (financial or otherwise) of the
Borrower, (iv) any breach of this Agreement or any other Loan Document by the
Borrower or any other L/C Participant or (v) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing


 


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


 


(c)  Whenever, at any time after an Issuing Lender
has made payment under any Letter of Credit and has received from any L/C
Participant its pro  rata share of such payment in accordance with



 


26





















 


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


 


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


 


3.6                                 Obligations
Absolute.  The Borrower’s
obligations under this Section 3 shall be absolute and unconditional under
any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment that the Borrower may have or have had against any Issuing
Lender, any beneficiary of a Letter of Credit or any other Person.  The Borrower also agrees with each Issuing
Lender that, absent gross negligence or willful misconduct of such Issuing
Lender, such Issuing Lender shall not be responsible for, and the Borrower’s
Reimbursement Obligations under Section 3.5 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee.  No Issuing Lender shall be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions resulting from the gross negligence or
willful misconduct of such Issuing Lender. 
The Borrower agrees that any action taken or omitted by an Issuing
Lender under or in connection with any Letter of Credit or the related drafts
or documents, if done in the absence of gross negligence or willful misconduct,
shall be binding on the Borrower and shall not result in any liability of such
Issuing Lender to the Borrower; provided that the Borrower shall not be
precluded from asserting any claim for direct (but not consequential) damages
suffered by the Borrower to the extent caused by (i) the gross negligence or
willful misconduct of such Issuing Lender in determining whether a request
presented under any Letter of Credit issued by it complied with the terms of
such Letter of Credit or (ii) such Issuing Lender’s willful failure or gross
negligence in failing to pay under any Letter of Credit issued by it after the
presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit.


 


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


 


27





















 


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


 


SECTION 4.  REPRESENTATIONS
AND WARRANTIES


 


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


 


4.1                                 Financial
Condition.  The audited
consolidated balance sheet of the Borrower as at December 31, 2003, and
the related consolidated statement of income and of cash flows for the fiscal
year then ended, reported on by and accompanied by an unqualified report from
Deloitte & Touche LLP, present fairly the consolidated financial condition
of the Borrower as at such date, and the consolidated results of its operations
and its consolidated cash flows for the fiscal year then ended.  The unaudited consolidated balance sheet of
the Borrower as at June 30, 2004, and the related unaudited consolidated
statements of income and cash flows for the six-month period ended on such
date, present fairly the consolidated financial condition of the Borrower as at
such date, and the consolidated results of its operations and its consolidated
cash flows for the six-month period then ended (subject to normal year-end
audit adjustments).  All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by the aforementioned firm of accountants and
disclosed therein).  Except as set forth
on Schedule 4.1, neither the Borrower nor any Significant Subsidiary has
any material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including any interest rate or foreign currency swap or exchange transaction or
other obligation in respect of derivatives, that are not reflected in the most
recent financial statements referred to in this paragraph.


 


4.2                                 No
Change.  Except as set forth
on Schedule 4.2, since December 31, 2003, there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.  Since the Closing Date, there has been no
adverse change in the financial effect of the matters set forth on Schedule 4.2
on the Borrower or its Significant Subsidiaries from that disclosed in or
contemplated by Schedule 4.2 that has had or could reasonably be expected
to have a Material Adverse Effect.


 


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


 


4.4                                 Power;
Authorization; Enforceable Obligations.  The Borrower has the corporate power and
authority to make, deliver and perform the Loan Documents to which it is a
party and to obtain extensions of credit hereunder.  The Borrower has taken all necessary organizational
action to authorize the execution, delivery and performance of the Loan
Documents to which it is a party and to authorize the extensions of credit on
the terms and conditions of this Agreement. 
No consent or authorization of, filing


 


28





















 


with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with (a) any extension
of credit hereunder when made (except for consents, authorizations, filings,
notices or other acts required with respect to such extension of credit that
have been obtained or made and are in full force and effect at the time of such
extension of credit) or (b) the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan Documents.  Each Loan Document has been duly executed and
delivered on behalf of the Borrower. 
This Agreement constitutes, and each other Loan Document upon execution
will constitute, a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).


 


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


 


4.6                                 Litigation.  Except as set forth on Schedule 4.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any Significant Subsidiary or against
any of their respective properties or revenues (a) with respect to any of the
Loan Documents or any of the transactions contemplated hereby or thereby, or
(b) that could reasonably be expected to have a Material Adverse Effect.  Since the Closing Date, there has been no
adverse change in the financial effect of the matters set forth on Schedule 4.6
on the Borrower or its Significant Subsidiaries from that disclosed in or
contemplated by Schedule 4.6 that has had or could reasonably be expected
to have a Material Adverse Effect.


 


4.7                                 Ownership
of Property; Liens.  Except
(i) for assets disposed of in the ordinary course of business since June 30,
2004 and (ii) as set forth on Schedule 4.7, on the Closing Date the
Borrower and its Significant Subsidiaries have good title, free of all Liens
other than Permitted Liens, to all of the material assets reflected in the
Borrower’s consolidated balance sheet as of June 30, 2004 as owned by the
Borrower and/or its Significant Subsidiaries.


 


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


 


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


 


29





















 


statement to the foregoing effect in conformity with the requirements
of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U.


 


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


 


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


 


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


 


4.13                           Accuracy
of Information, etc. 
The information, taken as a whole, contained in this Agreement, the
other Loan Documents, the Confidential Information Memorandum or the other
documents, certificates or statements furnished by or on behalf of the Borrower
to the Administrative Agent or the Lenders, or any of them, for use in
connection with the transactions contemplated by this Agreement or the other
Loan Documents, did not contain as of the date such information was so
furnished (or, in the case of the Confidential Information Memorandum, together
with all other information so furnished to the Lenders prior to the Closing
Date, as of the date of this Agreement), any untrue statement of a material
fact or omit to state a material fact necessary to make the information
contained herein or therein not misleading in light of the circumstances under
which such information was furnished. 
The projections and pro  forma financial information contained
in the materials referenced above are based upon good faith estimates and
assumptions believed by management of the Borrower to be reasonable at the time
made, it being recognized by the Lenders that such financial information as it
relates to future events is not to be viewed as fact and that actual results
during the period or periods covered by such financial information may differ
from the projected results set forth therein by a material amount.


 


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


 


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SECTION 5.  CONDITIONS
PRECEDENT


 


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


 


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


 


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


 


(c)  Financial Statements.  The Lenders shall have received (i) audited
consolidated financial statements of the Borrower for the 2001, 2002 and 2003
fiscal years and (ii) unaudited interim consolidated financial statements of
the Borrower for each fiscal quarter ended after the date of the latest
applicable financial statements delivered pursuant to clause (i) of this
paragraph as to which such financial statements are available, and such
financial statements shall not, in the reasonable judgment of the Lenders,
reflect any material adverse change in the consolidated financial condition of
the Borrower, as reflected in the financial statements or projections contained
in the Confidential Information Memorandum.


 


(d)  Projections.  The Lenders shall have received satisfactory
projections, on an annual basis, of the Borrower and its Subsidiaries through
2009.


 


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


 


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


 


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


 


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


 


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


 


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(ii)  the
legal opinion of Gary R. Johnson, general counsel of the Borrower.


 


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


 


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


 


(a)  Representations and Warranties.  Each of the representations and warranties
made by the Borrower in or pursuant to the Loan Documents shall be true and
correct in all material respects on and as of such date as if made on and as of
such date, except to the extent any such representation or warranty is stated
to relate solely to an earlier date, in which case such representation or
warranty shall have been true and correct in all material respects as of such
earlier date; provided, however, that the representations
contained in Sections 4.2 and 4.6 need not be true and correct with respect to
the making of any extension of credit the sole purpose of which is to repay
commercial paper of the Borrower that is then due and payable.


 


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


 


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


 


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


 


SECTION 6.  AFFIRMATIVE
COVENANTS


 


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


 


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


 


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


 


(b)  as soon as available, but in any event
not later than 45 days after the end of each of the first three quarterly
periods of each fiscal year of the Borrower, the unaudited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the fiscal year through the end of
such quarter, setting forth in each case in


 


32





















 


comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(b) to take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal conduct
of its business, except (i) as otherwise permitted by Section 7.3


 


33





















 


and (ii) to the extent that failure to do so could
not, in the aggregate, reasonably be expected to have a Material Adverse
Effect; and


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)  (i) the occurrence of any Reportable
Event with respect to any Plan, a failure to make any required contribution to
a Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Plan, which in any case could reasonably
be expected to have a Material Adverse Effect; and


 


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


 


34





















 


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


 


6.8                                 Environmental
Laws. The Borrower shall and shall cause each of its Significant
Subsidiaries to:


 


(a) except to the
extent that failure to do so could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect, comply with, and ensure compliance
by all tenants and subtenants, if any, with, all applicable Environmental Laws,
and obtain and comply with and maintain, and ensure that all tenants and
subtenants, if any, obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws; and


 


(b) except to the extent that failure to do so could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect, conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and
promptly comply in all material respects with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws.


 


6.9                                 Ownership of
Significant Subsidiaries. The Borrower shall at all times (a)
directly own, beneficially and of record, 100% of each class of issued and
outstanding common stock of each Existing Utility Subsidiary and (b) except as
permitted by Section 6.11 or 7.3, directly or indirectly own, beneficially
and of record, 100% of each class of issued and outstanding common stock of each
other Significant Subsidiary.


 


6.10                           Scope
of Business.  The Borrower
shall, and shall cause each Significant Subsidiary to, engage only in
energy-related businesses, functionally related businesses (as interpreted
under PUHCA) or such other businesses as may be permitted pursuant to an order
issued by the SEC pursuant to PUHCA.


 


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


 


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


 


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


 


SECTION 7.  NEGATIVE COVENANTS


 


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


 


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


 


35





















 


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


 


7.3                                 Fundamental
Changes.  The Borrower shall
not, and shall not permit any of its Significant Subsidiaries to, directly or
indirectly, merge or consolidate with any Person, except that, if after giving
effect thereto no Default or Event of Default would exist, this Section 7.3
shall not apply to (a) any merger or consolidation of the Borrower with any one
or more Persons so long as (i) the successor entity (if other than the
Borrower) assumes, in form reasonably satisfactory to the Administrative Agent,
all of the obligations of the Borrower under this Agreement and (ii) the
successor (whether or not the Borrower) has a debt rating issued (and confirmed
after giving effect to such merger or consolidation) by S&P and Moody’s of
at least BBB- and Baa3, in each case with a stable outlook, (b) any merger or
consolidation of a Significant Subsidiary with another Subsidiary, provided
that the continuing Person shall be a Significant Subsidiary, and (c) any merger or consolidation of a Significant
Subsidiary (other than an Existing Utility Subsidiary) with another Person if
after giving effect thereto the survivor is no longer a Significant Subsidiary
and the assets of such Significant Subsidiary could have been Disposed of
pursuant to the provisions of Section 7.4 if such transaction were treated
as a Disposition of the assets of such Significant Subsidiary.


 


7.4                                 Disposition
of Property.  The Borrower
shall not, and shall not permit any of its Significant Subsidiaries to,
directly or indirectly, Dispose of any of its property, whether now owned or
hereafter acquired, except:


 


(a)  any Disposition of any asset or any
interest therein in the ordinary course of business;


 


(b)  any Disposition of any obsolete or
retired property not used or useful in its business;


 


(c)  any Disposition of any asset or any
interest therein to the Borrower or a Significant Subsidiary;


 


(d)  Dispositions
of assets to the extent that the net proceeds thereof are invested or
re-invested, or held as cash or cash equivalents for reinvestment, in each case
in other energy-related assets of the Borrower or any Significant Subsidiary;


 


(e)  the transfer of operational control of
transmission assets by the Borrower or any Significant Subsidiary to a regional
transmission organization, independent system operator or independent
transmission company approved by or required by the FERC pursuant to a FERC
order; and


 


(f)  any Disposition of any asset or any
interest therein the book value of which, together with the book value of any
other assets and interests therein Disposed of by the Borrower and the
Significant Subsidiaries during the twelve-month period ending with the month
during which such Disposition occurs, other than Dispositions to which this Section 7.4
does not otherwise apply by virtue of clauses (a), (b), (c), (d) or (e)
hereof, represents less than 10% of the consolidated total assets of the
Borrower and its Subsidiaries, as reflected on the financial statements most
recently delivered pursuant to Section 6.1(a) or (b) prior to such
Disposition, provided that the book value of all assets and interests
Disposed of before the Revolving Termination Date pursuant to this clause (f)
shall not exceed 30% of the consolidated total assets of the Borrower and its
Subsidiaries, as reflected on the financial statements most recently delivered
pursuant to Section 6.1(a) or (b) prior to such Disposition.


 


36





















 


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


 


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


 


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


 


SECTION 8.  EVENTS OF DEFAULT


 


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


 


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


 


(b)  any representation or warranty made or
deemed made by the Borrower herein or in any other Loan Document or that is
contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or any
such other Loan Document shall prove to have been inaccurate in any material
respect on or as of the date made or deemed made; or


 


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


 


(d)  the Borrower shall default in the
observance or performance of any other agreement contained in this Agreement or
any other Loan Document (other than as provided in paragraphs 


 


37





















 


(a) through (c) of this Section), and such default
shall continue unremedied for a period of 30 days after notice to the Borrower
from the Administrative Agent or the Required Lenders; or


 


(e)  any event or condition occurs that
results in any Material Indebtedness becoming due prior to its scheduled
maturity or that enables or permits the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; provided
that this clause (e) shall not apply to secured Indebtedness that becomes
due as a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness; or


 


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


 


(g)  (i) any Person shall engage in any
non-exempt “prohibited transaction” (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan, (ii) any “accumulated
funding deficiency” (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan subject to Section 412 of the
Code or Section 302 of ERISA or any Lien in favor of the PBGC or a Plan
shall arise on the assets of any Commonly Controlled Entity, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of the
Required Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes
of Title IV of ERISA, (v) in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan, any Commonly Controlled
Entity shall, or is reasonably likely to, incur any unpaid liability or (vi)
any other similar event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, could
reasonably be expected to have a Material Adverse Effect; or


 


(h)  one or more judgments or decrees shall
be entered against the Borrower or any Significant Subsidiary involving in the
aggregate a liability (not paid or fully covered by


 


38





















 


insurance as to which the relevant insurance company
has acknowledged coverage) of $50,000,000 or more, and such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 30 days from the entry thereof; or


 


(i)  a Change in Control shall occur;


 


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


 


SECTION 9.  THE AGENTS


 


9.1                                 Appointment.  Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto.   Notwithstanding any provision
to the contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein,
or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.


 


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


 


39





















 


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


 


9.4                                 Reliance
by Administrative Agent. 
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent.  The Administrative
Agent may deem and treat the payee of any Note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent.  The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action.  The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Required
Lenders (or, if so specified by this Agreement, all Lenders), and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Revolving Loans.


 


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


 


9.6                                 Non-Reliance
on Agents and Other Lenders. 
Each Lender expressly acknowledges that neither the Agents nor any of
their respective officers, directors, employees, agents,


 


40





















 


attorneys-in-fact or affiliates have made any representations or
warranties to it and that no act by any Agent hereafter taken, including any
review of the affairs of the Borrower or any affiliate of the Borrower, shall
be deemed to constitute any representation or warranty by any Agent to any
Lender.  Each Lender represents to the
Agents that it has, independently and without reliance upon any Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and its affiliates and made its own decision to make its Revolving
Loans hereunder and enter into this Agreement. 
Each Lender also represents that it will, independently and without
reliance upon any Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower and its
affiliates.  Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Borrower or any affiliate
of the Borrower that may come into the possession of the Administrative Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.


 


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


 


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


 


9.9                                 Successor
Administrative Agent.  The
Administrative Agent may resign as Administrative Agent upon 10 days’ notice to
the Lenders and the Borrower.  If the Administrative
Agent shall resign as Administrative Agent under this Agreement and the other
Loan Documents, then the Required Lenders shall appoint from among the Lenders
that would qualify as an Eligible Assignee a successor agent for the Lenders,
which successor agent shall (unless an Event of Default under Section


 


41





















 


8(a) or Section 8(f) with respect to the Borrower shall have
occurred and be continuing) be subject to approval by the Borrower (which approval
shall not be unreasonably withheld or delayed), whereupon such successor agent
shall succeed to the rights, powers and duties of the Administrative Agent, and
the term “Administrative Agent” shall mean such successor agent effective upon
such appointment and approval, and the former Administrative Agent’s rights,
powers and duties as Administrative Agent shall be terminated, without any
other or further act or deed on the part of such former Administrative Agent or
any of the parties to this Agreement or any holders of the Revolving
Loans.  If no successor agent has
accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above.  After any retiring Administrative Agent’s
resignation as Administrative Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.


 


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


 


SECTION 10.  MISCELLANEOUS


 


10.1                           Amendments
and Waivers.  Neither this
Agreement, any other Loan Document, nor any terms hereof or thereof may be
amended, supplemented or modified except in accordance with the provisions of
this Section 10.1.  The Required
Lenders and the Borrower may, or, with the written consent of the Required
Lenders, the Administrative Agent and the Borrower may, from time to time, (a)
enter into written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders
or of the Borrower hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement
or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (i) except as set forth in Section 2.17,
forgive the principal amount or extend the final scheduled date of maturity of
any Revolving Loan, reduce the stated rate of any interest or fee payable
hereunder (except in connection with the waiver of applicability of any
post-default increase in interest rates (which waiver shall be effective with
the consent of the Required Lenders)) or extend the scheduled date of any
payment thereof, or increase the amount or extend the expiration date of any
Lender’s Revolving Commitment, in each case without the written consent of each
Lender directly affected thereby; (ii) eliminate or reduce the voting rights of
any Lender under this Section 10.1 without the written consent of such
Lender; (iii) reduce any percentage specified in the definition of Required
Lenders or consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents, in
each case without the written consent of all Lenders; (iv) amend, modify or
waive any provision of Section 2.11(a) or Section 2.11(b) without the
written consent of each Lender directly affected thereby, (v) amend, modify or
waive any provision of Section 9 without the written consent of the
Administrative Agent; or (vi) amend, modify or waive any provision of Section 3
without the written consent of each Issuing Lender.  Notwithstanding anything contained herein to
the contrary, the affirmative vote of Lenders holding at least 66-2/3% of the
Total Revolving Commitments then in effect (or, if the Revolving Commitments
have been terminated, the Total Revolving Extensions of Credit then
outstanding) shall be required to amend, modify or waive any provision of Section 2.17.  Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Borrower, the Lenders, the Administrative Agent and all
future holders of the Revolving Loans. 
In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their


 


42





















 


former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver, except to the extent expressly
provided therein, shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.


 


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


 


	
  Borrower:

  	
   

  	
  800 Nicollet Mall, Suite 2900

  
	
   

  	
   

  	
  Minneapolis, MN 55402-2023

  
	
   

  	
   

  	
  Attention:

  
	
   

  	
   

  	
  Telecopy:

  
	
   

  	
   

  	
  Telephone:

  
	
   

  	
   

  	
   

  
	
  Administrative
  Agent:

  	
   

  	
  c/o Loan and Agency Services Group

  
	
   

  	
   

  	
  1111 Fannin, 10th Floor

  
	
   

  	
   

  	
  Houston, TX 77002

  
	
   

  	
   

  	
  Attention: Jamie Garcia

  
	
   

  	
   

  	
  Telecopy: 713-427-6307

  
	
   

  	
   

  	
  Telephone: 713-750-2377

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
   

  	
  JPMorgan Chase Bank

  
	
   

  	
   

  	
  270 Park Avenue, 4th Floor

  
	
   

  	
   

  	
  New York, NY 10017

  
	
   

  	
   

  	
  Attention: Peter Ling

  
	
   

  	
   

  	
  Telecopy: 212-270-0213

  
	
   

  	
   

  	
  Telephone: 212-270-4676

  
	
   

  	
   

  	
   

  
	
  and, if
  regarding Letters of Credit, with a copy to:

  	
   

  	
  JPMorgan Chase LOC Tampa

  
	
   

  	
   

  	
  10420 Highland Mn Dr

  
	
   

  	
   

  	
  Block 2, Floor 4

  
	
   

  	
   

  	
  Tampa, FL 33610

  
	
   

  	
   

  	
  Attention: James Alonzo

  
	
   

  	
   

  	
  Telecopy: 813-432-5161

  
	
   

  	
   

  	
  Telephone: 813-432-6339

  



 


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


 


Unless and until the Administrative Agent is notified in writing by the
Borrower to the contrary, the Borrower hereby authorizes the Administrative
Agent to rely on any notices in respect of the making, extension, conversion or
continuation of Revolving Loans and the Types of Revolving Loans and the
Interest Periods applicable to Eurodollar Loans given by any Responsible
Officer or any designee of a Responsible Officer of which the Administrative
Agent is notified in writing.  Notices by
the Borrower in respect of the making, extension, conversion or continuation of
Revolving Loans and the Types of Revolving Loans and the Interest Periods
applicable to Eurodollar Loans may be given telephonically,


 


43





















 


and the
Borrower agrees that the Administrative Agent may rely on any such notices made
by any person or persons which the Administrative Agent in good faith believes
to be acting on behalf of the Borrower. 
The Borrower agrees to deliver promptly to the Administrative Agent a
written confirmation of any telephonic notice, if such confirmation is
requested by the Administrative Agent. 
Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall
not apply to notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. 
The Administrative Agent or the Borrower may, in its discretion, agree
to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or communications.


 


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


 


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


 


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


 


10.5                           Payment
of Expenses and Taxes. 
The Borrower agrees (a) to pay or reimburse the Administrative Agent for
all its out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation
and administration of the transactions contemplated hereby and thereby,
including the reasonable fees and disbursements of counsel to the
Administrative Agent and filing and recording fees and expenses, with
statements with respect to the foregoing to be submitted to the Borrower prior
to the Closing Date (in the case of amounts to be paid on the Closing Date) and
from time to time thereafter on a quarterly basis or such other periodic basis
as the Administrative Agent shall deem appropriate, (b) to pay or reimburse
each Lender and the Administrative Agent for all its costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any such other documents,
including the reasonable fees and disbursements of counsel (including the allocated
fees and expenses of in-house counsel) to each Lender and of counsel to the
Administrative Agent, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, that may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender and the Administrative Agent and their
respective officers, directors, employees, affiliates, agents and controlling


 


44





















 


persons (each, an “Indemnitee”) harmless from and against any
and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance
and administration of this Agreement, the other Loan Documents and any such other
documents, including any of the foregoing relating to the use of proceeds of
the Revolving Loans or the violation of, noncompliance with or liability under,
any Environmental Law applicable to the operations of the Borrower or any of
its Subsidiaries or any of their properties and the reasonable fees and
expenses of legal counsel in connection with claims, actions or proceedings by
any Indemnitee against the Borrower under any Loan Document (all the foregoing
in this clause (d), collectively, the “Indemnified Liabilities”), provided,
that the Borrower shall have no obligation hereunder to any Indemnitee with
respect to Indemnified Liabilities to the extent such Indemnified Liabilities
resulted from the gross negligence or willful misconduct of such Indemnitee.  Without limiting the foregoing, and to the
extent permitted by applicable law, the Borrower agrees not to assert and to
cause its Subsidiaries not to assert, and hereby waives and agrees to cause its
Subsidiaries to waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or
related to Environmental Laws, that any of them might have by statute or otherwise
against any Indemnitee, except to the extent that such claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses have
resulted from the gross negligence or willful misconduct of such Indemnitee.  All amounts due under this Section 10.5
shall be payable not later than 10 days after written demand therefor.  Statements payable by the Borrower pursuant
to this Section 10.5 shall be submitted to the Borrower at the address of
the Borrower set forth in Section 10.2, or to such other Person or address
as may be hereafter designated by the Borrower in a written notice to the
Administrative Agent.  The agreements in
this Section 10.5 shall survive repayment of the Revolving Loans and all
other amounts payable hereunder.


 


10.6                           Successors
and Assigns; Participations and Assignments.  (a) 
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby (including any affiliate of an Issuing Lender that issues any
Letter of Credit), except that (i) the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section.


 


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


 


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


 


(B) the
Administrative Agent and each Issuing Lender.


 


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


 


(A) except in
the case of an assignment to a Lender or an affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Revolving
Commitments or Revolving Loans, the amount of the Revolving Commitments or
Revolving Loans of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not


 


45










 













 


be less than
$5,000,000 unless each of the Borrower, the Administrative Agent and each
Issuing Lender otherwise consent, provided that (1) no such consent of
the Borrower shall be required if an Event of Default has occurred and is
continuing and (2) such amounts shall be aggregated in respect of each Lender
and its affiliates, if any;


 


(B) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500; and


 


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


 


(iii) Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) below,
from and after the effective date specified in each Assignment and Assumption
the Assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 2.12, 2.13, 2.14 and 10.5 in respect of the period that it was a
Lender).  Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 10.6 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (c) of this Section.


 


(iv)  The Administrative Agent, acting for this
purpose as an agent of the Borrower, shall maintain at one of its offices a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Revolving
Commitments of, and principal amount of the Revolving Loans and L/C Obligations
owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Lenders and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.


 


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


 


(c)(i)  Any Lender may, without the consent of the
Borrower or the Administrative Agent, sell participations to one or more banks
or other entities (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of its
Revolving Commitments and the Revolving Loans owing to it); provided
that (A) such Lender’s obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent, each Issuing Lender and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement.  Any agreement pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this 


 


46





















 


Agreement; provided
that such agreement may provide that such Lender will not, without the consent
of the Participant, agree to any amendment, modification or waiver that (1)
requires the consent of such Lender pursuant to the proviso to the second
sentence of Section 10.1 and (2) directly affects such Participant.  Subject to paragraph (c)(ii) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.12, 2.13 and 2.14 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this
Section.  To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 10.7(b)
as though it were a Lender, provided such Participant shall be subject to Section 10.7(a)
as though it were a Lender.


 


(ii)  A Participant shall not be entitled to receive
any greater payment under Section 2.12 or 2.13 than the applicable Lender
would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. 
In addition, any Participant that is a Non-U.S. Lender shall not be
entitled to the benefits of Section 2.13 unless such Participant complies
with Section 2.13(d).


 


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


 


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


 


10.7         Adjustments;
Set-off. (a)  Except to the extent
that this Agreement expressly provides for payments to be allocated to a
particular Lender, if any Lender (a “Benefitted Lender”) shall, at any
time after the Revolving Loans and other amounts payable hereunder shall
immediately become due and payable pursuant to Section 8, receive any
payment of all or part of the Obligations owing to it, or receive any collateral
in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant
to events or proceedings of the nature referred to in Section 8(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, such Benefitted Lender shall purchase for cash from the
other Lenders a participating interest in such portion of the Obligations owing
to each such other Lender, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with
each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.


 


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


 


10.8         Counterparts. This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall 


 


47





















 


be
deemed to constitute one and the same instrument.  Delivery of an executed signature page of
this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof.  A
set of the copies of this Agreement signed by all the parties shall be lodged
with the Borrower and the Administrative Agent.


 


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


 


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


 


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


 


10.12       Submission
To Jurisdiction; Waivers. The Borrower hereby irrevocably and
unconditionally:


 


(a)          submits
for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States for the Southern District of New York, and
appellate courts from any thereof;


 


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


 


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


 


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


 


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


 


10.13       Acknowledgements.  The Borrower hereby acknowledges that:


 


48





















 


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


 


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


 


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


 


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


 


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


 


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


 


10.17       USA
Patriot Act Notice.  Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”), it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the Act.


 


10.18       Existing
Credit Agreement.  The Borrower, The
Bank of New York, as administrative agent and issuing bank, and the Banks (as
defined in the Existing Credit Agreement) party to the Existing Credit
Agreement comprising the “Required Banks” as defined therein, hereby agree that



 


49





















 


(i) the commitments and all other obligations of the Banks under the
Existing Credit Agreement shall terminate in their entirety immediately and
automatically upon the effectiveness of this Agreement, without further action
by any party to the Existing Credit Agreement, (ii) all accrued fees under the
Existing Credit Agreement shall be due and payable at such time and (iii)
subject to the funding loss indemnities in the Existing Credit Agreement, the
Borrower may prepay any and all loans outstanding thereunder on the date of
effectiveness of this Agreement.


 


50





















 


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


 


 


	
   

  	
  XCEL ENERGY
  INC.

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ George
  E. Tyson, II

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  George E.
  Tyson, II

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President & Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, as Administrative Agent

  and as a Lender

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ Peter M.
  Ling

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Peter M.
  Ling

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BARCLAYS
  BANK PLC, as Syndication Agent and as

  a Lender

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ Sydney
  G. Dennis

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Sydney G.
  Dennis

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF
  NEW YORK, as Documentation Agent

  and as a Lender

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ Cynthia
  D. Howells

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Cynthia D.
  Howells

  
	
   

  	
   

  	
  Title: 

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF
  TOKYO-MITSUBISHI, LTD.,

  CHICAGO BRANCH, as Documentation Agent and as a

  Lender

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ Patrick
  McCue

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Patrick
  McCue

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President & Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CITICORP
  USA, INC., as Documentation Agent and as

  a Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Dhaya Ranganathan

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Dhaya
  Ranganathan

  
	
   

  	
   

  	
  Title:

  	
  Director

  
												



 


 


51





















 


ADDENDUM


 


The
undersigned Lender (i) agrees to all of the provisions of the Credit Agreement,
dated as of November 4, 2004 (the “Credit Agreement”), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with
obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its Revolving Commitment
as set forth opposite the undersigned Lender’s name in Schedule 1.1A to the
Credit Agreement, as such amount may be changed from time to time as provided
in the Credit Agreement.    Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.


 


 


	
   

  	
  Wells Fargo
  Bank, National Association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Name of
  Lender)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ Scott
  Bjelde

  	
   

  
	
   

  	
   

  	
  Name:  Scott Bjelde

  
	
   

  	
   

  	
  Title:    Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer Barrett

  	
   

  
	
   

  	
   

  	
  Name:  Jennifer Barrett

  
	
   

  	
   

  	
  Title:    VP & Loan Team Manager

  
					



 


 


Dated as of November 2,
2004


 


52





















 


ADDENDUM


 


The
undersigned Lender (i) agrees to all of the provisions of the Credit Agreement,
dated as of November 4, 2004 (the “Credit Agreement”), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with
obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its Revolving Commitment
as set forth opposite the undersigned Lender’s name in Schedule 1.1A to
the Credit Agreement, as such amount may be changed from time to time as
provided in the Credit Agreement.   
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.


 


 


	
   

  	
  Harris
  Nesbitt Financing, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Cahal B.
  Carmody

  	
   

  
	
   

  	
   

  	
  Name:  Cahal B. Carmody

  
	
   

  	
   

  	
  Title:    Vice President

  



 


 


Dated as of November 2,
2004


 


53





















 


ADDENDUM


 


The
undersigned Lender (i) agrees to all of the provisions of the Credit Agreement,
dated as of November 4, 2004 (the “Credit Agreement”), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with
obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its Revolving Commitment
as set forth opposite the undersigned Lender’s name in Schedule 1.1A to
the Credit Agreement, as such amount may be changed from time to time as
provided in the Credit Agreement.   
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.


 


 


	
   

  	
  BNP Paribas

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Mark A. Renaud

  	
   

  
	
   

  	
   

  	
  Name:  Mark A. Renaud

  
	
   

  	
   

  	
  Title:    Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Francis J. DeLaney

  	
   

  
	
   

  	
   

  	
  Name:  Francis J. DeLaney

  
	
   

  	
   

  	
  Title:    Managing Director

  
					



 


 


Dated as of November 3,
2004


 


54





















 


ADDENDUM


 


The
undersigned Lender (i) agrees to all of the provisions of the Credit Agreement,
dated as of November 4, 2004 (the “Credit Agreement”), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with
obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its Revolving Commitment
as set forth opposite the undersigned Lender’s name in Schedule 1.1A to
the Credit Agreement, as such amount may be changed from time to time as
provided in the Credit Agreement.   
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.


 


 


	
   

  	
  Commerzbank
  AG, New York and Grand Cayman

  Branches

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew
  Campbell

  	
   

  
	
   

  	
   

  	
  Name:  Andrew Campbell

  
	
   

  	
   

  	
  Title:    Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew Kjoller

  	
   

  
	
   

  	
   

  	
  Name:  Andrew Kjoller

  
	
   

  	
   

  	
  Title:    Vice President

  
	
   

  	
   

  
					



 


Dated as of November 4,
2004


 


55





















 


ADDENDUM


 


The
undersigned Lender (i) agrees to all of the provisions of the Credit Agreement,
dated as of November 4, 2004 (the “Credit Agreement”), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with obligations
applicable to such Lender thereunder, including, without limitation, the
obligation to make extensions of credit to the Borrower in an aggregate
principal amount not to exceed the amount of its Revolving Commitment as set
forth opposite the undersigned Lender’s name in Schedule 1.1A to the
Credit Agreement, as such amount may be changed from time to time as provided
in the Credit Agreement.    Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.


 


 


	
   

  	
  Credit
  Suisse First Boston, Acting Through Its Cayman

  Islands Branch

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sarah Wu

  	
   

  
	
   

  	
   

  	
  Name: Sarah
  Wu

  
	
   

  	
   

  	
  Title:   Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Denise
  Alvarez

  	
   

  
	
   

  	
   

  	
  Name: Denise
  Alvarez

  
	
   

  	
   

  	
  Title:   Associate

  
					



 


 


Dated as of November 4,
2004


 


56





















 


ADDENDUM


 


The
undersigned Lender (i) agrees to all of the provisions of the Credit Agreement,
dated as of November 4, 2004 (the “Credit Agreement”), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with
obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its Revolving Commitment
as set forth opposite the undersigned Lender’s name in Schedule 1.1A to
the Credit Agreement, as such amount may be changed from time to time as
provided in the Credit Agreement.   
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.


 


 


	
   

  	
  William
  Street Commitment Corporation (Recourse only

  to assets of William Street Commitment Corp)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer
  M. Hill

  	
   

  
	
   

  	
   

  	
  Name:
  Jennifer M. Hill

  
	
   

  	
   

  	
  Title:   Chief Financial Officer

  



 


 


Dated as of November 3,
2004


 


57





















 


ADDENDUM


 


The
undersigned Lender (i) agrees to all of the provisions of the Credit Agreement,
dated as of November 4, 2004 (the “Credit Agreement”), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with
obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its Revolving Commitment
as set forth opposite the undersigned Lender’s name in Schedule 1.1A to
the Credit Agreement, as such amount may be changed from time to time as
provided in the Credit Agreement.   
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.


 


 


	
   

  	
  Keybank
  National Association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Keven D.
  Smith

  	
   

  
	
   

  	
   

  	
  Name:  Keven D. Smith

  
	
   

  	
   

  	
  Title:    Vice President

  



 


 


Dated as of November 4,
2004


 


58





















 


ADDENDUM


 


The
undersigned Lender (i) agrees to all of the provisions of the Credit Agreement,
dated as of November 4, 2004 (the “Credit Agreement”), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with
obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its Revolving Commitment
as set forth opposite the undersigned Lender’s name in Schedule 1.1A to
the Credit Agreement, as such amount may be changed from time to time as
provided in the Credit Agreement.   
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.


 


 


	
   

  	
  Mizuho
  Corporate Bank, Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark
  Gronich

  	
   

  
	
   

  	
   

  	
  Name:  Mark Gronich

  
	
   

  	
   

  	
  Title:    Senior Vice President

  



 


 


Dated as of November 4,
2004


 


59





















 


ADDENDUM


 


The
undersigned Lender (i) agrees to all of the provisions of the Credit Agreement,
dated as of November 4, 2004 (the “Credit Agreement”), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with
obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its Revolving Commitment
as set forth opposite the undersigned Lender’s name in Schedule 1.1A to
the Credit Agreement, as such amount may be changed from time to time as provided
in the Credit Agreement.    Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.


 


 


	
   

  	
  The Bank of
  Nova Scotia

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thane
  Rattew

  	
   

  
	
   

  	
   

  	
  Name:  Thane Rattew

  
	
   

  	
   

  	
  Title:    Director

  



 


 


Dated as of November 2,
2004


 


60





















 


ADDENDUM


 


The
undersigned Lender (i) agrees to all of the provisions of the Credit Agreement,
dated as of November 4, 2004 (the “Credit Agreement”), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with
obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its Revolving Commitment
as set forth opposite the undersigned Lender’s name in Schedule 1.1A to
the Credit Agreement, as such amount may be changed from time to time as
provided in the Credit Agreement.   
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.


 


 


	
   

  	
  Sumitomo
  Mitsui Banking Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Takashi
  Shimahara

  	
   

  
	
   

  	
   

  	
  Name:  Takashi Shimahara

  
	
   

  	
   

  	
  Title:    Joint General Manager

  



 


 


Dated as of November 3,
2004


 


61





















 


ADDENDUM


 


The
undersigned Lender (i) agrees to all of the provisions of the Credit Agreement,
dated as of November 4, 2004 (the “Credit Agreement”), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with
obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its Revolving Commitment
as set forth opposite the undersigned Lender’s name in Schedule 1.1A to
the Credit Agreement, as such amount may be changed from time to time as
provided in the Credit Agreement.   
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.


 


 


	
   

  	
  UBS Loan
  Finance LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joselin
  Fernendes

  	
   

  
	
   

  	
   

  	
  Name:  Joselin Fernendes

  
	
   

  	
   

  	
  Title:    Associate Director Banking Products

  Services, US

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Winslowe
  Ogbourne

  	
   

  
	
   

  	
   

  	
  Name:  Winslowe Ogbourne

  
	
   

  	
   

  	
  Title:    Associate Director Banking Products

  Services, US

  
	
   

  	
   

  
					



 


Dated as of November 2,
2004


 


62





















 


ADDENDUM


 


The
undersigned Lender (i) agrees to all of the provisions of the Credit Agreement,
dated as of November 4, 2004 (the “Credit Agreement”), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with
obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its Revolving Commitment
as set forth opposite the undersigned Lender’s name in Schedule 1.1A to
the Credit Agreement, as such amount may be changed from time to time as provided
in the Credit Agreement.    Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.


 


 


	
   

  	
  Morgan
  Stanley Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel
  Twenge

  	
   

  
	
   

  	
   

  	
  Name:  Daniel Twenge

  
	
   

  	
   

  	
  Title:    Vice President

  



 


 


Dated as of November 3,
2004


 


63





















 


ADDENDUM


 


The
undersigned Lender (i) agrees to all of the provisions of the Credit Agreement,
dated as of November 4, 2004 (the “Credit Agreement”), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with
obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its Revolving Commitment
as set forth opposite the undersigned Lender’s name in Schedule 1.1A to
the Credit Agreement, as such amount may be changed from time to time as
provided in the Credit Agreement.   
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.


 


 


	
   

  	
  U.S. Bank
  National Association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Christine Geer

  	
   

  
	
   

  	
   

  	
  Name:
  Christine Geer

  
	
   

  	
   

  	
  Title:   Assistant Vice President

  



 


 


Dated as of November 3,
2004


 


64





















 


ADDENDUM


 


The
undersigned Lender (i) agrees to all of the provisions of the Credit Agreement,
dated as of November 4, 2004 (the “Credit Agreement”), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with
obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its Revolving Commitment
as set forth opposite the undersigned Lender’s name in Schedule 1.1A to
the Credit Agreement, as such amount may be changed from time to time as
provided in the Credit Agreement.   
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.


 


 


	
   

  	
  Amarillo
  National Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Craig L.
  Sanders

  	
   

  
	
   

  	
   

  	
  Name: Craig
  L. Sanders

  
	
   

  	
   

  	
  Title:   Executive Vice President

  



 


 


Dated as of November 2,
2004


 


65





















 


SCHEDULE 1.1A


 


REVOLVING COMMITMENTS


 


	
  Lender

  	
   

  	
  Revolving Commitment

  	
   

  
	
  JPMorgan
  Chase Bank

  	
   

  	
  $

  	
  55,000,000

  	
   

  
	
  Barclays
  Bank PLC

  	
   

  	
  $

  	
  55,000,000

  	
   

  
	
  The Bank of
  New York

  	
   

  	
  $

  	
  40,000,000

  	
   

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

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  Citicorp
  USA, Inc.

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  Wells Fargo
  Bank, National Association

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
  Harris
  Nesbitt Financing, Inc.

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  BNP Paribas

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Commerzbank
  AB, New York Branch

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Credit
  Suisse First Boston

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  William
  Street Commitment Corporation

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  KeyBank
  National Association

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Mizuho
  Corporate Bank, Ltd.

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Bank of Nova
  Scotia – New York Agency

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Sumitomo
  Mitsui Banking Corporation

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  UBS Loan
  Finance LLC

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Morgan
  Stanley Bank

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  U.S. Bank
  National Association

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  Amarillo
  National Bank

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  600,000,000.00

  	
   

  



 





















 


SCHEDULE 1.1B


 


EXISTING
LETTERS OF CREDIT


 


1.                           Letter
of Credit No. S00048997


•                  Face
Amount:  $17,800,000.00


•                  Issued
by:  Bank of New York


•                  Beneficiary:  Bank of N.T. Butterfield and Sons Ltd.


•                  Expiration:  December 14, 2004, with automatic
renewal


 


2.                           Letter
of Credit No. S00042929


•                  Face
Amount:  $674,604.52


•                  Issued
by:  Bank of New York


•                  Beneficiary:  Bank of America, N.A. as Administrative Agent


•                  Expiration:  March 25, 2005, with automatic renewal


 


1





















 


SCHEDULE 4.1


 


FINANCIAL CONDITION


 


In addition to the matters disclosed in (i) the Consolidated Financial
Statements in the Borrower’s Annual Report on Form 10-K for the Fiscal Year
Ended December 31, 2003 and the Notes thereto and (ii) the Consolidated
Financial Statements in the Borrower’s Quarterly Report on Form 10-Q for the
Quarterly Period Ended June 30, 2004 and the Notes thereto, the Borrower
and its Significant Subsidiaries have the following material Guarantee
Obligations, contingent liabilities, liabilities for taxes, long-term leases,
forward or long-term commitments, including interest rate or foreign currency
swaps and exchange transactions, and obligations in respect of derivatives:


 


1. 
Disclosure in Management’s Discussion and Analysis of Borrower’s
Quarterly Report on Form 10-Q for the Quarterly Period Ended June 30, 2004
— Those liabilities for forward or long-term
commitments, including interest rate or foreign currency swaps and exchange transactions,
and obligations in respect of derivatives described in “Management’s Discussion
and Analysis” under the headings “Financial Market Risks”, “Energy Trading and
Hedging Activities” and “Interest Rate Risk” in the Borrower’s Quarterly Report
on Form 10-Q for the Quarterly Period Ended June 30, 2004.


 


2.  Derivative Valuation and Financial Impacts — Xcel
Energy records all derivative instruments on the balance sheet at fair value
unless exempted as a normal purchase or sale. Changes in non-exempt derivative
instrument’s fair value are recognized currently in earnings unless the
derivative has been designated in a qualifying hedging relationship. The
application of hedge accounting allows a derivative instrument’s gains and
losses to offset related results of the hedged item in the statement of
operations, to the extent effective. SFAS No. 133 – “Accounting for Derivative
Instruments and Hedging Activities” (SFAS No. 133), as amended, requires that
the hedging relationship be highly effective and that a company formally
designate a hedging relationship to apply hedge accounting.


 


The impact of
the components of hedges on Xcel Energy’s Other Comprehensive Income, included
in the Consolidated Statements of Stockholders’ Equity, are detailed in the
following tables:


 


	
   

  	
   

  	
  Three months ended

  Sept. 30,

  	
   

  
	
  (Millions of Dollars)

  	
   

  	
  2004

  	
   

  	
  2003

  	
   

  
	
  Accumulated
  other comprehensive income (loss) related to cash flow hedges at June 30

  	
   

  	
  $

  	
  18.1

  	
   

  	
  $

  	
  (38.5

  	
  )

  
	
  After-tax
  net unrealized gains (losses) related to derivatives accounted for as hedges

  	
   

  	
  (11.2

  	
  )

  	
  60.4

  	
   

  
	
  After-tax
  net realized gains on derivative transactions reclassified into earnings

  	
   

  	
  (4.6

  	
  )

  	
  (12.6

  	
  )

  
	
  Accumulated
  other comprehensive income (loss) related to cash flow hedges at Sept. 30

  	
   

  	
  $

  	
  2.3

  	
   

  	
  $

  	
  9.3

  	
   

  



 


	
   

  	
   

  	
  Nine months ended

  Sept. 30,

  	
   

  
	
  (Millions of Dollars)

  	
   

  	
  2004

  	
   

  	
  2003

  	
   

  
	
  Accumulated
  other comprehensive income related to cash flow hedges at Jan. 1

  	
   

  	
  $

  	
  8.1

  	
   

  	
  $

  	
  22.1

  	
   

  
	
  After-tax
  net unrealized gains related to derivatives accounted for as hedges

  	
   

  	
  2.6

  	
   

  	
  87.9

  	
   

  
	
  After-tax
  net realized gains on derivative transactions reclassified into earnings

  	
   

  	
  (8.4

  	
  )

  	
  (100.7

  	
  )

  
	
  Accumulated
  other comprehensive income (loss) related to cash flow hedges at Sept. 30

  	
   

  	
  $

  	
  2.3

  	
   

  	
  $

  	
  9.3

  	
   

  



 


Xcel Energy
records the fair value of its derivative instruments in its Consolidated
Balance Sheet as a separate line item identified as Derivative Instruments
Valuation for assets and liabilities, as well as current and noncurrent.


 


1





















 


3.  Cash Flow Hedges — Xcel
Energy and its subsidiaries enter into various instruments that effectively fix
the interest payments on certain floating rate debt obligations or effectively
fix the yield or price on a specified benchmark interest rate for a specific
period. These derivative instruments are designated as cash flow hedges for
accounting purposes, and the change in the fair value of these instruments is
recorded as a component of Other Comprehensive Income. Xcel Energy expects to
recognize in earnings during the next 12 months net gains from Other
Comprehensive Income related to interest rate cash flow hedge contracts of
approximately $0.2 million.


 


4.  Financial Market Risks — Xcel
Energy and its subsidiaries use a value-at-risk (VaR) model to assess the
market risk of their fixed price purchase and sales commitments, physical
forward contracts and commodity derivative instruments.  The VaR is calculated using a three day
holding period for both electricity and natural gas.  Previously, Xcel Energy calculated VaR using
a holding period of five days for electricity and three days for natural
gas.  However, the methodology was
changed to ensure consistency in risk measurement across both commodities.  Xcel Energy’s revised holding periods remain
consistent with current industry practice. 
VaR using the previous and current methodology for the three months
ended Sept. 30, 2004, is as follows:


 


Current
Methodology


 


	
  (Millions of Dollars)

  	
   

  	
  Period Ended

  Sept. 30, 2004

  	
   

  	
  Change from Period

  Ended

  June 30, 2004

  	
   

  	
  VaR Limit

  	
   

  	
  Average

  	
   

  	
  High

  	
   

  	
  Low

  	
   

  
	
  Electric
  Commodity Trading (1)

  	
   

  	
  $

  	
  1.29

  	
   

  	
  $

  	
  0.35

  	
   

  	
  $

  	
  5.0

  	
   

  	
  $

  	
  1.03

  	
   

  	
  $

  	
  1.72

  	
   

  	
  $

  	
  0.41

  	
   

  
																				



 


Previous
Methodology


 


	
  (Millions of Dollars)

  	
   

  	
  Period Ended

  Sept. 30, 2004

  	
   

  	
  Change from Period

  Ended

  June 30, 2004

  	
   

  	
  VaR Limit

  	
   

  	
  Average

  	
   

  	
  High

  	
   

  	
  Low

  	
   

  
	
  Electric
  Commodity Trading (1)

  	
   

  	
  $

  	
  1.66

  	
   

  	
  $

  	
  0.45

  	
   

  	
  $

  	
  6.0

  	
   

  	
  $

  	
  1.34

  	
   

  	
  $

  	
  2.22

  	
   

  	
  $

  	
  0.53

  	
   

  
																				



 










(1)       Comprises transactions for both NSP-Minnesota
and PSCo.


 


5.  Energy Trading and Hedging Activities — Xcel
Energy and its subsidiaries engage in energy trading activities that are accounted
for in accordance with SFAS No. 133, as amended. Xcel Energy and its
subsidiaries make wholesale purchases and sales of electricity, natural gas and
related energy products in order to optimize the value of their electric
generating facilities and retail supply contracts. Xcel Energy also engages in
a limited number of wholesale commodity transactions. Xcel Energy utilizes
forward contracts for the purchase and sale of electricity and capacity,
over-the-counter swap contracts, exchange-traded natural gas futures and
options, transmission contracts, natural gas transportation contracts and other
physical and financial contracts.


 


For the period
ended Sept. 30, 2004, these contracts, with the exception of transmission and
natural gas transportation contracts and contracts qualifying for a normal
purchase or normal sale scope exception, which meet the definition of a
derivative in accordance with SFAS No. 133 were marked to market. Changes in
fair value of energy trading contracts that do not qualify for hedge accounting
treatment are recorded in income in the reporting period in which they occur.


 


The changes to
the fair value of the energy trading contracts for the nine months ended Sept.
30, 2004 and 2003 were as follows:


 


	
   

  	
   

  	
  Nine months ended

  Sept. 30,

  	
   

  
	
  (Millions of Dollars)

  	
   

  	
  2004

  	
   

  	
  2003

  	
   

  
	
  Fair value
  of contracts outstanding at Jan. 1

  	
   

  	
  $

  	
  4.2

  	
   

  	
  $

  	
  (0.1

  	
  )

  
	
  Contracts
  realized or otherwise settled during the period

  	
   

  	
  (18.4

  	
  )

  	
  (5.5

  	
  )

  
	
  Fair value
  of trading contract additions and changes during the period

  	
   

  	
  14.9

  	
   

  	
  16.1

  	
   

  
	
  Fair value
  of contracts outstanding at Sept. 30

  	
   

  	
  $

  	
  0.7

  	
   

  	
  $

  	
  10.5

  	
   

  



 


2





















 


As of Sept.
30, 2004, the sources of fair value of the energy trading and hedging net
assets are as follows:


 


Trading Contracts


 


	
   

  	
   

  	
  Futures/Forwards

  	
   

  
	
  (Thousands of Dollars)

  	
   

  	
  Source of

  Fair Value

  	
   

  	
  Maturity Less

  Than 1 Year

  	
   

  	
  Maturity

  1 to 3 Years

  	
   

  	
  Maturity

  4 to 5 Years

  	
   

  	
  Maturity

  Greater

  Than 5 Years

  	
   

  	
  Total Futures/

  Forwards Fair Value

  	
   

  
	
  NSP-Minnesota

  	
   

  	
  (1)

  	
   

  	
  $

  	
  (750

  	
  )

  	
  (330

  	
  )

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  (1,080

  	
  )

  
	
   

  	
   

  	
  (2)

  	
   

  	
  2,027

  	
   

  	
  295

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  2,322

  	
   

  
	
  PSCo

  	
   

  	
  (1)

  	
   

  	
  466

  	
   

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  466

  	
   

  
	
   

  	
   

  	
  (2)

  	
   

  	
  (706

  	
  )

  	
  (115

  	
  )

  	
   

  	
   

  	
   

  	
   

  	
  (821

  	
  )

  
	
  Total
  Futures/Forwards Fair Value

  	
   

  	
   

  	
   

  	
  $

  	
  1,037

  	
   

  	
  $

  	
  (150

  	
  )

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  887

  	
   

  
																	



 


	
   

  	
   

  	
  Options

  	
   

  
	
  (Thousands of Dollars)

  	
   

  	
  Source of

  Fair Value

  	
   

  	
  Maturity Less

  Than 1 Year

  	
   

  	
  Maturity

  1 to 3 Years

  	
   

  	
  Maturity

  4 to 5 Years

  	
   

  	
  Maturity

  Greater

  Than 5 Years

  	
   

  	
  Total Options

  Fair Value

  	
   

  
	
  NSP-Minnesota

  	
   

  	
  (2)

  	
   

  	
  $

  	
  2

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  2

  	
   

  
	
  PSCo

  	
   

  	
  (2)

  	
   

  	
  (189

  	
  )

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  (189

  	
  )

  
	
  Total
  Options Fair Value

  	
   

  	
   

  	
   

  	
  $

  	
  (187

  	
  )

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  (187

  	
  )

  



 


Hedge Contracts


 


	
   

  	
   

  	
  Futures/Forwards

  	
   

  
	
  (Thousands of Dollars)

  	
   

  	
  Source of

  Fair Value

  	
   

  	
  Maturity Less

  Than 1 Year

  	
   

  	
  Maturity

  1 to 3 Years

  	
   

  	
  Maturity

  4 to 5 Years

  	
   

  	
  Maturity

  Greater

  Than 5 Years

  	
   

  	
  Total Futures/

  Forwards Fair Value

  	
   

  
	
  PSCo

  	
   

  	
  (2)

  	
   

  	
  $

  	
  823

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  823

  	
   

  
	
  Total
  Futures/Forwards Fair Value

  	
   

  	
   

  	
   

  	
  $

  	
  823

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  823

  	
   

  



 


	
   

  	
   

  	
  Options

  	
   

  
	
  (Thousands of Dollars)

  	
   

  	
  Source of

  Fair Value

  	
   

  	
  Maturity Less

  Than 1 Year

  	
   

  	
  Maturity

  1 to 3 Years

  	
   

  	
  Maturity

  4 to 5 Years

  	
   

  	
  Maturity

  Greater

  Than 5 Years

  	
   

  	
  Total Options

  Fair Value

  	
   

  
	
  NSP-Minnesota

  	
   

  	
  (2)

  	
   

  	
  $

  	
  5,848

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  5,845

  	
   

  
	
  NSP-Wisconsin

  	
   

  	
  (2)

  	
   

  	
  1,296

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1,296

  	
   

  
	
  PSCo

  	
   

  	
  (2)

  	
   

  	
  18,469

  	
   

  	
  1,060

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  19,529

  	
   

  
	
  Total
  Options Fair Value

  	
   

  	
   

  	
   

  	
  $

  	
  25,613

  	
   

  	
  $

  	
  1,060

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  26,673

  	
   

  
																	



 










(1) — Prices actively quoted or based on
actively quoted prices.


 


(2) — Prices
based on models and other valuation methods. These represent the fair value of
positions calculated using internal models when directly and indirectly quoted
external prices or prices derived from external sources are not available.
Internal models incorporate the use of options pricing and estimates of the
present value of cash flows based upon underlying contractual terms. The models
reflect management’s estimates, taking into account observable market prices,
estimated market prices in the absence of quoted market prices, the risk-free
market discount rate, volatility factors, estimated correlations of energy
commodity prices and contractual volumes. Market price uncertainty and other
risks also are factored into the model.


 


In the above
tables, normal purchases and sales transactions have been excluded. The fair
value of the hedge contracts include fair value adjustments reflected in Other
Comprehensive Income, Regulatory Assets or Liabilities or Revenues on the
Consolidated Statement of Operations.


 


3










 













 


At Sept. 30, 2004, a
10-percent increase in market prices over the next 12 months for trading
contracts would decrease pretax income from continuing operations by
approximately $2.1 million, whereas a 10-percent decrease would increase pretax
income from continuing operations by approximately $2.2 million.


 


6.  PSCo Quality of Service Plan — The PSCo quality of service plan (QSP)
provides for bill credits to Colorado retail customers, if PSCo does not
achieve certain operational performance targets. During the second quarter of
2004, PSCo filed its calendar year 2003 operating performance results for
electric service unavailability, phone response time, customer complaints,
accurate meter reading and gas leak repair time measures. PSCo did not achieve
the 2003 performance targets for the electric service unavailability measure or
the customer complaint measure. Additionally, PSCo filed revisions to its
previously filed 2002 electric QSP results for the service unavailability
measure. Based on the revised results, PSCo did not achieve the 2002
performance targets for the electric service unavailability measure, creating a
bill credit obligation for 2002 and increasing the maximum bill credit
obligation for subsequent years’ performance.


 


As of Dec. 31, 2003, PSCo
had accrued an aggregate estimated bill credit obligation of $6.4 million for
the 2002 and 2003 calendar years. Based on the updated information and filings
discussed above, during the second quarter of 2004, PSCo increased its
estimated bill credit liability for these years to $13.4 million. PSCo posted
the bill credits to retail customer accounts in the third quarter of 2004.  For calendar year 2004, PSCo has evaluated
its year to date performance under the QSP and has recorded an additional
liability of $4.2 million for the nine months ended Sept. 30, 2004.  Under the electric QSP, the estimated maximum
potential bill credit obligation for calendar 2004 performance is approximately
$15.2 million, assuming none of the performance targets are met.


 


7.  California Refund Proceeding  — A number of parties purchasing
energy in markets operated by the California Independent System Operator
(California ISO) or the California Power Exchange (PX) have asserted prices
paid for such energy were unjust and unreasonable and that refunds should be
made in connection with sales in those markets for the period Oct. 2, 2000
through June 20, 2001.  PSCo
supplied energy to these markets during this period and has been an active
participant in the proceedings.  The FERC
ordered an investigation into the California ISO and PX spot markets and
concluded that the electric market structure and market rules for wholesale
sales of energy in California were flawed and have caused unjust and
unreasonable rates for short-term energy under certain conditions. The FERC
ordered modifications to the market structure and rules in California and
established an ALJ to make findings with respect to, among other things, the
amount of refunds owed by each supplier based on the difference between what
was charged and what would have been charged in a more functional market, i.e.,
the “market clearing price,” which is based on the unit providing energy in an
hour with the highest incremental cost. The initial proceeding related to
California’s demand for $8.9 billion in refunds from power sellers. The ALJ
subsequently stated that after assessing a refund of $1.8 billion for power
prices, power suppliers were owed $1.2 billion because the state was holding
funds owed to suppliers. Because of the low volume of sales that PSCo had into
California after this date, PSCo’s exposure is estimated at approximately $3.4
million, which is offset by amounts owed by the California ISO to PSCo in
excess of that amount.


 


Certain
California parties sought rehearing of this decision. Among other things, they
asserted that the refund effective date should be set at an earlier date. They
have based this request in part on the argument that the use by sellers of
certain trading strategies in the California market resulted in unjust and
unreasonable rates, thereby justifying an earlier refund effective date. The
FERC subsequently allowed the purchasing parties to request from sellers,
including PSCo, additional information regarding the market participants’ use
of certain strategies and the effect those strategies may have had on the
market. Based on the additional information they obtained, these purchasing
entities argued to the FERC that use of these strategies did justify an earlier
refund effective date. PSCo has estimated that the requested earlier effective
date could increase PSCo’s refund exposure to approximately $17 million.  In October 2003, the FERC determined
that the refund effective date should not be reset to an earlier date, and gave
clarification how refunds should be determined


 


4





















 


for
the previously set refund period. 
Certain California parties appealed the FERC’s decision not to establish
an earlier refund effective date to United States Court of Appeals for the
Ninth Circuit.


 


In
a related case certain California parties also appealed the FERC orders
dismissing a complaint by the California Attorney General challenging
market-based rates as inconsistent with the Federal Power Act.  The California Attorney General also argued
that wholesale sellers, including PSCo, were violating their market-based rate
authorizations by not reporting their market-based sales on an individual
transaction basis.  Prior to a clarification
of its rules, most sellers, including PSCo, reported their transactions on an
aggregate basis.  On Sept. 9, 2004, the
United States Court of Appeals for the Ninth Circuit issued an opinion
rejecting the California Attorney General’s general challenge to market-based
rates, but agreed with its challenge regarding the failure to report individual
transactions.  It remanded the case to
the FERC to consider action to take to address these failures and suggested
that refunds would be appropriate.


 


8.  Fairhaven Power Company vs.
Encana Corporation, et al. — On Sept. 14, 2004, a class action complaint was filed in the U.S.
District Court for the Eastern District of California by Fairhaven Power Co.
and subsequently served on Xcel Energy. 
The lawsuit, filed on behalf of a purported class of natural gas
purchasers, alleges that Xcel Energy falsely reported natural gas trades to
market trade publications in an effort to artificially raise natural gas prices
in California and engaged in a conspiracy with other sellers of natural gas to
inflate prices.  Xcel Energy has not
responded to the complaint. The case is in the early stages, there has been no
discovery, and Xcel Energy intends to vigorously defend against these claims.


 


9.  Levee Station MGP Site
(NSP-Minnesota)  — NSP-Minnesota’s High Bridge Plant coal yard is located on the site of
the former Levee Station Manufactured Gas Plant (MGP).  In the 1990’s, the site was investigated and
partially remediated at a cost of approximately $2.9 million.  In 2006, NSP-Minnesota plans to commence
construction of the High Bridge Combined Cycle Generating Plant, as part of
Metro Emissions Reduction Program (MERP), on the site of the Levee
Station.  The construction of the new
plant will require the removal of buried structures and soil and groundwater
remediation.  Remediation activities will
begin in 2005.  The cost of the
additional remediation is estimated to be $4.5 million.


 


10.  PCB Storage and Disposal
(SPS) — In August 2004,
SPS received notice from the EPA contending SPS violated PCB storage and disposal
regulations with respect to storage of a drained transformer and related
solids.  The EPA contends the fine for
the alleged violation is approximately $1.2 million.  SPS is contesting the fine and in discussions
with the EPA.


 


11.  Lamb County Electric Cooperative
(SPS) — On July 24,
1995, Lamb County Electric Cooperative, Inc. (LCEC) petitioned the PUCT for a
cease and desist order against SPS alleging that SPS was unlawfully providing
service to oil field customers in LCEC’s certificated area.  On May 23, 2003, the PUCT issued an order
denying LCEC’s petition based on its determination that SPS was granted a
certificate in 1976 to serve the disputed customers.  LCEC appealed the decision to the District
Court in Travis County, Texas and on Aug. 12, 2004, the District Court affirmed
the decision of the PUCT.  On Sept. 9,
2004, LCEC appealed the District Court’s decision to the Court of Appeals for
the Third Supreme Judicial District of the State of Texas, which appeal is
currently pending.  On Oct. 18, 1996,
LCEC filed a suit for damages against SPS in the District Court in Lamb County,
Texas, based on the same facts alleged in the petition for a cease and desist
order at the PUCT.  This suit has been
dormant since it was filed, awaiting a final determination at the PUCT of the
legality of SPS providing electric service to the disputed customers.


 


5





















 


SCHEDULE 4.2


 


EVENTS AND DEVELOPMENTS SINCE DECEMBER 31,
2003


 


 


1.                                       See disclosure regarding the Borrower and its
Subsidiaries in the Borrower’s Annual Report on Form 10-K for the year ended December 31,
2003 filed with the SEC (the “2003 Form 10-K”) and the Borrower’s Quarterly
Report on Form 10-Q for the quarter ended June 30, 2004 (the “6/30/2004
Form 10-Q” and together with the 2003 Form 10-K, the “SEC Reports”).


 


2.                                       The following disclosure contains updated
information with respect to certain of the matters discussed in the SEC
Reports:


 


A.  Market Based Rate Authority Rule Proposal — On Oct. 6, 2004, FERC issued a notice of
proposed rulemaking proposing to require electric utilities with market-based
rates to file a “change in status report” regarding changes in transmission or
generation ownership or operation that could affect eligibility for
market-based rates.  The change, if
adopted, is not expected to go into effect in 2004.


 


B.  Midwest ISO Transmission and Energy Markets
Tariff (NSP Minnesota and NSP Wisconsin) — On Sept, 16, 2004, the FERC issued an order
largely upholding the ALJ initial decision. 
On Oct. 18, 2004, Xcel Energy requested rehearing of the FERC order,
arguing the order erroneously required NSP-Minnesota and NSP-Wisconsin to be
the financially responsible entity and noting several errors in the order.  A final decision is expected later in 2004.  On Aug. 6, 2004, after completion of the GFA
hearings and submission of the ALJ report, the FERC issued its initial
substantive order regarding the TEMT. 
The FERC approved the TEMT and reaffirmed the March 1, 2005
effective date, but ordered various changes to the filed tariff.  On Sept. 7, 2004, numerous requests for
rehearing were filed contesting various FERC decisions.  Implementation of a wholesale regional market
using the locational marginal cost pricing and financial transmission rights is
expected to provide a benefit to NSP-Minnesota and NSP-Wisconsin through a
reduction in overall wholesale power costs. However, Xcel Energy opposes
certain aspects of the TEMT as proposed, and believes the Midwest ISO should
implement the new market mechanisms only after it demonstrates that it will
protect reliability.  Xcel Energy cannot
at this time estimate the total financial impact of the new market
structure.  Xcel Energy also cannot
predict at this time whether the numerous remaining issues will be resolved in
time to allow the Midwest ISO market to commence on March 1, 2005, as
proposed.


 


C.  Midwest ISO Long Term Pricing Proposals Filed
(NSP Minnesota and NSP Wisconsin) — On Oct. 1, 2004, in response to 2002 and
2003 FERC orders requiring elimination of regional through-and-out rate
surcharges (RTORs), two competing proposals were filed to establish term
transmission pricing in the combined regions served by the Midwest ISO and PJM
Interconnection, Inc. (PJM).  A number of
transmission owners in the combined region, including NSP-Minnesota and
NSP-Wisconsin, support the “Unified Plan” proposal, which would retain most
aspects of existing Midwest ISO transmission rate design and make certain
transition payments to utilities affected by elimination of the RTORs through
2008.  Other transmission owners,
including American Electric Power Co. and Commonwealth Edison, support the
competing Regional Pricing Plan (RPP) proposal, which would charge a greater
share of transmission costs to utilities that are net importers of
electricity.  The proposed changes would
be effective Dec. 1, 2004.  On Sept. 27,
2004, the FERC also initiated a complaint proceeding under Section 206 of
the Federal Power Act against all transmission owning utilities in the Midwest
ISO and PJM regions, including NSP-Minnesota and NSP-Wisconsin, to establish a
Dec. 1, 2004 refund date for its final decision on long term pricing.  Elimination of the RTOR is expected to reduce
transmission revenues to NSP-Minnesota and NSP-Wisconsin by approximately $3
million per year.  The Unified Plan would
required NSP-Minnesota and NSP-Wisconsin to contribute to transition payments
of


 


1





















 


approximately $750,000 in
2005.  The effect of the RPP proposal is
not fully known at this time.  The FERC
has indicated that it will act on the competing proposals before Dec. 1, 2004.


 


D.  California Refund Proceeding (PSCo) — In October 2003,
the FERC determined that the refund effective date should not be reset to an earlier
date, and gave clarification how refunds should be determined for the
previously set refund period.  Certain
California parties appealed the FERC’s decision not to establish an earlier
refund effective date to United States Court of Appeals for the Ninth
Circuit.  In a related case certain
California parties also appealed the FERC orders dismissing a complaint by the
California Attorney General challenging market-based rates as inconsistent with
the Federal Power Act.  The California
Attorney General also argued that wholesale sellers, including PSCo, were
violating their market-based rate authorizations by not reporting their
market-based sales on an individual transaction basis.  Prior to a clarification of its rules, most
sellers, including PSCo, reported their transactions on an aggregate
basis.  On Sept. 9, 2004, the United
States Court of Appeals for the Ninth Circuit issued an opinion rejecting the
California Attorney General’s general challenge to market-based rates, but
agreed with its challenge regarding the failure to report individual
transactions.  It remanded the case to
the FERC to consider action to take to address these failures and suggested
that refunds would be appropriate.


 


E.  Xcel Energy Inc. Shareholder Derivative
Action — Edith Gottlieb vs. Xcel Energy Inc. et al; Essmacher vs.
Brunetti; McLain vs. Brunetti — On
July 12, 2004, the federal district court issued an order granting the
defendants’ motion to dismiss the federal derivative lawsuit. Plaintiffs in the
federal derivative lawsuit have appealed the federal court’s dismissal.


 


F.  Cornerstone Propane Partners,
L.P., et al., vs. e prime, inc., et al. — In February 2004, defendants, including
e prime, filed motions to dismiss.  In September 2004,
the federal district court denied the motions to dismiss.


 


G.  Fairhaven Power Company vs.
Encana Corporation, et al. — On Sept. 14, 2004, a class action complaint
was filed in the U.S. District Court for the Eastern District of California by
Fairhaven Power Co. and subsequently served on Xcel Energy.  The lawsuit, filed on behalf of a purported
class of natural gas purchasers, alleges that Xcel Energy falsely reported
natural gas trades to market trade publications in an effort to artificially
raise natural gas prices in California and engaged in a conspiracy with other
sellers of natural gas to inflate prices. 
Xcel Energy has not responded to the complaint. The case is in the early
stages, there has been no discovery, and Xcel Energy intends to vigorously
defend against these claims.


 


H.  Company Owned Life Insurance  (PSCo)  — Should the IRS ultimately prevail on this issue, tax and
interest payable through Dec. 31, 2004, would reduce earnings by an estimated
$317 million. In the third quarter of 2004, Xcel Energy received formal notification
that the IRS will seek penalties.  If
penalties (plus associated interest) are also included, the total exposure
through Dec. 31, 2004, increases to approximately $380 million.  At Sept. 30, 2004, Xcel Energy estimates its
annual earnings for 2004 would be reduced by $35 million, after tax, which
represents 8 cents per share, if COLI interest expense deductions were no
longer available. In late July 2004, the FASB discussed potential changes
or clarifications in the criteria for recognition of tax benefits, which may
result in raising the threshold for recognizing uncertain tax benefits.  The FASB has not issued any proposed
guidance, but has indicated that it expects to in the fourth quarter of 2004.  Xcel Energy is unable to determine the impact
or timing of any potential accounting changes required by the FASB, but such
changes could have a material financial impact.


 


2





















 


SCHEDULE 4.6


 


LITIGATION


 


1.                                       See disclosure regarding the Borrower and its
Subsidiaries (i) under the heading “UTILITY REGULATION — Pending Regulatory
Proceedings” in Item 1 of the Borrower’s 2003 Form 10-K, (ii) under the
heading “Legal Proceedings” in Item 3 of the Borrower’s 2003 Form 10-K and
(iii) under the headings “Environmental Contingencies”, “Legal Contingencies”
and “Other Contingencies” in Note 17 to Consolidated Financial Statements of
the Borrower and its subsidiaries in the Borrower’s 2003 Form 10-K.


 


2.                                       See disclosure regarding the Borrower and its
Subsidiaries (i) under the heading “Tax Matters” in Note 4 to Consolidated
Financial Statements of the Borrower and its subsidiaries in the Borrower’s
6/30/2004 Form 10-Q, (ii) under the heading “Rates and Regulation” in Note 5 to
Consolidated Financial Statements of the Borrower and its subsidiaries in the
Borrower’s 6/30/2004 Form 10-Q and (iii) under the heading “Commitments and
Contingent Liabilities” in Note 6 to Consolidated Financial Statements of the
Borrower and its subsidiaries in the Borrower’s 6/30/2004 Form 10-Q.


 


3.                                       The following disclosure contains updated
information with respect certain of the matters discussed in the SEC Reports:


 


A.  Commodity Futures Trading
Commission Investigation — In January 2004, Xcel
Energy and e prime reached a settlement agreement with the CFTC with
respect to allegations that e prime submitted inaccurate information to
industry publications. Without admitting or denying the CFTC’s findings, e
prime agreed to pay $16 million to settle the matter. The CFTC order
resolving the matter recognized Xcel Energy’s cooperation in the CFTCs
investigation. Xcel Energy officials pledged to continue cooperating with the
CFTC. Prior to the CFTC investigation, e prime had 32 employees. As a result of
the investigation and Xcel Energy’s decision to exit the natural gas merchant
business, e prime has severed all but four of its employees.  Xcel Energy cannot predict the outcome of any
investigation the United States Attorney’s Office may conduct with respect to
Xcel Energy, e prime, or former employees of e prime.


 


B.  Ashland Manufactured Gas Plant Site
(NSP-Wisconsin) — On July 2,
2004, the WDNR sent NSP-Wisconsin an invoice for recovery of expenses incurred
at the Ashland site between 1994 and March 2003 in the amount of $1.4
million.  On October 19, 2004, the
WDNR, represented by the Wisconsin Department of Justice, filed a lawsuit in
Wisconsin state court for reimbursement of past costs.  NSP-Wisconsin is reviewing the invoice to
determine whether all costs charged are appropriate.  All appropriate insurance carriers have been
notified of the WDNR’s invoice and will be invited to participate in any future
efforts to address the WDNR’s actions. All costs paid are expected to be
recoverable in rates.  In October 2003,
NSP-Wisconsin initiated discussions with its insurers regarding the
availability of insurance coverage for costs associated with the remediation of
four former MGP sites located in Ashland, Chippewa Falls, Eau Claire, and
LaCrosse, Wis..  In lieu of participating
in discussions, two of NSP-Wisconsin’s insurers, St. Paul Fire & Marine
Insurance Co. and St. Paul Mercury Insurance Co., commenced litigation against
NSP-Wisconsin in Minnesota state district court.  In November 2003, NSP-Wisconsin
commenced suit in Wisconsin state circuit court against St. Paul Fire &
Marine Insurance Co. and its other insurers. 
Subsequently, the Wisconsin court denied the insurers’ motion to stay
the Wisconsin case pending resolution of the Minnesota action.  No trial date has been set in either
proceeding.  The PSCW has established a
deferral process whereby clean-up costs associated with the remediation of
former MGP sites are deferred and, if approved by the PSCW, recovered from
ratepayers.  Carrying charges associated
with these clean-up costs are not subject to the deferral process and are paid
by shareholders.  Any insurance proceeds
received by NSP-Wisconsin will operate as a credit to


 


1





















 


ratepayers, therefore, these
lawsuits should not have an impact on shareholders, and no accruals have been
made.


 


C.  Lamb County Electric Cooperative (SPS) — Lamb County Electric Cooperative, Inc.
(LCEC) appealed the decision to the District Court in Travis County, Texas and
on Aug. 12, 2004, the District Court affirmed the decision of the PUCT.  On Sept. 9, 2004, LCEC appealed the District
Court’s decision to the Court of Appeals for the Third Supreme Judicial
District of the State of Texas, which appeal is currently pending.  On Oct. 18, 1996, LCEC filed a suit for
damages against SPS in the District Court in Lamb County, Texas, based on the
same facts alleged in the petition for a cease and desist order at the
PUCT.  This suit has been dormant since
it was filed, awaiting a final determination at the PUCT of the legality of SPS
providing electric service to the disputed customers.


 


2





















 


SCHEDULE 4.7


 


OWNERSHIP OF PROPERTIES


 


 


Other
than those assets disposed of in the ordinary course of business, Borrower
and/or its Significant Subsidiaries have disposed of the following material
assets since June 30, 2004:


 


1.                                       On October 25, 2004, Xcel Energy
Argentina Inc. (Xcel Argentina), a wholly owned subsidiary of Xcel Energy
International, closed on the sale of capital stock of Electrica del Sur S.A.
and Energia del Sur S.A., which has as its primary asset a gas/oil-fired
generating facility in the Province of Chubut, Argentina to Patagonia Energy
Ltd.


 


1





















 


SCHEDULE 7.2


 


EXISTING LIENS


 


Public Service Company of Colorado (PSCo)


 


1.                                       Liens created under the Indenture, dated as
of December 1, 1939, between PSCo and U.S. Bank Trust National Association
(formerly First Trust of New York, National Association), a national banking
association, as successor trustee, to Morgan Guarantee Trust Company of New
York, as supplemented and amended from time to time, which is a Lien on all
assets of PSCo, whether now owned or hereafter acquired.


 


2.                                       Liens created under the Indenture, dated as
of October 1, 1993, between PSCo and U.S. Bank Trust National Association
(formerly First Trust of New York, National Association), a national banking
association, as successor trustee, to Morgan Guarantee Trust Company of New
York, as supplemented and amended from time to time, which is a Lien on all
assets related to PSCo’s electric utility business, now owned or hereafter
acquired.


 


3.                                       Capital Lease between Young Gas Storage
Company and PSCo dated as of June 1995 for the lease of a gas storage
facility.  The lease will expire in May
2025.


 


4.                                       Capital Lease between WYCO and PSCo dated as
of December 1999 for the lease of a natural gas pipeline.  The lease will expire in November 2029.


 


Cheyenne Light, Fuel and Power Company (CLF&P)


 


1.             Liens created under the Indenture,
dated as of March 1, 1948, between CLF&P and Wells Fargo Bank West,
N.A., formerly Norwest Bank Colorado, as trustee, as supplemented and amended
from time to time, which is a Lien on all assets of CLF&P, whether now
owned or hereafter acquired.


 


Northern States Power (NSP-MN)


 


1.                                       Liens created under the Indenture, dated as
of February 1, 1937, between NSP-MN and BNY Midwest Trust Company, as
successor trustee to Harris Trust and Savings Bank, as supplemented and amended
from time to time, which is a Lien on all property, real, personal and mixed
now owned or hereafter acquired or to be acquired.


 


2.                                       Liens created under the Supplemental and
Restated Trust Indenture dated May 1, 1988 between NSP-MN and BNY Midwest Trust
Company, as successor trustee to Harris Trust and Savings Bank, as supplemented
and amended from time to time, which is a Lien on all assets property, real,
personal and mixed now owned or hereafter acquired or to be acquired.


 


Northern States Power (NSP-WI)


 


1.                                       Liens created under the Supplemental and
Restated Trust Indenture, dated as of March 1, 1991, between NSP-WI and
U.S. Bank National Association, as successor trustee, as supplemented and
amended from time to time, which is a Lien on all property, real, personal and
mixed now owned or hereafter acquired or to be acquired.


 


1





















 


EXHIBIT A


 


FORM OF

CLOSING CERTIFICATE


 


Pursuant to Section 5.1(g)
of the Credit Agreement, dated as of November 4, 2004 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”;
terms defined therein being used herein as therein defined), among Xcel Energy
Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
administrative agent (in such capacity, the “Administrative Agent”), the
undersigned [INSERT TITLE OF OFFICER] of the Borrower hereby certifies as
follows:


 


1.          The representations and warranties of the Borrower set forth in each of
the Loan Documents to which it is a party or which are contained in any
certificate furnished by or on behalf of the Borrower pursuant to any of the
Loan Documents to which it is a party are true and correct in all material
respects on and as of the date hereof with the same effect as if made on the
date hereof, except for representations and warranties expressly stated to
relate to a specific earlier date, in which case such representations and
warranties were true and correct in all material respects as of such earlier
date.


 


2.          _________________________ is the duly elected and qualified [Corporate
Secretary] of the Borrower and the signature set forth for such officer below
is such officer’s true and genuine signature.


 


3.          No Default or Event of Default has occurred and is continuing as of the
date hereof or after giving effect to the Revolving Loans to be made on the
date hereof and the use of proceeds thereof.


 


4.          The conditions precedent set forth in Section 5.1 of the Credit
Agreement were satisfied as of the Closing Date.


 


5.          There are no liquidation or dissolution proceedings pending or to my
knowledge threatened against the Borrower, nor has any other event occurred
adversely affecting or threatening the continued corporate existence of the
Borrower.


 


The undersigned [Corporate
Secretary] of the Borrower certifies as follows:


 


6.          The Borrower is a corporation duly incorporated, validly existing and
in good standing under the laws of the jurisdiction of its organization.


 


7.          Attached hereto as Annex 1 is a true and complete copy of
resolutions duly adopted by the Board of Directors of the Borrower on ___________________,
2004; such resolutions have not in any way been amended, modified, revoked or
rescinded, have been in full force and effect since their adoption to and including
the date hereof and are now in full force and effect and are the only corporate
proceedings of the Borrower now in force relating to or affecting the matters
referred to therein.


 


8.          Attached hereto as Annex 2 is a true and complete copy of the
By-Laws of the Borrower as in effect on the date hereof.


 


9.          Attached hereto as Annex 3 is a true and complete copy of the
Articles of Incorporation of the Borrower as in effect on the date hereof.


 





















 


10.                                 The following persons are now duly elected
and qualified officers of the Borrower holding the offices indicated next to
their respective names below, and the signatures appearing opposite their
respective names below are the true and genuine signatures of such officers,
and each of such officers is duly authorized to execute and deliver on behalf
of the Borrower each of the Loan Documents to which it is a party and any
certificate or other document to be delivered by the Borrower pursuant to the
Loan Documents to which it is a party:


 


	
  Name

  	
   

  	
  Office

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


IN
WITNESS WHEREOF, the undersigned have hereunto set our names as of the date set
forth below.


 


	
   

  	
   

  	
   

  
	
  Name:

  	
  Name:

  
	
  Title:

  	
  Title: [Corporate
  Secretary]

  
	
   

  	
   

  
	
  Date:
  November      , 2004

  	
   

  



 





















 


EXHIBIT
B


 


FORM OF

ASSIGNMENT AND ASSUMPTION


 


Reference is made to the
Credit Agreement, dated as of November 4, 2004 (as amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among
Xcel Energy Inc. (the “Borrower”), the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein and JPMorgan Chase Bank, as
administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).  Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.


 


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


 


1.                                       The Assignor hereby irrevocably sells and
assigns to the Assignee without recourse to the Assignor, and the Assignee
hereby irrevocably purchases and assumes from the Assignor without recourse to
the Assignor, as of the Effective Date (as defined below), the interest
described in Schedule 1 hereto (the “Assigned Interest”) in and to
the Assignor’s rights and obligations under the Credit Agreement with respect
to the credit facility contained in the Credit Agreement in a principal amount
as set forth on Schedule 1 hereto.


 


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


 


3.                                       The Assignee (a) represents and warrants that
it is legally authorized to enter into this Assignment and Assumption; (b)
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements delivered pursuant to Section 4.1
thereof and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and
Assumption; (c) agrees that it will, independently and without reliance upon
the Assignor, any Agent or any Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement, the
other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to Section 2.13(d)
of the Credit Agreement.


 





















 


4.                                       Subject to obtaining all necessary consents
on or prior to such date, the effective date of this Assignment and Assumption
shall be the Effective Date of Assignment described in Schedule 1 hereto
(the “Effective Date”).  Following
the execution of this Assignment and Assumption and receipt of all necessary
consents, it will be delivered to the Administrative Agent for acceptance by it
and recording by the Administrative Agent pursuant to the Credit Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed to
by the Administrative Agent, be earlier than five Business Days after the date
of such acceptance and recording by the Administrative Agent).


 


5.                                       Upon such acceptance and recording, 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 that have accrued to the
Effective Date and to the Assignee for amounts, which have accrued subsequent
to the Effective Date.


 


6.                                       From and after the Effective Date, (a) the
Assignee shall be a party to the Credit Agreement and, to the extent provided
in this Assignment and Assumption, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this
Assignment and Assumption, relinquish its rights and be released from its
obligations under the Credit Agreement.


 


7.                                       This Assignment and Assumption shall be
governed by and construed in accordance with the laws of the State of New York.


 


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


 


2





















 


Schedule 1 to
Assignment and Assumption

with respect to the Credit Agreement, dated as of November 4, 2004,

among Xcel Energy Inc. (the “Borrower”), the Lenders party thereto

the Documentation Agent and Syndication Agent named therein

and JPMorgan Chase Bank, as Administrative Agent


 


	
  Name of Assignor:                                                         

  
	
   

  
	
  Name of Assignee:                                                         

  
	
   

  
	
  Effective Date of
  Assignment:                                       

  
	
   

  
	
  Principal Amount Assigned:
  $                                        

  



 


 


	
  [Name of Assignee]

  	
  [Name of Assignor]

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  JPMorgan Chase Bank, as
  Administrative Agent(1)

  	
  Xcel Energy Inc.(2)

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Title:

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
                                 , as an Issuing Lender(3)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  
								



 










(1)  Consent of Administrative Agent required for
each assignment.


 


(2)  Consent of
Borrower required for each assignment unless (x) assignment is to a Lender or
Eligible Assignee or (y) an Event of Default has occurred and is continuing.


 


(3)  Consent of each Issuing Lender required for
each assignment.


 





















 


EXHIBIT C


 


FORM OF EXEMPTION
CERTIFICATE


 


Reference is made to the
Credit Agreement, dated as of November 4, 2004 (as amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among Xcel
Energy Inc. (the “Borrower”), the Lenders party thereto, the
Documentation Agent and Syndication Agent named therein and JPMorgan Chase
Bank, as administrative agent (in such capacity, the “Administrative Agent”).  Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.


 


                                          (the “Non-U.S. Lender”) is providing this
certificate pursuant to Section 2.13(d) of the Credit Agreement.  The Non-U.S. Lender hereby represents and
warrants that:


 


1.  The Non-U.S. Lender is the sole record and
beneficial owner of the Revolving Loans in respect of which it is providing
this certificate.


 


2.  The Non-U.S. Lender is not a “bank” for
purposes of Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended (the “Code”).  In this
regard, the Non-U.S. Lender further represents and warrants that:


 


(a) the Non-U.S. Lender is
not subject to regulatory or other legal requirements as a bank in any
jurisdiction; and


 


(b) the Non-U.S. Lender has
not been treated as a bank for purposes of any tax, securities law or other
filing or submission made to any Governmental Authority, any application made
to a rating agency or qualification for any exemption from tax, securities law
or other legal requirements.


 


3.  The Non-U.S. Lender is not a 10-percent
shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of
the Code.


 


4.  The Non-U.S. Lender is not a controlled
foreign corporation receiving interest from a related person within the meaning
of Section 881(c)(3)(C) of the Code.


 


IN WITNESS WHEREOF, the
undersigned has duly executed this certificate.


 


	
   

  	
  [NAME OF NON-U.S. LENDER]

  
	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Date:
  

  	
   

  	
   

  
							



 





















 


EXHIBIT D


 


FORM OF ADDENDUM


 


The undersigned Lender (i)
agrees to all of the provisions of the Credit Agreement, dated as of November 4,
2004 (the “Credit Agreement”), among Xcel Energy Inc. (the “Borrower”),
the Lenders party thereto, the Documentation Agent and Syndication Agent named
therein and JPMorgan Chase Bank, as Administrative Agent, and (ii) becomes a
party thereto, as a Lender, with obligations applicable to such Lender
thereunder, including, without limitation, the obligation to make extensions of
credit to the Borrower in an aggregate principal amount not to exceed the
amount of its Revolving Commitment as set forth opposite the undersigned Lender’s
name in Schedule 1.1A to the Credit Agreement, as such amount may be
changed from time to time as provided in the Credit Agreement.    Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Name of Lender)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated as of November       ,
  2004

  	
   

  	
   

  
						



 





















 


EXHIBIT E-1


 


FORM OF NEW LENDER SUPPLEMENT


 


NEW LENDER SUPPLEMENT, dated                          ,
to the Credit Agreement, dated as of November 4, 2004 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
among Xcel Energy Inc. (the “Borrower”), the Lenders party thereto, the
Documentation Agent and Syndication Agent named therein and JPMorgan Chase
Bank, as administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).  Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.


 


W I T N E S S E T H :


 


 WHEREAS, the
Credit Agreement provides in Section 2.1(c) thereof that any bank,
financial institution or other entity may become a party to the Credit
Agreement with the consent of the Borrower and the Administrative Agent (which
consent shall not be unreasonably withheld) by executing and delivering to the
Borrower and the Administrative Agent a supplement to the Credit Agreement in
substantially the form of this New Lender Supplement; and


 


WHEREAS, the undersigned now desires to become a
party to the Credit Agreement;


 


NOW, THEREFORE, the undersigned hereby agrees as
follows:


 


1.  The undersigned agrees to be bound by the
provisions of the Credit Agreement, and agrees that it shall, on the date this
New Lender Supplement is accepted by the Borrower and the Administrative Agent,
become a Lender for all purposes of the Credit Agreement to the same extent as
if originally a party thereto, with a Revolving Commitment of $                             .


 


2.  The undersigned (a) represents and warrants
that it is legally authorized to enter into this New Lender Supplement; (b)
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements referred to in Section 4.1 thereof and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this New Lender Supplement; (c)
agrees that it has made and will, independently and without reliance upon any
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement or any instrument or
document furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement or any instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, without limitation, if it is organized
under the laws of a jurisdiction outside the United States, its obligation
pursuant to Section 2.13(d) of the Credit Agreement.


 


3.  The undersigned’s address for notices for the
purposes of the Credit Agreement is as follows:


 


[insert notice address]


 





















 


IN WITNESS WHEREOF, the undersigned has caused this
New Lender Supplement to be executed and delivered by a duly authorized officer
on the date first above written.


 


 


	
   

  	
  [INSERT NAME OF LENDER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Accepted
this             
day of


                         ,          .


 


 


	
  XCEL ENERGY INC.

  
	
   

  
	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


 


Accepted
this          day of


                       ,         .


 


 


	
  JPMORGAN CHASE BANK, as Administrative Agent

  
	
   

  
	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 





















 


Exhibit E-2


 


FORM OF INCREASED REVOLVING
COMMITMENT ACTIVATION NOTICE


 


To:                              JPMORGAN CHASE BANK, as Administrative Agent


 


Reference is hereby made to
the Credit Agreement, dated as of November 4, 2004 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
among Xcel Energy Inc. (the “Borrower”), the Lenders party thereto, the
Documentation Agent and Syndication Agent named therein and JPMorgan Chase
Bank, as administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).  Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.


 


This notice is the Increased
Revolving Commitment Activation Notice referred to in the Credit Agreement, and
the Borrower and each of the Lenders party hereto hereby notify you that:


 


1.                                       Each Lender party hereto agrees to make
or increase the amount of its Revolving Commitment to the amount set forth
opposite such Lender’s name below under the caption “Increased Revolving
Commitment Amount”.


 


2.                                       The Increased Revolving Commitment
Closing Date is
            .(1)


 


3.                                       The Borrower hereby represents and
warrants that no Default or Event of Default has occurred and is continuing as
of the date hereof and no Default or Event of Default will exist after giving
effect to the increase specified herein.


 


 


	
   

  	
  XCEL ENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


	
  Increased Revolving
  Commitment Amount

  	
  [NAME OF LENDER]

  
	
   

  	
   

  
	
  $

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  











(1)  No later than the fourth anniversary of the
Closing Date.


 





















 


EXHIBIT F-1


 


FORM OF EXTENSION REQUEST(1)


 


                     ,
200    


 


JPMorgan Chase Bank, as Administrative Agent


 


Reference is made to the
Credit Agreement, dated as of November 4, 2004 (as amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among
Xcel Energy Inc. (the “Borrower”), the Lenders party thereto, the
Documentation Agent and Syndication Agent named therein and JPMorgan Chase
Bank, as administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).  Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.


 


Pursuant to Section 2.17(a)
of the Credit Agreement, the Borrower hereby requests that the Lenders extend
the Revolving Termination Date now in effect by a period of one year, to November 4,
2010.


 


 




	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  XCEL ENERGY INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
    Name:

  
	
   

  	
    Title:

  






 










(1)  Extension
Request may be given no earlier than the first anniversary of the Closing Date
and no later than 45 days prior to the Revolving Termination Date then in
effect.  


 





















 


EXHIBIT F-2


 


FORM OF CONTINUATION
NOTICE(1)


 


                  ,
200   


 


JPMorgan Chase Bank, as Administrative Agent


 


Reference is made to the
Credit Agreement, dated as of November 4, 2004 (as amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among
Xcel Energy Inc. (the “Borrower”), the Lenders party thereto, the
Documentation Agent and Syndication Agent named therein and JPMorgan Chase
Bank, as administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).  Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.


 


The undersigned Lender is
delivering this Continuation Notice in response to the Extension Request dated                      ,
200  .  Pursuant to Section 2.17(a)
of the Credit Agreement, the undersigned Lender hereby consents, in its sole
discretion, to the extension of the Revolving Termination Date to November 4,
2010, as requested by the Borrower in the Extension Request.


 




	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [NAME OF LENDER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
    Name:

  
	
   

  	
    Title:

  






 










(1)  Continuation
Notice must be received by the Administrative Agent no later than 20 days prior
to the then applicable Revolving Termination Date.  Any Lender that fails to submit a
Continuation Notice by such date shall be deemed not to have consented to the
requested extension and shall constitute a Non-Extending Lender.