exv10w1






Exhibit 10.1




Published Deal CUSIP Number: 72018PAA1




CREDIT AGREEMENT




Dated as of January 25, 2011



among



PIEDMONT NATURAL GAS COMPANY, INC.

as the Borrower,



BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,



BRANCH BANKING AND TRUST COMPANY

and

U.S. BANK NATIONAL ASSOCIATION,

as Co-Syndication Agents



and



The Other Lenders Party Hereto



MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and

BB&T CAPITAL MARKETS

as

Joint Lead Arrangers and Joint Book Managers









 









 








TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	20	 
	1.03 Accounting Terms
	 	 	21	 
	1.04 Rounding
	 	 	21	 
	1.05 Times of Day
	 	 	21	 
	1.06 Letter of Credit Amounts
	 	 	21	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	22	 
	 
	 	 	 	 
	2.01 Revolving Loans
	 	 	22	 
	2.02 Borrowings, Conversions and Continuations of Revolving Loans
	 	 	22	 
	2.03 Letters of Credit
	 	 	24	 
	2.04 Swing Line Loans
	 	 	32	 
	2.05 Prepayments
	 	 	35	 
	2.06 Termination or Reduction of Commitments
	 	 	36	 
	2.07 Repayment of Loans
	 	 	37	 
	2.08 Interest
	 	 	37	 
	2.09 Fees
	 	 	38	 
	2.10 Computation of Interest and Fees
	 	 	38	 
	2.11 Evidence of Debt
	 	 	38	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	39	 
	2.13 Sharing of Payments by Lenders
	 	 	41	 
	2.14 Extension of Maturity Date
	 	 	42	 
	2.15 Increase in Commitments
	 	 	43	 
	2.16 Cash Collateral
	 	 	44	 
	2.17 Defaulting Lenders
	 	 	45	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	47	 
	 
	 	 	 	 
	3.01 Taxes
	 	 	47	 
	3.02 Illegality
	 	 	49	 
	3.03 Inability to Determine Rates
	 	 	50	 
	3.04 Increased Costs
	 	 	50	 
	3.05 Compensation for Losses
	 	 	52	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	52	 
	3.07 Survival
	 	 	53	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	53	 
	 
	 	 	 	 
	4.01 Conditions of Initial Credit Extension
	 	 	53	 
	4.02 Conditions to all Credit Extensions
	 	 	55	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	56	 
	 
	 	 	 	 
	5.01 Existence, Qualification and Power
	 	 	56	 
	5.02 Authorization; No Contravention
	 	 	56	 






i









 






	 	 	 	 	 
	Section	 	Page	 
	5.03 Governmental Authorization; Other Consents
	 	 	56	 
	5.04 Binding Effect
	 	 	56	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	56	 
	5.06 Litigation
	 	 	57	 
	5.07 No Default
	 	 	57	 
	5.08 Ownership of Property; Liens
	 	 	57	 
	5.09 Environmental Compliance
	 	 	57	 
	5.10 Insurance
	 	 	57	 
	5.11 Taxes
	 	 	58	 
	5.12 ERISA Compliance
	 	 	58	 
	5.13 Subsidiaries; Equity Interests
	 	 	58	 
	5.14 Margin Regulations; Investment Company Act
	 	 	59	 
	5.15 Disclosure
	 	 	59	 
	5.16 Compliance with Laws
	 	 	59	 
	5.17 Taxpayer Identification Number
	 	 	59	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	60	 
	 
	 	 	 	 
	6.01 Financial Statements
	 	 	60	 
	6.02 Certificates; Other Information
	 	 	61	 
	6.03 Notices
	 	 	62	 
	6.04 Payment of Obligations
	 	 	63	 
	6.05 Preservation of Existence, Etc
	 	 	63	 
	6.06 Maintenance of Properties
	 	 	63	 
	6.07 Maintenance of Insurance
	 	 	64	 
	6.08 Compliance with Laws
	 	 	64	 
	6.09 Books and Records
	 	 	64	 
	6.10 Inspection Rights
	 	 	64	 
	6.11 Use of Proceeds
	 	 	64	 
	6.12 Guarantors
	 	 	65	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	65	 
	 
	 	 	 	 
	7.01 Liens
	 	 	65	 
	7.02 Fundamental Changes
	 	 	67	 
	7.03 Change in Nature of Business
	 	 	67	 
	7.04 Transactions with Affiliates
	 	 	67	 
	7.05 Burdensome Agreements
	 	 	67	 
	7.06 Ratio of Consolidated Funded Indebtedness to Total Capitalization
	 	 	68	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	68	 
	 
	 	 	 	 
	8.01 Events of Default
	 	 	68	 
	8.02 Remedies Upon Event of Default
	 	 	70	 
	8.03 Application of Funds
	 	 	71	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	72	 
	 
	 	 	 	 
	9.01 Appointment and Authority
	 	 	72	 
	9.02 Rights as a Lender
	 	 	72	 






ii









 






	 	 	 	 	 
	Section	 	Page	 
	9.03 Exculpatory Provisions
	 	 	72	 
	9.04 Reliance by Administrative Agent
	 	 	73	 
	9.05 Delegation of Duties
	 	 	73	 
	9.06 Resignation of Administrative Agent
	 	 	74	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	75	 
	9.08 No Other Duties, Etc
	 	 	75	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	75	 
	9.10 Guaranty Matters
	 	 	76	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	76	 
	 
	 	 	 	 
	10.01 Amendments, Etc
	 	 	76	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	77	 
	10.03 No Waiver; Cumulative Remedies
	 	 	79	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	79	 
	10.05 Payments Set Aside
	 	 	81	 
	10.06 Successors and Assigns
	 	 	82	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	86	 
	10.08 Right of Setoff
	 	 	88	 
	10.09 Interest Rate Limitation
	 	 	88	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	88	 
	10.11 Survival of Representations and Warranties
	 	 	89	 
	10.12 Severability
	 	 	89	 
	10.13 Replacement of Lenders
	 	 	89	 
	10.14 Governing Law; Jurisdiction; Etc
	 	 	90	 
	10.15 Waiver of Jury Trial
	 	 	91	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	91	 
	10.17 USA PATRIOT Act Notice
	 	 	92	 
	 
	 	 	 	 
	SIGNATURES
	 	 	S-1	 











iii









 








	 	 	 
	SCHEDULES
	2.01

	 	Commitments and Applicable Percentages
	4.01

	 	Existing Credit Facilities
	5.13

	 	Subsidiaries; Other Equity Investments
	7.01

	 	Existing Liens
	10.02

	 	Administrative Agent’s Office; Certain Addresses for Notices






	 	 	 

	EXHIBITS
	 

	 	Form of
	 
	A

	 	Revolving Loan Notice
	B

	 	Swing Line Loan Notice
	C

	 	Note
	D

	 	Compliance Certificate
	E

	 	Assignment and Assumption
	F

	 	Guaranty
	G

	 	Opinion






iv









 





CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of January 25, 2011, among
PIEDMONT NATURAL GAS COMPANY, INC., a North Carolina corporation (the “Borrower”), each
lender from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.



     The Borrower has requested that the Lenders provide a revolving credit facility, and the
Lenders are willing to do so on the terms and conditions set forth herein.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify to the Borrower and the Lenders.



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



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



     “Aggregate Commitments” means the Commitments of all the Lenders, which, as of the
Closing Date, are $650,000,000.



     “Agreement” means this Credit Agreement.



     “Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time, subject to adjustment as provided in Section 2.17. If the
commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate
Commitments have expired, then the Applicable Percentage of each Lender shall be determined based
on the Applicable Percentage of such Lender most recently in effect, giving effect to any
subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite



1









 







the
name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which
such Lender becomes a party hereto, as applicable.



     “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Debt Rating as set forth below:



Applicable Rate




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable Rate for
	 	 	 	 	 	 	Eurodollar Rate Loans,
	 	 	Debt Ratings	 	Applicable Rate for	 	LIBOR Floating Rate
	Pricing Level	 	S&P/Moody’s	 	Commitment Fee	 	Loans and Letters of Credit
	1
	 	≥ AA-/Aa3
	 	0.10%
	 	0.65%
	2
	 	A+/A1
	 	0.125%
	 	0.75%
	3
	 	A/A2
	 	0.15%
	 	0.90%
	4
	 	A-/A3
	 	0.20%
	 	1.25%
	5
	 	≤ BBB+/Baa1
	 	0.25%
	 	1.50%







     “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 non-credit-enhanced, senior unsecured long-term debt; provided that (a)
if the respective Debt Ratings issued by the foregoing rating agencies differ by one level,
then the Pricing Level for the higher of such Debt Ratings shall apply (with the Debt Rating
for Pricing Level 1 being the highest and the Debt Rating for Pricing Level 5 being the
lowest); (b) if there is a split in Debt Ratings of more than one level, then the Pricing
Level that is one level lower than the Pricing Level of the higher Debt Rating shall apply;
(c) if the Borrower has only one Debt Rating, the Pricing Level of such Debt Rating shall
apply; and (d) if the Borrower does not have any Debt Rating, Pricing Level 5 shall apply.


Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the
certificate delivered pursuant to Section 4.01(a)(vii). Thereafter, each change in the
Applicable Rate resulting from a publicly announced change in the Debt Rating shall be effective
during the period commencing on the date of the public announcement thereof and ending on the date
immediately preceding the effective date of the next such change.




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



     “Arrangers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated (successor by
merger to Banc of America Securities LLC), and BB&T Capital Markets, each in its capacity as a
joint lead arranger and joint book manager.



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



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit E or any other form approved by the Administrative Agent.



2









 





     “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation of any Person, the capitalized amount of the remaining lease payments under the relevant
lease that would appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP if such lease were accounted for as a capital lease.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended October 31, 2010, and the related
consolidated statements of income from operations, shareholders’ equity and cash flows of the
Borrower and its Subsidiaries for such fiscal year, including the notes thereto.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.02.



     “Bank of America” means Bank of America, N.A. and its successors.



     “Bank of America Fee Letter” means the letter agreement, dated November 17, 2010,
among the Borrower, Bank of America and Merrill Lynch, Pierce, Fenner & Smith Incorporated
(successor by merger to Banc of America Securities LLC).



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate” and (c) the LIBOR Daily Floating
Rate plus 1.00%. The “prime rate” is a rate set by Bank of America based upon various factors
including Bank of America’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such rate announced by Bank of America shall take effect
at the opening of business on the day specified in the public announcement of such change.



     “Base Rate Loan” means a Revolving Loan that bears interest based on the Base Rate.



     “BBA LIBOR” means the British Bankers Association LIBOR Rate.



     “BB&T Fee Letter” means the letter agreement, dated November 17, 2010, among the
Borrower, Branch Banking and Trust Company and BB&T Capital Markets.



     “Borrower” has the meaning specified in the introductory paragraph hereto.




     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means a Revolving Borrowing or a Swing Line Borrowing, as the context may
require.



3









 





     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.



     “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the Administrative Agent, L/C Issuer or Swing Line Lender (as applicable)
and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or
obligations of Lenders to fund participations in respect of either thereof (as the context may
require), cash or deposit account balances or, if the L/C Issuer or Swing Line Lender benefitting
from such collateral shall agree in its sole discretion, other credit support, in each case
pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and
(b) the L/C Issuer or the Swing Line Lender (as applicable). “Cash Collateral” shall have a meaning
correlative to the foregoing and shall include the proceeds of such cash collateral and other
credit support.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means an event or series of events by which:




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire whether such right is exercisable immediately or only after
the passage of time (such right, an “option right”)), directly or indirectly, of 35%
or more of the equity securities of the Borrower entitled to vote for members of the board
of directors or equivalent governing body of the Borrower on a fully-diluted basis (and
taking into account all such securities that such person or group has the right to acquire
pursuant to any option right); or




     (b) during any period of 24 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Borrower cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a majority of that



4









 







board or equivalent governing body (excluding, in the case of both clause (ii) and clause
(iii), any individual whose initial nomination for, or assumption of office as, a member of
that board or equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more directors by
any person or group other than a solicitation for the election of one or more directors by
or on behalf of the board of directors).



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.



     “Code” means the Internal Revenue Code of 1986.



     “Commitment” means, as to each Lender, its obligation to (a) make Revolving Loans to
the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and
(c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Agreement.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
D.



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under
standby letters of credit, bankers’ acceptances, bank guaranties, surety bonds and similar
instruments, (d) all obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business), (e) Attributable
Indebtedness in respect of capital leases and Synthetic Lease Obligations, (f) without duplication,
all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a)
through (e) above of Persons other than the Borrower or any Subsidiary, and (g) all Indebtedness of
the types referred to in clauses (a) through (f) above of any partnership or joint venture (other
than a joint venture that is itself a corporation or limited liability company) in which the
Borrower or a Subsidiary is a general partner or joint venturer, except to the extent such
Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary.



     “Consolidated Total Assets” means, as of any date of determination, for the Borrower
and its Subsidiaries on a consolidated basis, the total assets of the Borrower and its Subsidiaries
as set forth or reflected on the most recent consolidated balance sheet of the Borrower and
its Subsidiaries, prepared in accordance with GAAP.





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



5









 






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



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



     “Debt Rating” has the meaning specified in the definition of “Applicable Rate.”



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



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means (a) when used with respect to Obligations other than Eurodollar
Rate Loans and Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii)
2% per annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of
Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.



     “Defaulting Lender” means, subject to Section 2.17(b), any Lender that, as
determined by the Administrative Agent, (a) has failed to perform any of its funding obligations
hereunder, including in respect of its Loans or participations in respect of Letters of Credit or
Swing Line Loans within one Business Day of the date required to be funded by it hereunder, (b) has
notified the Borrower or the Administrative Agent that it does not intend to comply with its
funding obligations or has made a public statement to that effect with respect to its funding
obligations hereunder or under other agreements in which it commits to extend credit, (c) has
failed, within one Business Day after request by the Administrative Agent, to confirm in a manner
satisfactory to the Administrative Agent that it will comply with its funding obligations, or (d)
has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding
under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for
the benefit of creditors or similar Person charged with reorganization or liquidation of its
business or custodian appointed for it, or (iii) taken any action in furtherance of, or indicated
its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a
Lender shall
not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity
interest in that Lender or any direct or indirect parent company thereof by a Governmental
Authority.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.



6









 





     “Dollar” and “$” mean lawful money of the United States.



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Sections 10.06(b)(iii) and (v) (subject to such consents, if any, as may be
required under Section 10.06(b)(iii)).



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



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



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in



7









 







reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.



     “Eurodollar Base Rate” has the meaning specified in the definition of Eurodollar Rate.



     “Eurodollar Rate” means for any Interest Period with respect to a Eurodollar Rate
Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:



	 	 	 	 	 	 	 	 	 

	 	 
	 

	 	Eurodollar Rate
	 	=
	 	Eurodollar Base Rate 	 	 
	 	 	 	 	1.00 — Eurodollar Reserve Percentage	 	 







     Where,




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



     “Eurodollar Rate Loan” means a Revolving Loan that bears interest at a rate based on
the Eurodollar Rate.



     “Eurodollar Reserve Percentage” means, for any day, the reserve percentage (expressed
as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable
to any Lender, under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency
liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted
automatically as of the effective date of any change in the Eurodollar Reserve Percentage. The
LIBOR Daily Floating Rate for each outstanding LIBOR Floating Rate Loan shall be adjusted
automatically as of the effective date of any change in the Eurodollar Reserve Percentage.



8









 





     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Borrower is located (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under Section 10.13),
any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to
such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply
with Section 3.01(e), except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax pursuant to Section
3.01(a), and (d) any backup withholding tax that is required by the Code to be withheld from
amounts payable to a Lender that has failed to comply with the provisions of the first paragraph of
Section 3.01(e).



     “Existing Letters of Credit” means collectively, (a) letter of credit # 3097805 issued
to Liberty Mutual, as the holder, by the L/C Issuer and (b) letter of credit # 3084623 issued to
National Union (Chartis), as the holder, by the L/C Issuer.



     “Existing Maturity Date” shall have the meaning ascribed thereto in Section
2.14(a).



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




     “Fee Letters” means, collectively, the BB&T Fee Letter and the Bank of America Fee
Letter.



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



9









 





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



     “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C
Obligations other than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the
terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable
Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof.



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



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or
cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness
or other obligation, or (iv) entered into for the purpose of assuring in any other manner the
obligee in respect of such Indebtedness or other obligation of the payment or performance thereof
or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien
on any assets of such Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person (or any right,
contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien);
provided that, the term “Guarantee” shall not include endorsements for collection or
deposit in the ordinary course



10









 







of business. The amount of any Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in
good faith. The term “Guarantee” as a verb has a corresponding meaning.



     “Guarantors” means, collectively, each Subsidiary of the Borrower that is a Regulated
Entity.



     “Guaranty” means that certain Guaranty Agreement executed by a Guarantor in favor of
the Administrative Agent and the Lenders, substantially in the form of Exhibit F, as
supplemented from time to time by execution and delivery of Guaranty Joinder Agreements pursuant to
Section 6.12 or otherwise.



     “Guaranty Joinder Agreement” means each Guaranty Joinder Agreement, substantially in
the form thereof attached to the Guaranty, executed and delivered by a Regulated Entity to the
Administrative Agent pursuant to Section 6.12.



     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



     “Increase Effective Date” has the meaning ascribed thereto in Section 2.15(d).



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;




     (c) net obligations of such Person under any Swap Contract;





     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;



11









 






     (f) capital leases and Synthetic Lease Obligations;




     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other Person,
valued, in the case of a redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; and




     (h) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, except to the
extent such Indebtedness is expressly made non-recourse to such Person. The amount of any net
obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any
date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such
date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



     “Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Eurodollar Rate Loan and the Maturity Date;
provided, however, that if any Interest Period for a Eurodollar Rate Loan exceeds
three months, the respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Revolving Loan that bears
interest at the Base Rate or the LIBOR Daily Floating Rate and as to any Swing Line Loan, the first
Business Day following the end of each month and the Maturity Date.



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




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




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




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



12









 





     “IRS” means the United States Internal Revenue Service.



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



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Borrower (or any Subsidiary) or in favor the L/C Issuer and relating to such Letter of Credit.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case having the force of law.



     “L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable Percentage.



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



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



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



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.



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



13









 





     “Letter of Credit” means any letter of credit issued hereunder and shall include the
Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby
letter of credit.



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



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



     “Letter of Credit Fee” has the meaning specified in Section 2.03(h).



     “Letter of Credit Sublimit” means an amount equal to $10,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.



     “LIBOR Daily Floating Rate” means a rate per annum determined by the Administrative
Agent pursuant to the following formula:



	 	 	 	 	 	 	 	 	 

	 

	 	     LIBOR Daily Floating Rate
	 	=
	 	LIBOR Daily Floating Base Rate
	 	 
	 

	 	 	 	1.00 — Eurodollar Reserve Percentage	 	 






     Where,




     “LIBOR Daily Floating Base Rate” means, for all LIBOR Floating Rate Loans, on
each day any such Loan is outstanding, the fluctuating rate of interest (rounded upwards, as
necessary, to the nearest 1/100 of 1%) equal to the BBA LIBOR, as published by Reuters (or
other commercially available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London time, on each
day any such Loan is outstanding, for Dollar deposits with a term equivalent to a one month
Interest Period. If such rate is not available at such time for any reason, then the “LIBOR
Daily Floating Base Rate” shall be the rate per annum determined by the Administrative Agent
to be the rate at which deposits in Dollars for delivery in same day funds in the
approximate amount of the LIBOR Floating Rate Loan being made, continued or converted and
with a term equivalent to a one-month Interest Period would be offered by Bank of America’s
London Branch to major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time), on each day any such Loan is outstanding.




     “LIBOR Floating Rate Loan” means a Loan that bears interest at a rate based on the
LIBOR Daily Floating Rate.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



14









 





     “Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Revolving Loan or a Swing Line Loan.



     “Loan Documents” means this Agreement, each Note, each Issuer Document, the Fee
Letters, and the Guaranty.



     “Loan Parties” means, collectively, the Borrower and each Guarantor.



     “Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X of
the FRB.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, condition (financial or otherwise) of
the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any
Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or enforceability against any
Loan Party of any Loan Document to which it is a party.



     “Maturity Date” means the later of (a) January 25, 2014 and (b) with respect to each
Lender, if the maturity date with respect to such Lender is extended pursuant to Section
2.14, such extended maturity date as determined pursuant to such Section; provided,
however, that, in each case, if such date is not a Business Day, the Maturity Date shall be
the next preceding Business Day.



     “Medium Term Note Indebtedness” means all indebtedness outstanding under the Medium
Term Notes Indenture.



     “Medium Term Notes Indenture” means that certain Indenture dated as of April 1, 1993
between the Borrower and Citibank, N.A., as Trustee and each supplemental indenture issued in
connection therewith.



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



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.




     “Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit C.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any
Loan, Letter of Credit or Related Credit Arrangement, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter
arising and including interest and fees that accrue after the commencement by or against any Loan
Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming



15









 







such Person as
the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



     “Other Taxes” means 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
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.



     “Outstanding Amount” means (i) with respect to Revolving Loans and Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings
and prepayments or repayments of Revolving Loans and Swing Line Loans, as the case may be,
occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of
such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.



     “Participant” has the meaning specified in Section 10.06(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “PCAOB” means the Public Company Accounting Oversight Board.



     “Pension Act” means the Pension Protection Act of 2006.



     “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension Plans and set forth
in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412
of
the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter,
Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



16









 





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



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Platform” has the meaning specified in Section 6.02.



     “Register” has the meaning specified in Section 10.06(c).



     “Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Borrower as prescribed in the Securities Laws.



     “Regulated Entity” means any direct or indirect, wholly-owned Subsidiary of the
Borrower that is regulated by any state public utility commission.



     “Related Credit Arrangements” means, collectively, Related Swap Contracts and Related
Treasury Management Arrangements.



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



     “Related Swap Contract” means a Swap Contract which is entered into or maintained by
any Loan Party with a Lender or an Affiliate of a Lender.



     “Related Treasury Management Arrangement” means an arrangement for the delivery of
treasury management services to or for the benefit of any Loan Party which is entered into or
maintained with a Lender or Affiliate of a Lender and which is not prohibited by the express terms
of the Loan Documents.



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Revolving Loans, a Revolving Loan Notice, (b) with respect to an L/C Credit
Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing
Line Loan Notice.



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total Outstandings
held or



17









 







deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.



     “Responsible Officer” means the president, senior vice president, chief financial
officer, treasurer, or vice president-chief risk officer of a Loan Party and, solely for purposes
of notices given pursuant to Article II, any other officer or employee of the applicable
Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent.
Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party.



     “Restricted Payment” means, with respect to any Person, any dividend or other
distribution (whether in cash, securities or other property) with respect to any Equity Interest of
such Person, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Equity Interest, or on account of any return of capital to
such Person’s stockholders, partners or members (or the equivalent Person thereof).



     “Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of
the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by
each of the Lenders pursuant to Section 2.01.



     “Revolving Loan” has the meaning specified in Section 2.01.



     “Revolving Loan Notice” means a notice of (a) a Revolving Borrowing, (b) a conversion
of Revolving Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of
Exhibit A.



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



     “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the PCAOB.



     “Senior Note Agreement” means the Note Agreement dated as of September 21, 1992, for
the issuance of $35,000,000 8.51% Senior Notes due September 30, 2017, as amended or otherwise
modified from time to time.



     “Senior Notes Indebtedness” means all indebtedness outstanding under the Senior Note
Agreement.



18









 





     “Shareholders’ Equity” means, as of any date of determination, consolidated
shareholders’ equity of the Borrower and its Subsidiaries as of that date determined in accordance
with GAAP.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Borrower.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a Lender).



     “Swing Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.04.



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



     “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



19









 





     “Swing Line Loan” has the meaning specified in Section 2.04(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $20,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



     “Synthetic Lease Obligation” means, with respect to any Person, the monetary
obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease,
or (b) 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 the indebtedness of such Person (without regard to accounting treatment).



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



     “Threshold Amount” means $75,000,000.



     “Total Capitalization” means, as of any date of determination, the sum of (i)
Shareholders’ Equity on such date plus (ii) Consolidated Funded Indebtedness on such date.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



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



     “United States” and “U.S.” mean the United States of America.



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).




     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:




     (a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth herein or



20









 







in
any other Loan Document), (ii) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, the Loan Document in which such references appear, (v) any
reference to any law shall include all statutory and regulatory provisions consolidating,
amending, replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and all tangible
and intangible assets and properties, including cash, securities, accounts and contract
rights.




     (b) In the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to”
and “until” each mean “to but excluding;” and the word “through”
means “to and including.”




     (c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or
any other Loan Document.



     1.03 Accounting Terms.




     (a) Generally. All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in preparing the
Audited Financial Statements, except as otherwise specifically prescribed herein.
Notwithstanding the foregoing, for purposes of determining compliance with any covenant
(including the computation of any financial covenant) contained herein, Indebtedness of the
Borrower and its Subsidiaries shall be deemed to be carried at 100%
of the outstanding principal amount thereof, and the effects of FASB ASC 825 on
financial liabilities shall be disregarded.




     (b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and
either the Borrower or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement
to preserve the original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such change
therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such



21









 







change in GAAP. Any amendment of
this Agreement or any other Loan Document, at any time, with regard to any such change in
GAAP shall be effected without, in connection therewith, (a) the Borrower or any Guarantor
being obligated to pay any fee, (b) any increase in the Applicable Rate or (c) any other
increase in the consideration then payable by the Borrower or any Guarantor pursuant to
this Agreement or any other Loan Document.



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



     1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).



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



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Revolving Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrower from
time to time, on any Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender’s Commitment; provided,
however, that after giving effect to any Revolving Borrowing, (i) the Total Outstandings
shall
not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Commitment. Within the limits of
each Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrower may
borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this
Section 2.01. Revolving Loans may be Base Rate Loans, LIBOR Floating Rate Loans or
Eurodollar Rate Loans, as further provided herein.



     2.02 Borrowings, Conversions and Continuations of Revolving Loans.




     (a) Each Revolving Borrowing, each conversion of Revolving Loans from one Type to the
other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be



22









 







given by telephone. Each such
notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to
LIBOR Floating Rate Loans or Base Rate Loans, and (ii) on the requested date of any
Borrowing of LIBOR Floating Rate Loans or Base Rate Loans. Each telephonic notice by the
Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to
the Administrative Agent of a written Revolving Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a
whole multiple of $1,000,000 in excess thereof. Except as provided in Sections
2.03(c) and 2.04(c), each Borrowing of or conversion to LIBOR Floating Rate
Loans or Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof. Each Revolving Loan Notice (whether telephonic or written)
shall specify (i) whether the Borrower is requesting a Revolving Borrowing, a conversion of
Revolving Loans from one Type to the other, or a continuation of Eurodollar Rate Loans,
(ii) the requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Revolving Loans to be
borrowed, converted or continued, (iv) the Type of Revolving Loans to be borrowed or to
which existing Revolving Loans are to be converted, and (v) if applicable, the duration of
the Interest Period with respect thereto. If the Borrower fails to specify a Type of
Revolving Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting
a conversion or continuation, then the applicable Revolving Loans shall be made as, or
converted to, LIBOR Floating Rate Loans; provided that, if the LIBOR Daily Floating
Rate is unavailable, then the applicable Revolving Loans shall be made as, or converted to,
Base Rate Loans. Any such automatic conversion to LIBOR Floating Rate Loans or, if
applicable, Base Rate Loans, shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Revolving Loan Notice, but fails to specify an Interest Period, it will be deemed to
have requested a LIBOR Floating Rate Loan.





     (b) Following receipt of a Revolving Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable Percentage of the applicable
Revolving Loans, and if no timely notice of a conversion or continuation is provided by the
Borrower, the Administrative Agent shall notify each Lender of the details of any automatic
conversion to LIBOR Floating Rate Loans or, if applicable, Base Rate Loans described in the
preceding subsection. In the case of a Revolving Borrowing, each Lender shall make the
amount of its Revolving Loan available to the Administrative Agent in immediately available
funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day
specified in the applicable Revolving Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the Administrative Agent either by
(i) crediting the account of the Borrower on the books of Bank of America with the amount
of such funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and



23









 







reasonably acceptable to) the Administrative Agent by the
Borrower; provided, however, that if, on the date the Revolving Loan Notice
with respect to such Borrowing is given by the Borrower, there are L/C Borrowings
outstanding, then the proceeds of such Borrowing, first, shall be applied to the
payment in full of any such L/C Borrowings, and second, shall be made available to
the Borrower as provided above.




     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During
the existence of a Default, no Loans may be requested as, converted to or continued as
Eurodollar Rate Loans without the consent of the Required Lenders, and the Required Lenders
may demand that any or all of the then outstanding Eurodollar Rate Loans be converted
immediately to Base Rate Loans and Borrower agrees to pay all amounts due under Section
3.05 in accordance with the terms thereof due to any such conversion.




     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon
determination of such interest rate. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of
America’s prime rate used in determining the Base Rate promptly following the public
announcement of such change. The Administrative Agent shall notify the Borrower and the
Lenders of any change in the LIBOR Daily Floating Rate on the date such change occurs.




     (e) After giving effect to all Revolving Borrowings, all conversions of Revolving
Loans from one Type to the other, and all continuations of Revolving Loans as the same
Type, there shall not be more than ten Interest Periods in effect with respect to Revolving
Loans.




     2.03 Letters of Credit.




     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or any of
its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings under the Letters of
Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for
the account of the Borrower or any of its Subsidiaries and any drawings thereunder;
provided that after giving effect to any L/C Credit Extension with respect to any
Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y)
the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding



24









 







Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower
for the issuance or amendment of a Letter of Credit shall be deemed to be a representation
by the Borrower that the L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. The Existing Letters of Credit shall be deemed to have been issued
pursuant hereto, and from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.




     (ii) The L/C Issuer shall not issue any Letter of Credit, if the expiry date of such
requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless
all the Lenders have approved such expiry date.




     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:




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




     (B) the issuance of such Letter of Credit would violate one or more policies of
the L/C Issuer applicable to letters of credit generally;




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer
and except with respect to any Letters of Credit issued in replacement of an
Existing Letter of Credit, such Letter of Credit is in an initial stated amount less
than $100,000;




     (D) such Letter of Credit is to be denominated in a currency other than
Dollars;




     (E) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder; or




     (F) a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C



25









 







Issuer has entered into satisfactory arrangements with the Borrower or such Lender
to eliminate the L/C Issuer’s risk with respect to such Lender.




     (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.




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




     (vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the L/C Issuer shall have
all of the benefits and immunities (A) provided to the Administrative Agent in Article
IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used
in Article IX included the L/C Issuer with respect to such acts or omissions, and
(B) as additionally provided herein with respect to the L/C Issuer.




     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension
Letters of Credit.




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



26









 






     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan
Party, 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 Article
IV shall not then be satisfied, then, subject to the terms and conditions hereof, the
L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the
Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case
may be, in each case in accordance with the L/C Issuer’s usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal to the product of
such Lender’s Applicable Percentage times the amount of such Letter of Credit.




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a specific request to
the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the extension of such Letter of Credit at any time to
an expiry date not later than the Letter of Credit Expiration Date; provided,
however, that the L/C Issuer shall not permit any such extension if (A) the L/C
Issuer has determined that it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as extended) under the terms hereof
(by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in writing) on or
before the day that is five Business Days before the Non-Extension Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit such extension or
(2) from the Administrative Agent, any Lender or the Borrower that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied, and in each
such case directing the L/C Issuer not to permit such extension.




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



27









 






     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower
shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such time,
the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of
the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such
Lender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed to have
requested a Revolving Borrowing of LIBOR Floating Rate Loans to be disbursed on the Honor
Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02 for the principal amount of LIBOR Floating Rate
Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and
the conditions set forth in Section 4.02 (other than the delivery of a Revolving
Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to
this Section 2.03(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.




     (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available (and the Administrative Agent may apply Cash Collateral provided for this
purpose) for the account of the L/C Issuer at the Administrative Agent’s Office in an amount
equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on
the Business Day specified in such notice by the Administrative Agent, whereupon, subject to
the provisions of Section 2.03(c)(iii), each Lender that so makes funds available
shall be deemed to have made a LIBOR Floating Rate Loan to the
Borrower in such amount. The Administrative Agent shall remit the funds so received to
the L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Revolving Borrowing of LIBOR Floating Rate Loans because the conditions set forth in
Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be
deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the Default Rate. In such
event, each Lender’s payment to the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.03.




     (iv) Until each Lender funds its Revolving Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be
solely for the account of the L/C Issuer.



28









 






     (v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Revolving Loans
pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 4.02 (other than delivery by the Borrower of a Revolving Loan Notice). No
such making of an L/C Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking
industry rules on interbank compensation, plus any administrative, processing or similar
fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender
pays such amount (with interest and fees as aforesaid), the amount so paid (other than
interest and fees as aforesaid) shall constitute such Lender’s Revolving Loan included in
the relevant Revolving Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as
the case may be. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this clause
(vi) shall be conclusive absent manifest error.




     (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the
account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Applicable Percentage thereof in the same funds as those
received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of



29









 







the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal to the Federal
Funds Rate from time to time in effect. The obligations of the Lenders under this clause
shall survive the payment in full of the Obligations and the termination of this Agreement.




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




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




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




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




     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such
Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to
any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law; or




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



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




     (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to
obtain any document (other than any sight draft, certificates and documents expressly



30









 







required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering any such
document. None of the L/C Issuer, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be
liable to any Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders or the Required Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful misconduct; or
(iii) the due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes
all risks of the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor
any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible
for any of the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer
may be liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C
Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by
the beneficiary of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing,
the L/C Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the
contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.




     (g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the
L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement
applicable to the Existing Letters of Credit), (i) the rules of the ISP shall apply to each
standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of Commerce at
the time of issuance shall apply to each commercial Letter of Credit.




     (h) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Applicable Percentage a Letter of
Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the
Applicable Rate times the daily amount available to be drawn under such Letter of
Credit; provided, however, any Letter of Credit Fees otherwise payable for the account of a
Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender
has not provided Cash Collateral reasonably satisfactory to the L/C Issuer shall be
payable, to the maximum extent permitted by applicable Law, to the other Lenders in



31









 







accordance with the upward adjustments in their respective Applicable Percentages allocable
to such Letter of Credit pursuant to Section 2.17(a)(iv), with the balance of such
fee, if any, payable to the L/C Issuer for its own account. For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees
shall be (i) due and payable on the first Business Day after the end of each March, June,
September and December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and
(ii) computed on a quarterly basis in arrears. If there is any change in the Applicable
Rate during any quarter, the daily amount available to be drawn under each Letter of Credit
shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein while any Event of Default under Section 8.01(a) exists,
all Letter of Credit Fees shall accrue at the Default Rate.




     (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.
The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee (i)
with respect to each commercial Letter of Credit, at the rate specified in the Bank of
America Fee Letter, computed on the amount of such Letter of Credit, and payable upon the
issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit
increasing the amount of such Letter of Credit, at a rate separately agreed between the
Borrower and the L/C Issuer, computed on the amount of such increase, and payable upon the
effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit,
at the rate per annum specified in the Bank of America Fee Letter, computed on the daily
amount available to be drawn under such Letter of Credit and on a quarterly basis in
arrears. Such fronting fee shall be due and payable on the first Business Day after the
end of each March, June, September and December in
respect of the most recently-ended quarterly period (or portion thereof, in the case
of the first payment), commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand.
For purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.06. In addition, the Borrower shall pay directly to the L/C Issuer for
its own account the customary issuance, presentation, amendment and other processing fees,
and other standard costs and charges, of the L/C Issuer relating to letters of credit as
from time to time in effect. Such customary fees and standard costs and charges are due
and payable within 10 days of demand and are nonrefundable.




     (j) Conflict with Issuer Documents. In the event of any conflict between the
terms hereof and the terms of any Issuer Document, the terms hereof shall control.




     (k) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter
of Credit issued or outstanding hereunder is in support of any obligations of, or is for
the account of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer
hereunder for any and all drawings under such Letter of Credit. The Borrower hereby
acknowledges that the issuance of Letters of Credit for the account of Subsidiaries



32









 







inures
to the benefit of the Borrower, and that the Borrower’s business derives substantial
benefits from the businesses of such Subsidiaries.



     2.04 Swing Line Loans.




     (a) The Swing Line. Subject to the terms and conditions set forth herein, the
Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in
this Section 2.04, to make loans (each such loan, a “Swing Line Loan”) to
the Borrower from time to time on any Business Day during the Availability Period in an
aggregate amount not to exceed at any time outstanding the amount of the Swing Line
Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the
Applicable Percentage of the Outstanding Amount of Revolving Loans and L/C Obligations of
the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment;
provided, however, that after giving effect to any Swing Line Loan, (i) the
Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender’s Commitment, and provided, further, that the Borrower
shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line
Loan. Within the foregoing limits, and subject to the other terms and conditions hereof,
the Borrower may borrow under this Section 2.04, prepay under Section 2.05,
and reborrow under this Section 2.04. Each Swing Line Loan shall be a LIBOR
Floating Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing
Line Lender a risk participation in such Swing Line Loan in an amount equal to the product
of such Lender’s Applicable Percentage times the amount of such Swing Line Loan.




     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which
may be given by telephone. Each such notice must be received by the Swing Line Lender and
the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and
shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii)
the requested borrowing date, which shall be a Business Day. Each such telephonic notice
must be confirmed promptly by delivery to the Swing Line Lender and the Administrative
Agent of a written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Promptly after receipt by the Swing Line Lender of
any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also
received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof. Unless the
Swing Line Lender has received notice (by telephone or in writing) from the Administrative
Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the
proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing
Line Loan as a result of the limitations set forth in the proviso to the first sentence of



33









 







Section 2.04(a), or (B) that one or more of the applicable conditions specified in
Article IV is not then satisfied, then, subject to the terms and conditions hereof,
the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in
such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the
Borrower at its office by crediting the account of the Borrower on the books of the Swing
Line Lender in immediately available funds.




     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a LIBOR Floating Rate Loan in an amount equal
to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be deemed to be a
Revolving Loan Notice for purposes hereof) and in accordance with the requirements of
Section 2.02, without regard to the minimum and multiples specified therein for the
principal amount of LIBOR Floating Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02. The Swing Line
Lender shall furnish the Borrower with a copy of the applicable Revolving Loan Notice
promptly after delivering such notice to the Administrative Agent. Each Lender shall make
an amount equal to its Applicable Percentage of the amount specified in such Revolving Loan
Notice available to the Administrative Agent in immediately available funds (and the
Administrative Agent may apply cash collateral available with respect to the applicable
Swing Line Loan pursuant to Section 2.17(a)(ii) clause third) for the account of the
Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day
specified in such Revolving Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Lender that so makes funds available shall be deemed to have made a LIBOR Floating Rate
Loan to the
Borrower in such amount. The Administrative Agent shall remit the funds so received to
the Swing Line Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Borrowing in accordance with Section 2.04(c)(i), the request for LIBOR Floating Rate
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed
payment in respect of such participation.




     (iii) If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by the Swing Line Lender in



34









 







accordance with
banking industry rules on interbank compensation, plus any administrative processing or
similar fees customarily charged by the Swing Line Lender in connection with the foregoing.
If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid
(other than interest and fees as aforesaid) shall constitute such Lender’s Revolving Loan
included in the relevant Revolving Borrowing or funded participation in the relevant Swing
Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any
Lender (through the Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.




     (iv) Each Lender’s obligation to make Revolving Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the Borrower to repay
Swing Line Loans, together with interest as provided herein.




     (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof
in the same funds as those received by the Swing Line Lender.





     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent
will make such demand upon the request of the Swing Line Lender. The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.




     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each
Lender funds its LIBOR Floating Rate Loan or risk participation pursuant to this
Section 2.04 to refinance such Lender’s Applicable Percentage of any Swing Line
Loan, interest in respect of such Applicable Percentage shall be solely for the account of
the Swing Line Lender.



35









 






     (f) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly to the Swing
Line Lender.



     2.05 Prepayments.




     (a) The Borrower may, upon notice to the Administrative Agent, at any time or from
time to time voluntarily prepay Revolving Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the Administrative Agent
not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of
Eurodollar Rate Loans and (B) on the date of prepayment of LIBOR Floating Rate Loans or
Base Rate Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal
amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any
prepayment of LIBOR Floating Rate Loans or Base Rate Loans shall be in a principal amount
of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less,
the entire principal amount thereof then outstanding. Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Revolving Loans to be prepaid and, if
Eurodollar Rate Loans are to be repaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice,
and of the amount of such Lender’s Applicable Percentage of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on
the amount prepaid, together with any additional amounts required pursuant to Section
3.05. Each such prepayment shall be applied to the Revolving Loans of the Lenders in
accordance with their respective Applicable Percentages.




     (b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line
Loans in whole or in part without premium or penalty; provided that (i) such notice
must be received by the Swing Line Lender and the Administrative Agent not later than 1:00
p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum
principal amount of $100,000 or, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such prepayment. If
such notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified
therein.




     (c) If for any reason the Total Outstandings at any time exceed the Aggregate
Commitments then in effect, the Borrower shall immediately prepay Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to such excess;
provided, however, that the Borrower shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the
prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments
then in effect.



36









 





     2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce
the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving
effect to any reduction of the Aggregate Commitments, the Letter of Credit Sublimit or the Swing
Line Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be automatically
reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of
any such notice of termination or reduction of the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable
Percentage. All fees accrued until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such termination.



     2.07 Repayment of Loans.




     (a) The Borrower shall repay to the Lenders on the Maturity Date the aggregate
principal amount of Revolving Loans outstanding on such date.




     (b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the
date ten Business Days after such Loan is made and (ii) the Maturity Date.



     2.08 Interest.




     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest
Period plus the Applicable Rate; (ii) each LIBOR Floating Rate Loan shall bear
interest on the outstanding principal amount thereof from the applicable borrowing date at
a rate per annum equal to the LIBOR Daily Floating Rate plus the Applicable Rate;
(iii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate; and (iv)
each Swing Line Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the LIBOR Daily Floating Rate
plus the Applicable Rate.




(b) (i) If any amount of principal of any Loan is not paid when due (after giving effect to
any applicable grace periods), whether at stated maturity, by acceleration or otherwise,
such amount shall thereafter bear interest at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (ii) If any amount (other than principal of any Loan) payable by the Borrower under any
Loan Document is not paid when due (after giving effect to any applicable



37









 







grace periods),
whether at stated maturity, by acceleration or otherwise, then upon the request of the
Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate
per annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.




     (iii) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.




     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment
Date applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before and after
judgment, and before and after the commencement of any proceeding under any Debtor Relief
Law.



     2.09 Fees. In addition to certain fees described in subsections (h) and (i)
of Section 2.03:




     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Applicable Percentage, a commitment fee
equal to the Applicable Rate times the actual daily amount by which the Aggregate
Commitments exceed the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the
Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section
2.17. The commitment fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article IV is
not met, and shall be due and payable quarterly in arrears on the first Business Day after
the end of each March, June, September and December, commencing with the first such date to
occur after the Closing Date, and on the last day of the Availability Period. The
commitment fee shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.




     (b) Other Fees. (i) The Borrower shall pay to each Arranger and the
Administrative Agent for their own respective accounts fees in the amounts and at the times
specified in (i) the Bank of America Fee Letter or (ii) the BB&T Fee Letter, as applicable.
Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.




     (ii) The Borrower shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.



     2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans
(including Base Rate Loans determined by reference to the Eurodollar Rate) shall be made on the
basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year and actual days
elapsed (which results in more fees or interest, as applicable, being paid than if computed on the



38









 







basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day on which it is made
shall, subject to Section 2.12(a), bear interest for one day. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.



     2.11 Evidence of Debt.




     (a) The Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records maintained by
any Lender and the accounts and records of the Administrative Agent in respect of such
matters, the accounts and records of the Administrative Agent shall control in the absence
of manifest error. Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a
Note, which shall evidence such Lender’s Loans in addition to such accounts or records.
Each Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.




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



     2.12 Payments Generally; Administrative Agent’s Clawback.




     (a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder shall be made
to the Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the Administrative Agent’s Office in Dollars and in immediately
available funds not later than 2:00 p.m. on the date specified herein. The Administrative
Agent will promptly distribute to each Lender its Applicable Percentage (or other
applicable share as provided herein) of such payment in like funds as received by wire
transfer to such Lender’s Lending Office. All payments received by the Administrative
Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment



39









 







to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be made on the
next following Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.




(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of
any Revolving Borrowing of Eurodollar Rate Loans (or, in the case of any Revolving Borrowing
of Base Rate Loans, prior to 12:00 noon on the date of such Revolving Borrowing) that such
Lender will not make available to the Administrative Agent such Lender’s share of such
Revolving Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.02 (or, in the case of a
Revolving Borrowing of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Revolving Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount in immediately
available funds with interest thereon, for each day from and including the date such amount
is made available to the Borrower to but excluding the date of payment to the Administrative
Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, plus any administrative processing or similar fees
customarily charged by the Administrative Agent in connection with the foregoing, and (B)
in the case of a payment to be made by the Borrower, the interest rate applicable to Base
Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative
Agent for the same or an overlapping period, the Administrative Agent shall promptly remit
to the Borrower the amount of such interest paid by the Borrower for such period. If such
Lender pays its share of the applicable Revolving Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s Revolving Loan
included in such Revolving Borrowing. Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have failed to make
such payment to the Administrative Agent.




     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, in immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by
the



40









 







Administrative Agent in accordance with banking industry rules on interbank
compensation.



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




     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to
the Administrative Agent funds for any Loan to be made by such Lender as provided in the
foregoing provisions of this Article II, and such funds are not made available to
the Borrower by the Administrative Agent because the conditions to the applicable Credit
Extension set forth in Article IV are not satisfied or waived in accordance with
the terms hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.




     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder
to make Revolving Loans, to fund participations in Letters of Credit and Swing Line Loans
and to make payments pursuant to Section 10.04(c) are several and not joint. The
failure of any Lender to make any Revolving Loan, to fund any such participation or to make
any payment under Section 10.04(c) on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no Lender shall
be responsible for the failure of any other Lender to so make its Revolving Loan, to
purchase its participation or to make its payment under Section 10.04(c).




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




     2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Revolving Loans made by it, or the participations in L/C Obligations or in Swing Line Loans
held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
such Revolving Loans or participations and accrued interest thereon greater than its pro
rata share thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Revolving Loans and subparticipations in L/C Obligations and Swing Line Loans
of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans and other amounts owing them,
provided that:




     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and



41









 






     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
(including the application of funds arising from the existence of a Defaulting Lender) or
(y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Revolving Loans or subparticipations in L/C Obligations or Swing
Line Loans to any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).



     The Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.



     2.14 Extension of Maturity Date.




     (a) Requests for Extension. The Borrower may, by notice to the Administrative
Agent (who shall promptly notify the Lenders) not more frequently than once in every 12
month period, but in any event not later than 60 days prior to the Maturity Date then in
effect hereunder (the “Existing Maturity Date”), request that each Lender extend
such Lender’s Maturity Date for an additional one-year period from the Existing Maturity
Date.




     (b) Lender Elections to Extend. Each Lender, acting in its sole and
individual discretion, shall, by notice to the Administrative Agent given not later than 30
days following the date that notice of the Borrower’s request is given by the
Administrative Agent (the “Notice Date”), advise the Administrative Agent whether
or not such Lender agrees to such extension (and each Lender that determines not to so
extend its Maturity Date (a “Non-Extending Lender”) shall notify the
Administrative Agent of such fact promptly after such determination (but in any event no
later than the Notice Date) and any Lender that does not so advise the Administrative Agent
on or before the Notice Date shall be deemed to be a Non-Extending Lender. The election of
any Lender to agree to such extension shall not obligate any other Lender to so agree.




     (c) Notification by Administrative Agent. The Administrative Agent shall
notify the Borrower of each Lender’s determination under this Section no later than the
date 30 days prior to the Existing Maturity Date (or, if such date is not a Business Day,
on the next preceding Business Day). Upon such notification, subject to the provisions of
clause (e) below, the Existing Maturity Date of each Lender that has elected to agree to
such extension (an “Extending Lender”) shall be automatically so extended without
further action on the part of the Borrower or the Existing Lender(s).




     (d) Additional Commitment Lenders. The Borrower shall have the right on or
before the Existing Maturity Date to replace each Non-Extending Lender with, and add as
“Lenders” under this Agreement in place thereof, one or more Eligible Assignees (each, an
“Additional Commitment Lender”) as provided in Section 10.13, each of



42









 







which
Additional Commitment Lenders shall have entered into an Assignment and Assumption pursuant
to which such Additional Commitment Lender shall, effective as of the Existing Maturity
Date, undertake a Commitment (and, if any such Additional Commitment Lender is already a
Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder on such
date).




     (e) Conditions to Effectiveness of Extensions. Notwithstanding the foregoing,
the extension of the Existing Maturity Date pursuant to this Section shall not be effective
with respect to any Lender unless:




     (i) no Default shall have occurred and be continuing on the date of such extension and
after giving effect thereto;




     (ii) the representations and warranties contained in this Agreement are true and
correct on and as of the date of such extension and after giving effect thereto, as though
made on and as of such date (or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific date); and




     (iii) on the Maturity Date of each Non-Extending Lender, the Borrower shall prepay any
Revolving Loans outstanding on such date (and pay any additional amounts required pursuant
to Section 3.05) to the extent necessary to keep outstanding Revolving Loans ratable
with any revised Applicable Percentages of the respective Lenders effective as of such date.




     (f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.13 or 10.01 to the contrary.




     2.15 Increase in Commitments.




     (a) Request for Increase. Provided there exists no Default, upon notice to
the Administrative Agent (which shall promptly notify the Lenders), the Borrower may from
time to time, request an increase in the Aggregate Commitments by an amount (for all such
requests) not exceeding $200,000,000; provided that any such request for an
increase shall be in a minimum amount of $5,000,000. At the time of sending such notice,
the Borrower (in consultation with the Administrative Agent) shall specify the time period
within which each Lender is requested to respond (which shall in no event be less than ten
Business Days from the date of delivery of such notice to the Lenders).




     (b) Lender Elections to Increase. Each Lender shall notify the Administrative
Agent within such time period whether or not it agrees to increase its Commitment and, if
so, whether by an amount equal to, greater than, or less than its Applicable Percentage of
such requested increase. Any Lender not responding within such time period shall be deemed
to have declined to increase its Commitment.




     (c) Notification by Administrative Agent; Additional Lenders. The
Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to
each request made hereunder. To achieve the full amount of a requested increase and
subject to the approval of the Administrative Agent, the L/C Issuer and the



43









 







Swing Line
Lender (which approvals shall not be unreasonably withheld), the Borrower may also invite
additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance reasonably satisfactory to the Administrative Agent.




     (d) Effective Date and Allocations. If the Aggregate Commitments are
increased in accordance with this Section, the Administrative Agent and the Borrower shall
determine the effective date (the “Increase Effective Date”) and the final
allocation of such increase. The Administrative Agent shall promptly notify the Borrower
and the Lenders of the final allocation of such increase and the Increase Effective Date.




     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan
Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed
by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions
adopted by such Loan Party approving or consenting to such increase, and (ii) in the case
of the Borrower, certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other Loan Documents
are true and correct on and as of the Increase Effective Date, except to the extent that
such representations and warranties specifically refer to an earlier date, in which case
they are true and correct as of such earlier date, and except that for purposes of this
Section 2.15, the representations and warranties contained in subsection
(a) of Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to subsection (a) of Section 6.01, and (B) no Default
exists. The Borrower shall prepay any Revolving Loans outstanding on the Increase
Effective Date (and pay any additional amounts required pursuant to Section 3.05)
to the extent necessary to keep the
outstanding Revolving Loans ratable with any revised Applicable Percentages arising
from any nonratable increase in the Commitments under this Section.




     (f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.13 or 10.01 to the contrary.



          2.16 Cash Collateral.




     (a) Certain Credit Support Events. Upon the request of the Administrative
Agent or the L/C Issuer (i) if the L/C Issuer has honored any full or partial drawing
request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or
(ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize the
then Outstanding Amount of all L/C Obligations. At any time that there shall exist any
Revolving Credit Lender that is a Defaulting Lender, immediately upon the request of the
Administrative Agent, the L/C Issuer or the Swing Line Lender, the Borrower shall deliver
to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting
Exposure (after giving effect to Section 2.17(a)(iv) and any Cash Collateral
provided by the Defaulting Lender).




     (b) Grant of Security Interest. All Cash Collateral (other than credit
support not constituting funds subject to deposit) shall be maintained in blocked, interest
bearing



44









 







deposit accounts at Bank of America. The Borrower, and to the extent provided by
any Revolving Credit Lender, such Revolving Credit Lender, hereby grants to (and subjects
to the control of) the Administrative Agent, for the benefit of the Administrative Agent,
the L/C Issuer and the Revolving Credit Lenders (including the Swing Line Lender), and
agrees to maintain, a first priority security interest in all such cash, deposit accounts
and all balances therein, and all other property so provided as collateral pursuant hereto,
and in all proceeds of the foregoing, all as security for the obligations to which such
Cash Collateral may be applied pursuant to Section 2.16(c). If at any time the
Administrative Agent determines that Cash Collateral is subject to any right or claim of
any Person other than the Administrative Agent as herein provided, or that the total amount
of such Cash Collateral is less than the applicable Fronting Exposure and other obligations
secured thereby, the Borrower or the relevant Revolving Credit Lender that is a Defaulting
Lender will, promptly upon demand by the Administrative Agent, pay or provide to the
Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such
deficiency.




     (c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.16 or Sections
2.03, 2.04, 2.05 or 8.02 in respect of Letters of Credit or
Swing Line Loans shall be held and applied to the satisfaction of the specific L/C
Obligations, Swing Line Loans, obligations to fund participations therein (including, as to
Cash Collateral provided by a Revolving Credit Lender that is a Defaulting Lender, any
interest accrued on such obligation) and other obligations for which the Cash Collateral
was so provided, prior to any other application of such property as may be provided for
herein.




     (d) Release. Cash Collateral (or the appropriate portion thereof) provided to
reduce Fronting Exposure or other obligations shall be released promptly following (i) the
elimination of the applicable Fronting Exposure or other obligations giving rise thereto
(including by the termination of Defaulting Lender status of the applicable Revolving
Credit Lender (or, as appropriate, its assignee following compliance with Section
10.06(b)(vi)) or (ii) the Administrative Agent’s good faith determination that there
exists excess Cash Collateral; provided, however, (x) that Cash Collateral
furnished by or on behalf of a Loan Party shall not be released during the continuance of a
Default or Event of Default (and following application as provided in this Section
2.16 may be otherwise applied in accordance with Section 8.03), and (y) the
Person providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable,
may agree that Cash Collateral shall not be released but instead held to support future
anticipated Fronting Exposure or other obligations.



          2.17 Defaulting Lenders.




     (a) Adjustments. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender
is no longer a Defaulting Lender, to the extent permitted by applicable Law:



45









 






     (i) Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 10.01.




     (ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and
including any amounts made available to the Administrative Agent by that Defaulting Lender
pursuant to Section 10.08), shall be applied at such time or times as may be
determined by the Administrative Agent as follows: first, to the payment of any amounts
owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuer
or Swing Line Lender hereunder; third, if so determined by the Administrative Agent or
requested by the L/C Issuer or Swing Line Lender, to be held as cash collateral for future
funding obligations of that Defaulting Lender of any participation in any Swing Line Loan or
Letter of Credit; fourth, as the Borrower may request (so long as no Default or Event of
Default exists), to the funding of any Loan in respect of which that Defaulting Lender has
failed to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower,
to be held in an interest bearing deposit account and released in order to satisfy
obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the
payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result
of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer
or Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender’s
breach of its obligations under this Agreement; seventh, so long as no Default or Event of
Default exists, to the payment of any amounts owing to the Borrower as a result of any
judgment of a court of competent jurisdiction obtained by the
Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach
of its obligations under this Agreement; and eighth, to that Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; provided that if (x) such
payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of
which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans
or L/C Borrowings were made at a time when the conditions set forth in Section 4.02
were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C
Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to
the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any
payments, prepayments or other amounts paid or payable to a Defaulting Lender that are
applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral
pursuant to this Section 2.17(a)(ii) shall be deemed paid to and redirected by that
Defaulting Lender, and each Lender irrevocably consents hereto.




     (iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to
receive any commitment fee pursuant to Section 2.09(a) for any period during which
that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such
fee that otherwise would have been required to have been paid to that Defaulting Lender) and
(y) shall be limited in its right to receive Letter of Credit Fees as provided in
Section 2.03(h).



46









 






     (iv) Reallocation of Applicable Percentages. During any period in which there
is a Defaulting Lender, for purposes of computing the amount of the obligation of each
non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit or
Swing Line Loans pursuant to Sections 2.03 and 2.04, the “Applicable
Percentage” of each non-Defaulting Lender shall be computed without giving effect to the
Commitment of that Defaulting Lender; provided that, (i) each such reallocation shall be
given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no
Default or Event of Default exists; and (ii) the aggregate obligation of each non-Defaulting
Lender to acquire, refinance or fund participations in Letters of Credit and Swing Line
Loans shall not exceed the positive difference, if any, of (1) the Commitment of that
non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the Loans of
that Lender.




     (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, Swing
Line Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting
Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will
so notify the parties hereto, whereupon as of the effective date specified in such notice
and subject to any conditions set forth therein (which may include arrangements with
respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that
portion of outstanding Loans of the other Lenders or take such other actions as the
Administrative Agent may determine to be necessary to cause the Loans and funded and
unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata
basis by the Lenders in accordance with their Applicable Percentages (without giving effect
to Section 2.17(a)(iv)), whereupon that Lender will cease to be a Defaulting
Lender; provided that no adjustments will be made retroactively with respect to fees
accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting
Lender; and provided, further, that except to the extent
otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Lender will constitute a waiver or release of any claim of any party
hereunder arising from that Lender’s having been a Defaulting Lender



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.




     (a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be made free
and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes,
provided that if the Borrower shall be required by applicable law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the Administrative
Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall timely pay the full



47









 







amount deducted to the relevant
Governmental Authority in accordance with applicable law.




     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions
of subsection (a) above, the Borrower shall timely pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.




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




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




     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which the
Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party,
with respect to payments hereunder or under any other Loan Document 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 or the Administrative Agent, 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 of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent, shall
deliver such other documentation prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent as will enable the Borrower or the Administrative
Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.



     Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:



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     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of Section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form
W-8BEN, or




     (iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit the Borrower to
determine the withholding or deduction required to be made.




     (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or
the L/C Issuer determines, in its sole discretion, that it has received a refund of any
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, it shall pay to
the Borrower an amount equal to such refund (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section with respect to the
Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Lender or the L/C Issuer, as
the case may be, 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, such Lender or the L/C Issuer, agrees to
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, such Lender or
the L/C Issuer in the event the Administrative Agent, such Lender or the L/C Issuer is
required to repay such refund to such Governmental Authority. This subsection shall not be
construed to require the Administrative Agent, any Lender or the L/C Issuer to make
available its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.



     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate or the LIBOR Daily Floating Rate, as applicable, or any Governmental
Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or
to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue
applicable Eurodollar Rate Loans or LIBOR Floating Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans or LIBOR Floating Rate Loans



49









 







shall be suspended until such Lender notifies
the Administrative Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender
(with a copy to the Administrative Agent), prepay or, if applicable, convert all applicable
Eurodollar Rate Loans or LIBOR Floating Rate Loans of such Lender, as applicable, to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue
to maintain such Eurodollar Rate Loans and LIBOR Floating Rate Loans, to such day, or immediately,
if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and LIBOR Floating
Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest
on the amount so prepaid or converted and all amounts due under Section 3.05 in accordance
with the terms thereof due to such prepayment or conversion.



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a Eurodollar Rate Loan or LIBOR Floating Rate Loans or a conversion
to or continuation thereof that (a) Dollar deposits are not being offered to banks in the London
interbank eurodollar market for the applicable amount and, if applicable, Interest Period of such
Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar
Base Rate with respect to a proposed Eurodollar Rate Loan for any requested Interest Period or the
LIBOR Daily Floating Base Rate with respect to a proposed LIBOR Floating Rate Loan, or (c) the
Eurodollar Base Rate for any requested Interest Period or the LIBOR Daily Floating Base Rate with
respect to a proposed LIBOR Floating Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower
and each Lender. Thereafter, the obligation of Lenders to make or maintain Eurodollar Rate Loans
and LIBOR Floating Rate Loans, as applicable, shall be suspended until the Administrative Agent
(upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice,
the Borrower may
revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar
Rate Loans and LIBOR Floating Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Revolving Borrowing of Base Rate Loans in the amount specified
therein.



     3.04 Increased Costs.




     (a) Increased Costs Generally. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Eurodollar Rate or the LIBOR Daily Floating Rate) or the L/C Issuer;




     (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Rate Loan or any LIBOR Floating Rate Loan made by it, or change the basis of
taxation of payments to such Lender or the L/C Issuer in respect thereof (except for
Indemnified Taxes or Other Taxes covered by Section 3.01 and the



50









 







imposition of, or
any change in the rate of, any Excluded Tax payable by such Lender or the L/C Issuer); or




     (iii) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans or LIBOR
Floating Rate Loans made by such Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan or LIBOR Floating Rate Loan (or of maintaining its obligation
to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating
in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in
or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by
such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then,
upon request of such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C
Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the
L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.





     (b) Capital Requirements. If any Lender or the L/C Issuer determines that any
Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender
or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s
or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding
company, if any, as a consequence of this Agreement, the Commitments of such Lender or the
Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by the L/C Issuer, to a level
below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s
holding company could have achieved but for such Change in Law (taking into consideration
such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C
Issuer’s holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the
L/C Issuer’s holding company for any such reduction suffered.




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




     (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C
Issuer to demand compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such
compensation, provided that the Borrower shall not be required to compensate a
Lender



51









 







or the L/C Issuer pursuant to the foregoing provisions of this Section for any
increased costs incurred or reductions suffered more than nine months prior to the date
that such Lender or the L/C Issuer, as the case may be, notifies the Borrower of the Change
in Law giving rise to such increased costs or reductions and of such Lender’s or the L/C
Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect thereof).



     Any Lender requesting compensation under Sections 3.01, 3.04 and 3.05
hereof shall do so within 90 days of the event giving rise to such request or otherwise lose the
right to request such compensation.



     3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result of:




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




     (b) any failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan or
LIBOR Floating Rate Loan on the date or in the amount notified by the Borrower; or




     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
10.13;


including any loss or expense arising from the liquidation or reemployment of funds obtained by it
to maintain such Loan or from fees payable to terminate the deposits from which such funds were
obtained (but specifically excluding any lost profits). The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.




     For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by
it at the Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching
deposit or other borrowing in the London interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.



     3.06 Mitigation Obligations; Replacement of Lenders.




     (a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any additional
amount to any Lender, the L/C Issuer or any Governmental Authority for the account of any
Lender or the L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice



52









 







pursuant to Section 3.02, then such Lender or the L/C Issuer shall, as applicable,
use reasonable efforts to designate a different Lending Office for funding or booking its
Loans or the issuance of any Letters of Credit hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender or the L/C Issuer, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Sections 3.01 or 3.04, as
the case may be, in the future, or eliminate the need for the notice pursuant to
Section 3.02, as applicable, and (ii) in each case, would not subject such Lender
or the L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.




     (b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section
3.01, the Borrower may replace such Lender in accordance with Section 10.13.



     3.07 Survival. All of the Borrower’s obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations hereunder.




ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender
to make its initial Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:




     (a) The Administrative Agent’s receipt of the following, each of which shall be
originals or telecopies (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the signing Loan Party, each dated the
Closing Date (or, in the case of certificates of governmental officials, a recent date
before the Closing Date) and each in form and substance satisfactory to the Administrative
Agent and each of the Lenders:




     (i) executed counterparts of this Agreement and the Guaranty, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrower;




     (ii) a Note executed by the Borrower in favor of each Lender requesting a Note;




     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the Administrative Agent
may require evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party;



53









 






     (iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and that each of the
Borrower and each Guarantor is validly existing, in good standing and qualified to engage in
business in each jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, except to the extent that failure to do
so would not reasonably be expected to have a Material Adverse Effect;




     (v) a favorable opinion of in-house counsel to the Borrower and Moore & Van Allen,
PLLC, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender,
substantially in the form of Exhibit G;




     (vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all consents, licenses and approvals required in connection with the execution,
delivery and performance by such Loan Party and the validity against such Loan Party of the
Loan Documents to which it is a party, and such consents, licenses and approvals shall be in
full force and effect, or (B) stating that no such consents, licenses or approvals are so
required;




     (vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
the representations and warranties of the Borrower and each other Loan Party contained in
Article V or any other Loan Document, or which are contained in any
document furnished (at any time prior to the initial Credit Extension hereunder)
hereunder or thereunder, shall be true and correct on and as of the date of the initial
Credit Extension, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct as of such earlier
date; (B) that no Default shall exist, or would result from such proposed initial Credit
Extension or from the application of the proceeds thereof; (C) that there has been no event
or circumstance since the date of the Audited Financial Statements that has had or would be
reasonably expected to have, either individually or in the aggregate, a Material Adverse
Effect; and (D) the current Debt Ratings;




     (viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter
of the Borrower ended on October 31, 2010, signed by a Responsible Officer of the Borrower;




     (ix) evidence that all existing credit facilities as set forth on Schedule 4.01
(other than the Senior Note Agreement, the Medium Term Notes Indenture and the Existing
Letters of Credit) have been terminated; and




     (x) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders
reasonably may require.




     (b) Any fees required to be paid by the Borrower pursuant to the Loan Documents on or
before the Closing Date shall have been paid.



54









 






     (c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees,
charges and disbursements of counsel to the Administrative Agent (directly to such counsel
if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing
Date, plus such additional amounts of such fees, charges and disbursements as shall
constitute its reasonable estimate of such fees, charges and disbursements incurred or to
be incurred by it through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between the Borrower and the
Administrative Agent).



     Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.



     4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request
for Credit Extension (other than a Revolving Loan Notice requesting only a conversion of Revolving
Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject to the following
conditions precedent:




     (a) The representations and warranties of the Borrower and each other Loan Party
contained in Article V (except for Sections 5.05(b), 5.06,
5.09, 5.11, 5.12 and
5.16) or any other Loan Document, or which are contained in any document
furnished at any time hereunder or thereunder, shall be true and correct on and as of the
date of such Credit Extension, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this Section 4.02,
the representations and warranties contained in subsection (a) of Section
5.05 shall be deemed to refer to the most recent statements furnished pursuant to
subsection (a) of Section 6.01.




     (b) No Default shall exist, or would result from such proposed Credit Extension or
from the application of the proceeds thereof.




     (c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line
Lender shall have received a Request for Credit Extension in accordance with the
requirements hereof.



     Each Request for Credit Extension (other than a Revolving Loan Notice requesting only a
conversion of Revolving Loans to the other Type or a continuation of Eurodollar Rate Loans)
submitted by the Borrower shall be deemed to be a representation and warranty that the conditions
specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of
the applicable Credit Extension.




55











 





ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01 Existence, Qualification and Power. Each Loan Party (a) is (i) duly organized or formed,
validly existing and (ii), as applicable, in good standing under the Laws of the jurisdiction of
its incorporation or organization, (b) has all requisite corporate power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its
assets and carry on its business and (ii) execute, deliver and perform its obligations under the
Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as
applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such qualification or license;
except in each case referred to in clauses (a)(ii), (b)(i) or (c), to the extent that failure to do
so would not reasonably be expected to have a Material Adverse Effect.



     5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to be made under (i)
any Contractual Obligation to which such Person is a party or affecting such Person or the
properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree
of any Governmental Authority or any arbitral award to which such Person or its property is
subject; or (c) violate any Law, except in each case referred to in clauses (b) or (c) to the
extent that such conflict, breach or violation would not reasonably be expected to have a Material
Adverse Effect.



     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, any Loan Party of this Agreement or any other Loan Document, other than any
such approvals, consents, exemptions, authorizations or other actions that have been obtained or
otherwise taken by the Borrower.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms.



     5.05 Financial Statements; No Material Adverse Effect.




          (a) The Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present in all material respects the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of
operations



56









 






for the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other liabilities, direct or contingent, of the
Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes,
material commitments and Indebtedness.




          (b) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or would reasonably be
expected to have a Material Adverse Effect.



     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Borrower, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against
any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any
other Loan Document, or any of the transactions contemplated hereby, or (b) except as specifically
disclosed in the Audited Financial Statements, either individually or in the aggregate would
reasonably be expected to have a Material Adverse Effect.



     5.07 No Default. No Default has occurred and is continuing or would result from the
consummation of the transactions contemplated by this Agreement or any other Loan Document.



     5.08 Ownership of Property; Liens. Each of the Borrower and each Subsidiary has good record
and marketable title in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, except for such defects in title as would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted by
Section 7.01.



     5.09 Environmental Compliance. The Borrower and its Subsidiaries conduct in the ordinary
course of business a review of the effect of existing Environmental Laws and claims alleging
potential liability or responsibility for violation of any Environmental Law on their respective
businesses, operations and properties, and as a result thereof the Borrower has reasonably
concluded that except as specifically disclosed in the Audited Financial Statements, such
Environmental Laws and claims would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.



     5.10 Insurance. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts
(after giving effect to any self-insurance), with such deductibles and covering such assets and
risks of the Borrower and its Subsidiaries in accordance with customary business practices in the
industry of the Borrower, as necessary and appropriate in the good faith business judgment of the
Borrower.



     5.11 Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all Federal, state and other
material taxes, assessments, fees and other governmental charges levied or imposed upon them
or their properties, income or assets otherwise due and payable, except those which are being



57









 




contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect.




     5.12 ERISA Compliance.




          (a) Except as would not reasonably be expected to have a Material Adverse Effect, each
Plan is in compliance with the applicable provisions of ERISA, the Code and other Federal
or state Laws. Each Plan that is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best knowledge of
the Borrower, nothing has occurred which would prevent, or cause the loss of, such
qualification. The Borrower and each ERISA Affiliate has met all applicable requirements
under the Pension Funding Rules in respect of each Pension Plan, and no waiver of minimum
funding standards under the Pension Funding Rules has been applied for or obtained.




          (b) There are no pending or, to the best knowledge of the Borrower, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that
would reasonably be expected to have a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with respect to
any Plan that has resulted or would reasonably be expected to result in a Material Adverse
Effect.




          (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due
and not delinquent under Section 4007 of ERISA) which was not or will not be paid in full
on or before the date due; (iii) neither the Borrower nor any ERISA Affiliate has incurred,
or reasonably expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (iv) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.



     5.13 Subsidiaries; Equity Interests. As of the Closing Date, the Borrower has no Subsidiaries
other than those specifically disclosed in Part (a) of Schedule 5.13, and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Borrower or a Subsidiary in the amounts specified on Part (a) of
Schedule 5.13. The Borrower has no equity investments in any other corporation or entity
other than those specifically disclosed in Part (b) of Schedule 5.13. All of the
outstanding Equity Interests in the Borrower have been validly issued and are fully paid and
nonassessable.



     5.14 Margin Regulations; Investment Company Act.




          (a) The Borrower is not engaged and will not engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock (within



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the
meaning of Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock. Following the application of the proceeds of each
Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the
assets (either of the Borrower only or of the Borrower and its Subsidiaries on a
consolidated basis) subject to the provisions of Section 7.01 or Section
7.03 or subject to any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within
the scope of Section 8.01(e) will be Margin Stock.




          (b) None of the Borrower, any Person Controlling (as defined under the ICA, defined
below) the Borrower, or any Subsidiary is or is required to be registered as an “investment
company” under the Investment Company Act of 1940 (the “ICA”).



     5.15 Disclosure. The Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries
is subject, and all other matters known to it, that, individually or in the aggregate, would
reasonably be expected to result in a Material Adverse Effect. No report, financial statement,
certificate or other information furnished (whether in writing or orally) by or on behalf of any
Loan Party to the Administrative Agent or any Lender hereunder or under any other Loan Document (in
each case, as modified or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided
that, with respect to projected information, the Borrower represents only that such information was
prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the
time.



     5.16 Compliance with Laws. Each Loan Party and each Subsidiary thereof is in compliance in
all material respects with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.



     5.17 Taxpayer Identification Number. The Borrower’s true and correct U.S. taxpayer
identification number is set forth on Schedule 10.02.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding, the Borrower shall, and shall (except in the case of the covenants set forth in
Sections 6.01, 6.02, and 6.03) cause each Guarantor to:



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     6.01 Financial Statements. Deliver to the Administrative Agent with sufficient copies for
distribution to each Lender, and the Administrative Agent shall deliver such copies promptly to
each Lender after the Administrative Agent’s receipt:




          (a) as soon as available, but in any event by the date on which consolidated financial
statements for such period are required to be delivered to the SEC under the Securities
Laws (without regard to any extensions of such date permitted by the Securities Laws for
which any special application is required) (and if the Borrower does not have to deliver
such consolidated financial statements to the SEC under the Securities Laws, then as soon
as available, but in any event within 90 days after the end of the fiscal year of the
Borrower), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of each fiscal year, and the related consolidated statements of income from operations,
shareholders’ equity and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP, such consolidated statements to be audited and
accompanied by (i) a report and opinion of a Registered Public Accounting Firm of
nationally recognized standing reasonably acceptable to the Required Lenders (which shall
include but not be limited to Deloitte & Touche, LLP), which report and opinion shall be
prepared in accordance with generally accepted auditing standards and applicable Securities
Laws and shall not be subject to any “going concern” or like qualification or exception or
any qualification or exception as to the scope of such audit or with respect to the absence
of any material misstatement; and




          (b) as soon as available, but in any event by the date on which consolidated financial
statements for such period are required to be delivered to the SEC under the Securities
Laws (without regard to any extensions of such date permitted by the Securities Laws for
which any special application is required) (and if the Borrower does not have to deliver
such consolidated financial statements to the SEC under the Securities Laws, then as soon
as available, but in any event within 45 days after the end of the first three fiscal
quarters of each fiscal year of the Borrower), a consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of the fiscal quarter and as at the end of the most
recently completed fiscal year, the related consolidated statements of income from
operations for such fiscal quarter and for the portion of the Borrower’s fiscal year then
ended, setting forth in comparative form the figures for the corresponding fiscal quarter
of the previous fiscal year and the corresponding portion of the previous fiscal year, and
the related consolidated statements of cash flows for the portion of the Borrower’s fiscal
year then ended setting forth in comparative form the figures for the corresponding portion
of the previous fiscal year, all in reasonable detail, such consolidated statements to be
certified by the chief executive officer, chief financial officer, treasurer or controller
of the Borrower as fairly presenting the financial condition, results of operations,
shareholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with
GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.



     As to any information contained in materials furnished pursuant to Section 6.02(c),
the Borrower shall not be separately required to furnish such information under subsections
(a) or (b)



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above, and to the extent that the Borrower has filed a Form 10K or Form 10Q
for the respective financial period with the SEC, it shall be deemed to have satisfied
subsections (a) and (b) above.




     6.02 Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in
form and detail satisfactory to the Administrative Agent and the Required Lenders:




          (a) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b) (commencing with the delivery of the financial
statements for the fiscal quarter ended January 31, 2011), a duly completed Compliance
Certificate signed by the chief executive officer, chief financial officer, treasurer or
controller of the Borrower;




          (b) promptly after any request by the Administrative Agent or any Lender, copies of
any detailed audit reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of the Borrower by independent
accountants in connection with the accounts or books of the Borrower or any Subsidiary, or
any audit of any of them;




          (c) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the
Borrower, and copies of all annual, regular, periodic and special reports and registration
statements which the Borrower may file or be required to file with the SEC under Sections
13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be
delivered to the Administrative Agent pursuant hereto;




          (d) promptly after the furnishing thereof, copies of any statement or report furnished
to any holder of debt securities of the Borrower or any Subsidiary thereof pursuant to the
terms of any indenture, loan or credit or similar agreement and not otherwise required to
be furnished to the Lenders pursuant to Section 6.01 or any other subsection of
this Section 6.02;




          (e) promptly, and in any event within five Business Days after receipt thereof by any
Loan Party or any Subsidiary thereof, copies of each notice or other correspondence
received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction)
concerning any investigation or possible investigation or other inquiry (excluding SEC
comment letter) by such agency regarding financial or other operational results of any Loan
Party or any Subsidiary thereof; and




          (f) promptly, such additional information regarding the business, financial or
corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably
request.



     Documents required to be delivered pursuant to Sections 6.01(a) or (b) or
Sections 6.02(c) or (d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed
to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link
thereto on the Borrower’s website on the Internet at the website address listed on Schedule
10.02; or (ii)



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on which such documents are posted on the Borrower’s behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: upon the request of the Administrative Agent, (i) the Borrower shall deliver paper copies of
such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and
each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to
the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Except for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents referred to above, and in
any event shall have no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Borrower or its securities) (each, a “Public
Lender”). The Borrower hereby agrees that (w) all Borrower Materials that are to be made available
to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall
mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking
Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative
Agent, the Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as not
containing any material non-public information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be treated as set
forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be
made available through a portion of the Platform designated “Public Investor”; and (z) the
Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated
“Public Investor”. Notwithstanding the foregoing, the Borrower shall be under no obligation to
mark any Borrower Materials “PUBLIC”.



     6.03 Notices. Promptly, but in any event, within five (5) days of the Borrower becoming aware
thereof, notify the Administrative Agent and each Lender:




          (a) of the occurrence of any Default;




          (b) of any matter that has resulted or would reasonably be expected to result in a
Material Adverse Effect, including (i) any dispute, litigation, investigation, proceeding
or suspension between the Borrower or any Subsidiary and any Governmental Authority; or
(ii) the commencement of, or any material development in,
any litigation or proceeding affecting the Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws;



62









 






          (c) of the occurrence of any ERISA Event;




          (d) of any material change in accounting policies or financial reporting practices by
the Borrower or any Subsidiary; and




          (e) of any public announcement by Moody’s or S&P of any change in a Debt Rating.



     Each notice pursuant to this Section 6.03 (other than Section 6.03(e)) shall
be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken and proposes to take
with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan Document that have been
breached.



     6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its obligations and liabilities, including all federal, state and other material tax liabilities,
assessments and governmental charges or levies upon it or its properties or assets, unless the same
are being contested in good faith by appropriate proceedings diligently conducted and adequate
reserves in accordance with GAAP are being maintained by the Borrower or such Subsidiary.



     6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence under the Laws of the jurisdiction of its organization except in a
transaction permitted by Sections 7.02 or 7.03; (b) preserve, renew and maintain in
full force and effect its good standing under the Laws of the jurisdiction of its origination,
except where the failure to do so would not reasonably be expected to result in a Material Adverse
Effect; (c) take all reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except to the extent that
failure to do so would not reasonably be expected to have a Material Adverse Effect; and (d)
preserve or renew all of its registered patents, trademarks, trade names and service marks, the
non-preservation of which would reasonably be expected to have a Material Adverse Effect.



     6.06 Maintenance of Properties. Maintain, preserve and protect all of its material properties
and equipment necessary in the operation of its business in good working order and reasonably good
condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals
and replacements thereof, except in the case of both (a) and (b) above, where the failure to do so
would not reasonably be expected to have a Material Adverse Effect.



     6.07 Maintenance of Insurance. Maintain insurance (including self-insurance) with respect to
its properties and business as necessary and appropriate in the customary business practice in the
industry of the Borrower.



     6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its business or
property, except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings diligently
conducted; or (b)



63









 




the failure to comply therewith would not reasonably be expected to have a
Material Adverse Effect.




     6.09 Books and Records. Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Borrower or such Subsidiary, as
the case may be.



     6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants, all at the expense of the Administrative Agent or such Lender, as applicable, and at
such reasonable times during normal business hours and upon reasonable advance notice to the
Borrower, but not more frequently than once per every twelve (12) month period; provided,
however, that when an Event of Default exists the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any of the foregoing at
the expense of the Borrower at any time during normal business hours and without advance notice as
often as may be reasonably requested.



     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for (a) general working
capital needs including commercial paper back-up, capital expenditures and permitted acquisitions,
investments in joint ventures and other equity investments, (b) subject to the proviso below, the
purchase or other acquisition by the Borrower of shares of its capital stock and related preferred
stock purchase rights, and (c) other lawful corporate purposes, other than, directly or indirectly,
(i) for a purpose in contravention of any Law or of any Loan Document, (ii) to purchase or carry
Margin Stock, (iii) to repay or otherwise refinance indebtedness of the Borrower or others incurred
to purchase or carry Margin Stock, (iv) to extend credit for the purpose of purchasing or carrying
any Margin Stock, or (v) to acquire any security in any transaction that is subject to Sections 13
or 14 of the Exchange Act; provided, however, that notwithstanding clauses (ii) through (v)
above, the Borrower may use proceeds of Loans as described in clause (b) above so long as the
Borrower is in compliance at such time with Section 5.14.



     6.12 Guarantors. Notify the Administrative Agent at the time that any Person becomes a
Regulated Entity, and promptly thereafter (and in any event within 60 days), cause such Person to:




          (a) in the case of the first Regulated Entity becoming a Guarantor, a Guaranty and
thereafter for each additional Regulated Entity, a Guaranty Joinder Agreement duly executed
by such Regulated Entity;




          (b) an opinion of counsel to each Person executing the Guaranty or Guaranty Joinder
Agreement pursuant to this Section 6.12 dated as of the date of delivery of such
applicable agreements and other Loan Documents provided for in this Section 6.12
and addressed to the Administrative Agent and the Lenders, in form and substance
reasonably acceptable to the Administrative Agent, each of which opinions may be in



64









 






form
and substance, including assumptions and qualifications contained therein, substantially
similar to those opinions of counsel delivered pursuant to Section 4.01(a); and




          (c) with respect to each Person executing any Guaranty or Guaranty Joinder Agreement
pursuant to this Section 6.12, current copies of the Organization Documents of each
such Person, minutes of duly called and conducted meetings (or duly effected consent
actions) of the board of directors, partners, or appropriate committees thereof (and, if
required by such Organization Documents or applicable law, of the shareholders, members or
partners) of such Person authorizing the actions and the execution and delivery of
documents described in this Section 6.12, all certified by the applicable
Governmental Authority or appropriate officer as the Administrative Agent may elect.



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Borrower shall not, nor shall it permit any Guarantor to, directly or indirectly:



     7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following:




          (a) Liens pursuant to any Loan Document;




          (b) Liens existing on the date hereof and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby is
not changed (except for proceeds of such property), and (ii) the direct or any contingent
obligor with respect thereto is not changed;




          (c) Liens for taxes not yet due or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP;




          (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business which are not overdue for a period of more
than 30 days or which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained on the books
of the applicable Person;




          (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any
Lien imposed by ERISA;




          (f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;



65









 






          (g) easements, rights-of-way, restrictions and other similar encumbrances affecting
real property which, in the aggregate, are not substantial in amount, and which do not in
any case materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person;




          (h) Liens securing judgments for the payment of money not constituting an Event of
Default under Section 8.01(h);




          (i) leases or subleases granted to others in the ordinary course of business not
interfering in any material respect with the business of the applicable Person;




          (j) any interest of title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign jurisdictions)
relating to, leases permitted by this Agreement;




          (k) Liens deemed to exist in connection with repurchase agreements;




          (l) normal and customary rights of setoff upon deposits of cash in favor of banks or
other depository institutions;




          (m) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection;




          (n) Liens existing on any asset or property prior to the acquisition thereof by any
Loan Party or existing on any asset or property of any Person that becomes a Guarantor
prior to the time such Person becomes a Guarantor;




          (o) Liens on property securing purchase money indebtedness (including capital lease
obligations, provided that (i) such Liens attach to such property within 90 days
after the acquisition of such property, (ii) such Liens secure only the payment of the
purchase money Indebtedness (and refinancings, renewals or extensions thereof) and (iii)
such Liens attach only to the property subject to the purchase money Indebtedness and do
not encumber any other property of any Loan Party;




          (p) Liens created or deemed to exist as a result of (i) a substantially non-recourse
assignment, sale or other transfer of receivables in connection with one or more
third-party financings (or Guarantee of such financing) of energy projects developed by the
Borrower or any Guarantor (or any subcontractor of the Borrower or any Guarantor) and (ii)
Liens on such energy projects in favor of one or more providers of such third-party
financing (including, without limitation, with respect to each of the foregoing clauses
(i) and (ii), projects developed for agencies, departments and
instrumentalities of the United States government, any state, county, municipal government
or other political subdivision, any university or any college through utility energy
services contracts); and




          (q) Liens not permitted by subsections (a) through (p) above if at the
time of, and after giving effect to, the creation or assumption of any such Lien, the
aggregate amount of all Indebtedness of the Loan Parties secured by all such Liens not so
permitted by subsections (a) through (p) above does not exceed 10% of
Consolidated Total Assets.



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     7.02 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, or discontinue or eliminate, a line of business; provided, that the foregoing
limitation on the sale, lease or other transfer of assets and on the discontinuance or elimination
of a line of business shall not prohibit, at any time, a transfer of assets or the discontinuance
or elimination of a line of business (in a single transaction or a series of related transactions)
to the extent that any such Disposition would not cause the aggregate value of all assets Disposed
of (excluding the sale, lease or other transfer of assets permitted under subsection (c) of
this Section), after the Closing Date to exceed $75,000,000, and provided, further,
that so long as no Default exists or would result therefrom:




          (a) the Borrower may merge with another Person if (i) such Person is organized under
the laws of the United States of America or one of its states, and (ii) the Borrower is the
surviving corporation;




          (b) any Guarantor may merge with (i) the Borrower, provided that the Borrower
shall be the continuing or surviving Person, or (ii) any one or more other Guarantors; and




          (c) any Loan Party may Dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or to another Guarantor.



     7.03 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Borrower and its Subsidiaries on the date
hereof or any business substantially related or incidental thereto.



     7.04 Transactions with Affiliates. Enter into any transaction of any kind (other than this
Agreement and any other Loan Document) with any Affiliate of the Borrower, whether or not in the
ordinary course of business, other than on fair and reasonable terms substantially as favorable to
the Borrower or such Guarantor as would be obtainable by the Borrower or such Guarantor at the time
in a comparable arm’s length transaction with a Person other than an Affiliate, provided that the
foregoing restriction shall not apply to transactions between or among the Borrower and any
Guarantor or between and among any Guarantors.



     7.05 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to the Borrower or any Guarantor or to otherwise transfer property to the Borrower or any
Guarantor, (ii) of any Regulated Entity to Guarantee the Indebtedness of the Borrower or (iii) of
the Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on property of
such Person except, with respect to clause (iii) above, for (1) any document or instrument
governing purchase money Indebtedness, provided that any such restriction
contained therein relates only to the asset or assets constructed or acquired in connection
therewith, (2) the Medium Term Notes Indenture, the Senior Note Agreement and any other agreement
or indenture providing for the issuance of senior indebtedness on parity with the Obligations, (3)
any Lien permitted by Section 7.01 or any document or instrument governing any such Lien,
provided that any such restriction contained therein relates only to the asset or



67









 




assets
subject to such Lien, and (4) customary restrictions and conditions contained in any agreement
relating to the sale of any property permitted under Section 7.03 pending the consummation
of such sale; or (b) (except for the Medium Term Notes Indenture, the Senior Note Agreement and any
other agreement or indenture providing for the issuance of senior indebtedness on parity with the
Obligations) requires the grant of a Lien to secure an obligation of such Person if a Lien is
granted to secure another obligation of such Person.




     7.06 Ratio of Consolidated Funded Indebtedness to Total Capitalization. Permit the ratio of
Consolidated Funded Indebtedness to Total Capitalization to exceed 0.70 to 1.00 at any time.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:




          (a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when
and as required to be paid herein, any amount of principal of any Loan or any L/C
Obligation, or (ii) within three days after the same becomes due, any interest on any Loan
or on any L/C Obligation, or any fee due hereunder, or (iii) within five days after the
same becomes due, any other amount payable hereunder or under any other Loan Document; or




          (b) Specific Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Sections 6.01, 6.02 (within five
days of the date when due, in the case of Sections 6.02(a)), 6.03,
6.05(a), 6.10, 6.11 or 6.12 or Article VII, or any
Guarantor fails to perform or observe any term, covenant or agreement contained in the
Guaranty; or




          (c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsections (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such failure
continues for 30 days after the Borrower becoming aware thereof or having received notice
thereof; or




          (d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the Borrower or
any other Loan Party herein, in any other Loan Document, or in any document delivered
pursuant to this Agreement or any other Loan Document shall be incorrect or misleading when
made or deemed made; or




          (e) Cross-Default. (i) Any Loan Party (A) fails to make any payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in
respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more




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than the Threshold Amount, or (B) other than payment obligations which are
addressed in the foregoing subsection (i)(A), (1) fails to observe or perform any
other agreement or condition relating to any such Indebtedness or Guarantee referenced in
the foregoing subsection (i)(A) or contained in any instrument or agreement
evidencing, securing or relating thereto, or (2) any other event occurs, the effect of
which default or other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee referenced in the
foregoing subsection (i)(A) (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased
or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or
redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs
under any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which any Loan Party
is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as
so defined) under such Swap Contract as to which the Borrower or any Subsidiary is an
Affected Party (as so defined) and, in either event (as described in the foregoing
subsections (ii)(A) or (ii)(B)), the Swap Termination Value owed by the
Borrower or such Subsidiary as a result thereof is greater than the Threshold Amount; or




     (f) Insolvency Proceedings, Etc. Any Loan Party institutes or consents to the
institution of any proceeding under any Debtor Relief Law, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for
all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or
consent of such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or
to all or any material part of its property is instituted without the consent of such
Person and continues undismissed or unstayed for 60 calendar days, or an order for relief
is entered in any such proceeding; or




     (g) Inability to Pay Debts; Attachment. (i) Any Loan Party becomes unable or
admits in writing its inability or fails generally to pay its debts as they become due, or
(ii) any writ or warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or




     (h) Judgments. There is entered against any Loan Party (i) one or more final
judgments or orders for the payment of money in an aggregate amount (as to all such
judgments or orders) exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor upon such judgment
or order, or (B) there is a period of 10 consecutive days during which a stay of



69









 






enforcement of such judgment, by reason of a pending appeal or otherwise, is not in
effect; or




     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or would reasonably be expected to result in
liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan
or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower
or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold
Amount; or




     (j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full force and
effect; or any Loan Party contests in any manner the validity or enforceability of any Loan
Document; or any Loan Party denies that it has any or further liability or obligation under
any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or




     (k) Change of Control. There occurs any Change of Control.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:




     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;




     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by the Borrower;




     (c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount
equal to the then Outstanding Amount thereof); and




     (d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and
remedies available to it, the Lenders and the L/C Issuer under the Loan Documents;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall






70









 







automatically become effective, in each case without further act of the Administrative Agent or any
Lender.




     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall be applied by
the Administrative Agent in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer (including fees and time charges for attorneys who may be employees of any
Lender or the L/C Issuer) and amounts payable under Article III), ratably among them in
proportion to the respective amounts described in this clause Second payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer in proportion to the respective amounts described in this
clause Third payable to them;



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Fourth held by them;



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



     Sixth, to payment of Obligations consisting of liabilities under any Related Credit
Arrangement with any Lender or any Affiliate of a Lender party to a Related Credit Arrangement and
as to which the Agent has received notice of the amounts owed thereunder from the applicable Lender
or any Affiliate of a Lender party to a Related Credit Arrangement, such payments under this clause
Sixth to be allocated on a pro rata basis according to such amounts owed as to which the
Agent has received such notice; and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.


Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral
after all






71









 







Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.




ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. Each of the Lenders and the L/C Issuer hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and the Borrower shall not have rights as a third party beneficiary of any of such
provisions, provided the foregoing provisions are not intended to limit the rights granted to the
Borrower under this Article as a primary party of interest.



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



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




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




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




     (c) shall not, 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



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or obtained by the Person serving as the Administrative Agent or any of its Affiliates
in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.



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



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



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



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     9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 10.04 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.



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



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and



74









 




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




     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Book
Manager or the Arrangers listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are
owing and unpaid and to file such other documents as may be necessary or advisable in order
to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances of the
Lenders, the L/C Issuer and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.03(h) and (i), 2.09 and 10.04) allowed in
such judicial proceeding; and




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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.




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



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     9.10 Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any Guarantor from its
obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release any Guarantor from its obligations under
the Guaranty pursuant to this Section 9.10.



ARTICLE X.

MISCELLANEOUS




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




     (a) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;




     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of such Lender;




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




     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or
L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section
10.01) any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be necessary (i) to
amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay
interest or Letter of Credit Fees at the Default Rate or (ii) to amend any financial
covenant hereunder (or any defined term used therein) even if the effect of such amendment
would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee
payable hereunder;




     (e) change Section 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of each
Lender;



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




     (g) release all or substantially all of the value of the Guaranty without the written
consent of each Lender;


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; and (iv) each Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder (and any amendment, waiver or consent which by its terms requires the consent of all
Lenders or each affected Lender may be effected with the consent of the applicable Lenders other
than Defaulting Lenders), except that the Commitment of any Defaulting Lender may not be increased
or extended without the consent of such Lender.




     10.02 Notices; Effectiveness; Electronic Communication.




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




     (i) if to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and




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



     Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next business




77












 




day for the recipient). Notices delivered through electronic communications to the
extent provided in subsection (b) below, shall be effective as provided in such
subsection (b).





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



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




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



78









 






for indirect, special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).




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




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



     10.03 No Waiver; Cumulative Remedies. No failure by any Lender, the L/C Issuer or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder 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.




10.04 Expenses; Indemnity; Damage Waiver.




     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including
the reasonable fees, charges and disbursements of external counsel for the Administrative
Agent), in connection with the syndication of the credit facilities provided for herein,
the preparation, negotiation, execution, delivery and administration of this Agreement and
the other Loan Documents or any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in
connection with the issuance, amendment, renewal or extension of any



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Letter of Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer
(including the reasonable fees, charges and disbursements of any external counsel for the
Administrative Agent, any Lender or the L/C Issuer) in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in connection with the Loans
made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.




     (b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless
each Indemnitee from all fees and time charges and disbursements for attorneys who may be
employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee
by any third party or by the Borrower or any other Loan Party arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the performance by
the parties hereto of their respective obligations hereunder or thereunder, the
consummation of the transactions contemplated hereby or thereby or, in the case of the
Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any refusal by the
L/C Issuer to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Borrower or any of its Subsidiaries, or
any Environmental Liability related in any way to the Borrower or any of its Subsidiaries,
or (iv) any actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Loan Party, and regardless of
whether any Indemnitee is a party thereto; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any
other Loan Party against an Indemnitee for breach of such Indemnitee’s obligations
hereunder or under any other Loan Document, if the Borrower or such Loan Party has obtained
a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.




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



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




     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, neither any Indemnitee, on the one hand, nor the Borrower, on the other
hand, shall assert, and each hereby waives, any claim against the other, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee referred to in subsection (b) above nor the
Borrower shall be liable to the other for any damages arising from the use by unintended
recipients of any information or other materials distributed by such Indemnitee or the
Borrower through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby other than for direct or actual damages resulting from the
gross negligence or willful misconduct of such Indemnitee or the Borrower as determined by
a final and nonappealable judgment of a court of competent jurisdiction.




     (e) Payments. All amounts due under this Section shall be payable not later
than ten Business Days after demand therefor.




     (f) Survival. The agreements in this Section shall survive the resignation of
the Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any
Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the
L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Administrative
Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a)
to the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred, and (b) each Lender and



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the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable
share (without duplication) of any amount so recovered from or repaid by the Administrative Agent,
plus interest thereon from the date of such demand to the date such payment is made at a rate per
annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of
the Obligations and the termination of this Agreement.



10.06 Successors and Assigns.





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




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




     (i)
Minimum Amounts.




          (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, an affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




          (B) in any case not described in subsection (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall



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not be less than $5,000,000 unless each of the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed);
provided, however, that concurrent assignments to members of an
Assignee Group and concurrent assignments from members of an Assignee Group to a
single assignee (or to an assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met.



     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in respect of
Swing Line Loans.



     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in
addition:




          (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed, it being deemed reasonable on the part of the Borrower to withhold
consent to any assignment that would cause the Borrower to incur additional costs
under Section 3.01(a)) shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such assignment or (2) such assignment is
to a Lender, an Affiliate of a Lender or an Approved Fund;




          (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to be a
Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with
respect to such Lender;




          (C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and




          (D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment.




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Certain Persons. No such assignment shall be made (A) to
the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) to any Defaulting
Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender



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hereunder, would constitute any of the foregoing Persons described in this clause (B),
or (C) to a natural person.




     (vi) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties
to the assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright
payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously requested but not
funded by the Defaulting Lender, to each of which the applicable assignee and assignor
hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and
interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share
of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with
its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment
of rights and obligations of any Defaulting Lender hereunder shall become effective under
applicable Law without compliance with the provisions of this paragraph, then the assignee
of such interest shall be deemed to be a Defaulting Lender for all purposes of this
Agreement until such compliance occurs.



     Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Agreement 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 3.01, 3.04, 3.05,
and 10.04 with respect to facts and circumstances occurring prior to the effective date of
such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to
the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection 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
subsection (d) of this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans
and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time
(the “Register”). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all



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purposes of this Agreement, notwithstanding notice to the contrary. In addition, the
Administrative Agent shall maintain on the Register information regarding the designation,
and revocation of designation, of any Lender as a Defaulting Lender. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.




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



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to subsection (b) of this Section. To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section
10.08 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.13 as though it were a Lender.




     (e) Limitations upon Participant Rights. A Participant shall not be entitled
to receive any greater payment under Sections 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the participation
sold to such Participant. A Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 3.01 unless the Borrower is
notified of the participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 3.01(e) as though it were a Lender.




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



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




     (h) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank of America
assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank of
America may, (i) upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer
and/or (ii) upon 30 days’ notice to the Borrower, resign as Swing Line Lender. In the
event of any such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, however, that no failure by the Borrower to appoint
any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing
Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain
all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to
all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer
and all L/C Obligations with respect thereto (including the right to require the Lenders to
make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section 2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain
all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such resignation, including
the right to require the Lenders to make Base Rate Loans or fund risk participations in
outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a
successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C
Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall
issue letters of credit in substitution for the Letters of Credit, if any, outstanding at
the time of such successor or make other arrangements satisfactory to Bank of America to
effectively assume the obligations of Bank of America with respect to such Letters of
Credit.



     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent,
the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, advisors and
representatives who have a need to know to enable the disclosing party to adequately perform its
responsibilities to the Borrower and who are bound by confidentiality obligations at least as
restrictive as those contained herein (it being understood that the Administrative Agent, the
Lender or the L/C Issuer, as the case may, shall inform the Persons to whom such disclosure is made
of the confidential nature of such Information and instruct such Persons to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to



86









 




have jurisdiction over it in connection with examinations or similar oversight activities by
such entities (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to any other party hereto, (d) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, provided
that any such disclosure shall be in camera, (e) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (f) with the consent of the Borrower or (g) to the
extent such Information (x) is or becomes publicly available other than as a result of a breach of
this Section or other wrongful act of a recipient or (y) is or becomes available to the
Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower and not known to have been obtained or
derived in contravention of any confidentiality obligation in favor of Borrower or any Subsidiary.




     Each of the Administrative Agent, the Lenders and the L/C Issuer may also disclose Information
to the extent required or requested by law, government regulation, subpoena, order or request
issued by a court of competent jurisdiction or by a judicial, administrative, legislative or
regulatory body or committee, deposition or similar process, provided that such party will, except
as prohibited by law, use reasonable efforts to give prior notice of the proposed disclosure to
Borrower. Borrower will be entitled to take those actions, it deems necessary or appropriate,
including seeking a protective order, and such disclosing party shall cooperate with Borrower, at
Borrower’s expense, in connection with those actions. In the event that such protective order or
other remedy is not obtained, or that Borrower does not waive compliance with the provisions
hereof, such disclosing party agrees to furnish only that portion of the Information that is
required as a matter of law or otherwise deemed advisable by counsel and to cooperate, at
Borrower’s expense, with Borrower in its efforts to obtain written assurance that confidential
treatment will be accorded such information. Further, notwithstanding anything herein to the
contrary, Borrower and its Subsidiaries may disclose to any and all persons, without limitation of
any kind, the tax treatment and tax structure of any transaction entered into by the parties and
all materials of any kind (including opinions or other tax analyses) relating to such tax treatment
or tax structure.



     For purposes of this Section, “Information” means all information received from the Borrower
or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses,
other than any such information that is available to the Administrative Agent, any Lender or the
L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary from a
source other than the Borrower and not known to have been obtained or derived in contravention of
any confidentiality obligations in favor of the Borrower or any Subsidiary. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.



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     Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Borrower or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including Federal and state securities Laws.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in whatever currency) at
any time held and other obligations (in whatever currency) at any time owing by such Lender, the
L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower against any
and all of the obligations of the Borrower now or hereafter existing under this Agreement or any
other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or
the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and
although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or
office of such Lender or the L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness; provided that in the event that any Defaulting Lender shall
exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions of Section
2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other
funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y)
the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in
reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such
right of setoff. The rights of each Lender, the L/C Issuer and their respective Affiliates under
this Section are in addition to other rights and remedies (including other rights of setoff) that
such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C
Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff
and application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.



     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.



     10.10 Counterparts; Integration; Effectiveness. This Agreement and the other Loan Documents
may be executed in counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together



88









 




shall constitute a single contract. This Agreement and the other Loan Documents constitute
the entire contract among the parties relating to the subject matter hereof and supersede any and
all previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 4.01, this Agreement and the other Loan Documents shall
become effective when they shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement and any other Loan Document by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement and the other Loan Documents.




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



     10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 10.12, if and to the extent that the enforceability of any provisions in this
Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable,
then such provisions shall be deemed to be in effect only to the extent not so limited.



     10.13 Replacement of Lenders. If (i) any Lender requests compensation under Section
3.04, (ii) the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, (iii) any
Lender is a Defaulting Lender, (iv) any Lender is a Restricted Lender (as defined below), or (v)
the long-term unsecured, non-credit-enhanced corporate debt rating of any Lender is reduced below
“Baa3/BBB-” by both Moody’s and S&P (or, if only one such rating agency provides such a rating,
then if either Moody’s or S&P, as applicable, so reduces such rating), then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 10.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee procured by the
Borrower that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided that:



89









 






     (a) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 10.06(b);




     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all other
amounts);




     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter;




     (d) in the case of any such assignment by a Restricted Lender, the assignee must have
approved in writing the substance of the amendment, waiver or consent which caused the
assignor to be a Restricted Lender; and




     (e) such assignment does not conflict with applicable Laws.



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



     For the purposes of this Section 10.13, a “Restricted Lender” means a Lender
that fails to approve an amendment, waiver or consent requested by the Loan Parties pursuant to
Section 10.01 that has received the written approval of not less than the Required Lenders
but also requires the approval of such Lender.



     10.14 Governing Law; Jurisdiction; Etc.




     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA.




     (b) SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF
THE COURTS OF THE STATE OF NORTH CAROLINA SITTING IN MECKLENBURG COUNTY AND OF THE UNITED
STATES DISTRICT COURT OF THE WESTERN DISTRICT OF NORTH CAROLINA, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NORTH CAROLINA STATE



90









 






COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN
DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER
MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.




     (c) WAIVER OF VENUE. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.




     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW.



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



     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby, the Borrower acknowledges and agrees that: (i) the credit



91









 




facility provided for hereunder and any related arranging or other services in connection
therewith (including in connection with any amendment, waiver or other modification hereof or of
any other Loan Document) are an arm’s-length commercial transaction between the Borrower and its
Affiliates, on the one hand, and the Administrative Agent and the Arrangers, on the other hand, the
Borrower is capable of evaluating and understanding and understands and accepts the terms, risks
and conditions of the transactions contemplated hereby and by the other Loan Documents (including
any amendment, waiver or other modification thereof or thereof); (ii) in connection with the
process leading to such transaction, each of the Administrative Agent and the Arrangers is and has
been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the
Borrower or any of its Affiliates, stockholders, creditors or employees or any other Person; (iii)
neither the Administrative Agent nor any Arranger has assumed or will assume an advisory, agency or
fiduciary responsibility in favor of the Borrower with respect to any of the transactions
contemplated hereby or the process leading thereto, including with respect to any amendment, waiver
or other modification hereof or of any other Loan Document (irrespective of whether the
Administrative Agent or any Arranger has advised or is currently advising the Borrower or any of
its Affiliates on other matters) and neither the Administrative Agent nor any Arranger has any
obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv)
the Administrative Agent and the Arrangers and their respective Affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of the Borrower and its
Affiliates, and neither the Administrative Agent nor any Arranger has any obligation to disclose
any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the
Administrative Agent and the Arrangers have not provided and will not provide any legal,
accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby
(including any amendment, waiver or other modification hereof or of any other Loan Document) and
the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it
has deemed appropriate. The Borrower hereby waives and releases, to the fullest extent permitted
by law, any claims that it may have against the Administrative Agent and the Arrangers with respect
to any breach or alleged breach of agency or fiduciary duty.




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



92









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	PIEDMONT NATURAL GAS COMPANY, INC.

 	 
	 	By:  	/s/ Robert O. Pritchard
 	 
	 	 	Name:  	Robert O. Pritchard 	 
	 	 	Title:  	Vice President, Treasurer and Chief Risk

Officer 	 
	 
	 	BANK OF AMERICA, N.A., as

Administrative Agent

 	 
	 	By:  	/s/  Anne Zeschke
 	 
	 	 	Name:  	Anne Zeschke 	 
	 	 	Title:  	Vice President 	 
	 
	 	BANK OF AMERICA, N.A., as a Lender, L/C 

Issuer and Swing Line Lender

 	 
	 	By:  	/s/ Scott K. Mitchell
 	 
	 	 	Name:  	Scott K. Mitchell 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	BRANCH BANKING AND TRUST COMPANY

 	 
	 	By:  	/s/ H. Wright Uzzell, Jr.
 	 
	 	 	Name:  	H. Wright Uzzell, Jr. 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	JPMORGAN CHASE BANK, N.A.

 	 
	 	By:  	/s/ Helen D. Davis
 	 
	 	 	Name:  	Helen D. Davis 	 
	 	 	Title:  	Authorized Officer 	 
	 



Piedmont Natural Gas Co., Inc.

CREDIT AGREEMENT

Signature Page



 









 





	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Jessica L. Fabrizi
 	 
	 	 	Name:  	Jessica L. Fabrizi 	 
	 	 	Title:  	Assistant Vice President 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Eric J. Cosgrove
 	 
	 	 	Name:  	Eric J. Cosgrove 	 
	 	 	Title:  	Vice President 	 
	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Allison Newman
 	 
	 	 	Name:  	Allison Newman 	 
	 	 	Title:  	Director 	 
	 



Piedmont Natural Gas Co., Inc.

CREDIT AGREEMENT

Signature Page




 











 





SCHEDULE 2.01




COMMITMENTS

AND APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 
	Lender	 	Commitment	 	 	Percentage	 
	Bank of America, N.A.
	 	$	155,000,000.00	 	 	 	23.846153846	%
	Banking Branch and Trust Company
	 	$	155,000,000.00	 	 	 	23.846153846	%
	U.S. Bank National Association
	 	$	85,000,000.00	 	 	 	13.076923077	%
	JPMorgan Chase Bank, N.A.
	 	$	85,000,000.00	 	 	 	13.076923077	%
	PNC Bank, National Association
	 	$	85,000,000.00	 	 	 	13.076923077	%
	Wells Fargo Bank, National Association
	 	$	85,000,000.00	 	 	 	13.076923077	%
	 
	 	 	 	 	 	 
	Total
	 	$	650,000,000.00	 	 	 	100.000000000	%






S-1









 





SCHEDULE 4.01




EXISTING CREDIT FACILITIES

TO BE TERMINATED ON THE CLOSING DATE



1. Credit Agreement dated as of April 25, 2006 by and among the Borrower, the lenders party thereto
from time to time and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer thereunder, as amended, modified, supplemented, restated and/or replaced from time to time.










S-2









 








SCHEDULE 5.13




SUBSIDIARIES AND

OTHER EQUITY INVESTMENTS



Part (a). Subsidiaries.




(i) Direct Subsidiaries

          Piedmont Energy Partners, Inc.

          Piedmont Hardy Storage Company, LLC

          Piedmont ENCNG Company, LLC




(ii) Indirect Subsidiaries

          Piedmont Energy Company

          Piedmont Interstate Pipeline Company

          Piedmont Intrastate Pipeline Company

          Piedmont Propane Company

          PNG Energy Services, LLC



Part (b). Other Equity Investments.




          SouthStar Energy Services, LLC

          Pine Needle LNG Company, LLC

          Cardinal Pipeline Company, LLC

          Hardy Storage Company, LLC




S-3









 





SCHEDULE 7.01




EXISTING LIENS



The Borrower and its Subsidiaries are lessees under various leases which the Borrower anticipates
should be construed as operating leases. If so construed, the assets subject to such leases should
be the property of the applicable lessors thereunder, and the interests of such lessors in such
assets should not constitute a Lien granted by the Borrower or any of its Subsidiaries.
Notwithstanding the foregoing, the Borrower has determined to disclose the above-described leases
in an abundance of caution.




	 	 	 	 	 
	 	 	Future Payments	 
	Lease Description	 	Fiscal Year 2010 — Thereafter	 
	Real Property
	 	$	18,948,852.70	 
	IS Hardware Leases (includes leases
with Winthrop Resources Corporation
or its assignees in connection with
which UCC financing statements have
been filed)
	 	 	851,808.00	 
	Strategic Sourcing
	 	 	404,600.00	 
	Exxon Lease
	 	 	3,169,833.76	 
	 
	 	 	 
	Total
	 	$	23,375,094.46	 






S-4









 






SCHEDULE 10.02




ADMINISTRATIVE AGENT’S OFFICE;

CERTAIN ADDRESSES FOR NOTICES




PIEDMONT NATURAL GAS COMPANY, INC.:




Primary Contact:




PIEDMONT NATURAL GAS COMPANY, INC.

Office of the Treasurer

4720 Piedmont Row Drive

Charlotte, North Carolina 28210

Attention: Robert Pritchard

Telephone: 704.731.4332

Telecopier: 704.731.4097

e-mail: rob.pritchard@piedmontng.com

website address: www.piedmontng.com

U.S. Taxpayer Identification Number: 56-0556998




Secondary:




PIEDMONT NATURAL GAS COMPANY, INC.

Office of General Counsel

4720 Piedmont Row Drive

Charlotte, North Carolina 28210

Attention: Judy Z. Mayo

Telephone: 704.731.4308

Telecopier: 704.365.8515

e-mail: judy.mayo@piedmontng.com

website address: www.piedmontng.com

U.S. Taxpayer Identification Number: 56-0556998




ADMINISTRATIVE AGENT:




Administrative Agent’s Office

(for payments and Requests for Credit Extensions):

Bank of America, N.A.

101 North Tryon Street

Mail Code: NC1-001-04-39

Charlotte, NC 28255

Attention: Nilesh Patel

Telephone: 980.386.5094

Telecopier: 704.719.8870

Electronic Mail: npatel@baml.com




S-5









 





ABA# 026009593

Bank of America New York, NY

Account # 136-621-225-0600

Account Name: Corporate Credit Services, Charlotte, NC

Ref: Piedmont Natural Gas




Other Notices as Administrative Agent:

Bank of America, N.A.

Agency Management

135 South LaSalle Street

Mail Code: IL4-135-05-41

Chicago, IL 60603

Attention: Laura Call

Telephone: 312.828.3559

Telecopier: 877.207.2883

Electronic Mail: laura.call@baml.com




L/C ISSUER:




Bank of America, N.A.

Trade Operations

1 Fleet Way

Mail Code: PA6-580-02-30

Scranton, PA 18507

Attention: Alfonso Malave

Telephone: 570.330.4212

Telecopier: 570.330.4186

Electronic Mail: Alfonzo.malave@baml.com




SWING LINE LENDER:




Bank of America, N.A.

101 North Tryon Street

Mail Code: NC1-001-04-39

Charlotte, NC 28255

Attention: Nilesh Patel

Telephone: 980.386.5094

Telecopier: 704.719.8870

Electronic Mail: npatel@baml.com

ABA# 026009593

Bank of America New York, NY

Account # 136-621-225-0600

Account Name: Corporate Credit Services, Charlotte, NC

Ref: Piedmont Natural Gas




S-6









 





EXHIBIT A




FORM OF REVOLVING LOAN NOTICE




Date: ___________, _____



To: Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of January 25, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among
Piedmont Natural Gas Company, Inc., a North Carolina corporation (the “Borrower”), the
Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender.



     The undersigned hereby requests (select one):



     o A Borrowing of Revolving Loans



     o A conversion or continuation of Revolving Loans



     1. On                                            
        (a Business Day).



     2. In the amount of $             
                 .



     3. Comprised of                
               .

               [Type of Revolving Loan requested]



     4. For Eurodollar Rate Loans: with an Interest Period of ______ months.



     The Revolving Borrowing, if any, requested herein complies with the proviso to the first
sentence of Section 2.01 of the Agreement.



	 	 	 	 	 
	 	PIEDMONT NATURAL GAS COMPANY, INC.

 	 
	 	By: 	 	 
	 	 	Name: 	 	 
	 	 	Title: 	 	 
	 



Form of Committed Loan Notice



A-1




 









 






EXHIBIT B




FORM OF SWING LINE LOAN NOTICE




Date: ___________, _____





			
	To:	 	Bank of America, N.A., as Swing Line Lender


Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of January 25, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among
Piedmont Natural Gas Company, Inc., a North Carolina corporation (the “Borrower”), the
Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender.



     The undersigned hereby requests a Swing Line Loan:



     1. On         
                             
              (a Business Day).



     2. In the amount of $                    .



     The Swing Line Borrowing requested herein complies with the requirements of the provisos to
the first sentence of Section 2.04(a) of the Agreement.



	 	 	 	 	 
	 	PIEDMONT NATURAL GAS COMPANY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Form of Swing Line Loan Notice

B-1





 









 





EXHIBIT C




FORM OF NOTE



                
         





     FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
_____________________ or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time
to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of January
25, 2011 (as amended, restated, extended, supplemented or otherwise modified in writing from time
to time, the “Agreement;” the terms defined therein being used herein as therein defined),
among the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender.



     The Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. Except as otherwise provided in Section 2.04(f) of the
Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to
the Administrative Agent for the account of the Lender in Dollars in immediately available funds at
the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such
unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per annum rate set forth
in the Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. This Note is also entitled to the benefits of the Guaranty. Upon the occurrence and
continuation of one or more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable
all as provided in the Agreement. Loans made by the Lender shall be evidenced by one or more loan
accounts or records maintained by the Lender in the ordinary course of business. The Lender may
also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans
and payments with respect thereto.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



Form of Note

C-1




 









 




THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA.




	 	 	 	 	 
	 	PIEDMONT NATURAL GAS COMPANY, INC.

 	 
	 	By: 	 	 
	 	 	Name: 	 	 
	 	 	Title: 	 	 



Form of Note

C-2









 









 








LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of	 	 	 	 
	 	 	 	 	 	 	 	 	Principal or	 	Outstanding	 	 
	 	 	 	 	 	 	End of	 	Interest	 	Principal	 	 
	 	 	Type of	 	Amount of	 	Interest	 	Paid This	 	Balance	 	Notation
	Date	 	Loan Made	 	Loan Made	 	Period	 	Date	 	This Date	 	Made By
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 






Form of Note



C-3









 








EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                     ,



To: Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of January 25, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among
Piedmont Natural Gas Company, Inc., a North Carolina corporation (the “Borrower”), the
Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender.



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
[Chief Executive Officer][Chief Financial Officer][Treasurer][Controller] of the Borrower, and
that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative
Agent on the behalf of the Borrower, and that:



[Use following paragraph 1 for fiscal year-end financial statements; provided, if the

applicable Form 10K has been filed with the SEC, no such attachment or certification is

necessary and paragraph 1 may be omitted]



     1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of the Borrower ended as
of the above date, together with the report and opinion of an independent certified public
accountant required by such section.



[Use following paragraph 1 for fiscal quarter-end financial statements; provided, if

the applicable Form 10Q has been filed with the SEC, (a) no such attachment or certification is

necessary, (b) the first sentence of paragraph 1 may be omitted and (c) the second sentence with

the bracketed language shall be utilized as paragraph 1]




     1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the
above date. Such financial statements [contained in the Form 10Q most recently filed with the SEC]
fairly present the financial condition, results of operations and cash flows of the Borrower and
its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to
normal year-end audit adjustments and the absence of footnotes.



     2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the




Form of Compliance Certificate



D-1









 




transactions and condition (financial or otherwise) of the Borrower during the accounting
period covered by such financial statements.




     3. A review of the activities of the Borrower during such fiscal period has been made under
the supervision of the undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents, and



[select one:]



     [to the best knowledge of the undersigned, during such fiscal period the Borrower performed
and observed each covenant and condition of the Loan Documents applicable to it, and no Default has
occurred and is continuing.]



—or—



     [to the best knowledge of the undersigned, during such fiscal period the following covenants
or conditions have not been performed or observed and the following is a list of each such Default
and its nature and status:]



     4. The representations and warranties of the Borrower contained in Article V (except
for Sections 5.05(b), 5.06, 5.09, 5.11, 5.12 and
5.16) of the Agreement, and any representations and warranties of the Borrower that are
contained in any document furnished at any time thereunder or under any other Loan Documents, are
true and correct on and as of the date hereof, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true and correct as of
such earlier date, and except that for purposes of this Compliance Certificate, the representations
and warranties contained in subsection (a) of Section 5.05 of the Agreement shall
be deemed to refer to the most recent statements furnished pursuant to subsection (a) of
Section 6.01 of the Agreement, including the statements in connection with which this
Compliance Certificate is delivered.



     5. The financial covenant analyses and information set forth on Schedule 2 attached
hereto is true and accurate on and as of the date of this Certificate.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of __________, ______.



	 	 	 	 	 
	 	PIEDMONT NATURAL GAS COMPANY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




Form of Compliance Certificate







D-2









 










     For the Quarter/Year ended _________________(“Statement Date”)



SCHEDULE 2

to the Compliance Certificate

($ in 000’s)



I. Section 7.06 — Ratio of Consolidated Funded Indebtedness to Total
Capitalization.




	 	 	 

	A. Consolidated Funded Indebtedness at Statement Date:
	 	$                    
                    
	B. Total Capitalization at Statement Date:
	 	 
	1. Shareholders’ Equity at Statement Date:
	 	$                    
                    
	2. Consolidated Funded Indebtedness at Statement Date:
	 	$                    
                    
	3. Total Capitalization (Lines I.B.1 + I.B.2):
	 	$                    
                    
	C.
Ratio of Consolidated Funded Indebtedness to Total Capitalization
(Line I.A  ̧ Line
I.B.3):
	 	         
           to 1.00
	Maximum permitted:
	 	0.70 to 1.00







Form of Compliance Certificate




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EXHIBIT E




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each]1 Assignor
identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2
Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and
agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are
several and not joint.]4 Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in full.



     For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below (including, without limitation, the Letters of Credit and the Swing Line Loans
included in such facility) and (ii) to the extent permitted to be assigned under applicable law,
all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a
Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person,
whether known or unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in
any way based on or related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity
related to the rights





 




			
	1	 	For bracketed language here and elsewhere in this form
relating to the Assignor(s), if the assignment is from a single Assignor,
choose the first bracketed language. If the assignment is from multiple
Assignors, choose the second bracketed language.
	 
	2	 	For bracketed language here and elsewhere in
this form relating to the Assignee(s), if the assignment is to a single
Assignee, choose the first bracketed language. If the assignment is to
multiple Assignees, choose the second bracketed language.
	 
	3	 	Select as appropriate.
	 
	4	 	Include bracketed language if there are
either multiple Assignors or multiple Assignees.




Form of Assignment and Assumption



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and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and
assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being
referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and
assignment is without recourse to [the][any] Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by [the][any] Assignor.





	1.	 	Assignor[s]: ________________________________________
	 
	 	 	                     ________________________________________
	 
	2.	 	Assignee[s]: ________________________________________
	 
	 	 	                     ________________________________________
	 
	 	 	[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
	 
	3.	 	Borrower: Piedmont Natural Gas Company, Inc., a North Carolina corporation
	 
	4.	 	Administrative Agent: Bank of America, N.A., as the administrative agent under the
Credit Agreement
	 
	5.	 	Credit Agreement: Credit Agreement, dated as of January 25, 2011, among Piedmont
Natural Gas Company, Inc., a North Carolina corporation, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer, and Swing Line Lender
	 
	6.	 	Assigned Interest[s]:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount of	 	 	Amount of	 	 	Percentage	 	 	 	 
	 	 	 	 	 	 	Commitment	 	 	Commitment	 	 	Assigned of	 	 	CUSIP	 
	Assignor[s]5	 	Assignee[s]6	 	 	for all Lenders7	 	 	Assigned	 	 	Commitment8	 	 	Number	 
	 
	 	 	 	 	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






	 	 	[7. Trade Date: __________________]9







 




			
	5	 	List each Assignor, as appropriate.
	 
	6	 	List each Assignee, as appropriate.
	 
	7	 	Amounts in this column and in the column
immediately to the right to be adjusted by the counterparties to take into
account any payments or prepayments made between the Trade Date and the
Effective Date.
	 
	8	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.
	 
	9	 	To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.





Form of Assignment and Assumption





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Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




     The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 


[Consented to and]10 Accepted:




	 	 	 	 	 
	BANK OF AMERICA, N.A., as

     Administrative Agent

 	 
	By:  	 	 
	 	Title: 	 


[Consented to:]11




	 	 	 	 	 
	By:  	 	 
	 	Title: 	 





 




			
	10	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	11	 	To be added only if the consent of the
Borrower and/or other parties (e.g. Swing Line Lender, L/C Issuer) is required
by the terms of the Credit Agreement.





Form of Assignment and Assumption





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ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION




     1. Representations and Warranties.



     1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.



     1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
10.06(b)(iii) and (v) of the Credit Agreement (subject to such consents, if any, as may
be required under Section 10.06(b)(iii) of the Credit Agreement), (iii) from and after the
Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder
and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type
represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in
making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of
such type, (v) it has received a copy of the Credit Agreement, and has received or has been
accorded the opportunity to receive copies of the most recent financial statements delivered
pursuant to Section 6.01(a) and 6.01(b) thereof, as applicable, and such other
documents and information as it deems appropriate to make its own credit analysis and decision to
enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it
has, independently and without reliance upon the Administrative Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by
[the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the
Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.



Form of Assignment and Assumption




E-4









 








     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.



     3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of North Carolina.



Form of Assignment and Assumption




E-5









 








EXHIBIT F




FORM OF GUARANTY




GUARANTY AGREEMENT




     THIS GUARANTY AGREEMENT (this “Guaranty Agreement”), dated as of [__________, 20 ___], is made by EACH OF THE UNDERSIGNED AND EACH OTHER PERSON WHO SHALL BECOME A PARTY HERETO BY
EXECUTION OF A GUARANTY JOINDER AGREEMENT (each a “Guarantor” and collectively the
“Guarantors”) to BANK OF AMERICA, N.A., a national banking association organized and
existing under the laws of the United States, as administrative agent (in such capacity, the
“Administrative Agent”) for each of the lenders now or hereafter party to the Credit
Agreement defined below (the “Lenders”, together with the Administrative Agent and certain
other Persons parties to Related Credit Arrangements as more particularly described in Section
19 hereof, the “Beneficiaries”). All capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement.



W I T N E S S E T H:




     WHEREAS, the Beneficiaries have agreed to provide to PIEDMONT NATURAL GAS COMPANY, INC. (the
“Borrower”) certain credit facilities, including a revolving credit facility pursuant to
the terms of that certain Credit Agreement dated as of December
[   ], 2010 among the
Borrower, the Administrative Agent and the Lenders (as from time to time amended, revised,
modified, supplemented or amended and restated, the “Credit Agreement”); and



     WHEREAS, each Guarantor is, directly or indirectly, a Subsidiary of the Borrower that is a
Regulated Entity and will materially benefit from the Loans made and to be made under the Credit
Agreement; and



     WHEREAS, each Guarantor is required to enter into this Guaranty Agreement pursuant to the
terms of the Credit Agreement; and



     WHEREAS, a material part of the consideration given in connection with and as an inducement to
the execution and delivery of the Credit Agreement by the Lenders and the Administrative Agent was
the obligation of the Borrower to cause each Guarantor to enter into this Guaranty Agreement, and
the Beneficiaries are unwilling to extend and maintain the credit facilities provided under the
Loan Documents unless the Guarantors enter into this Guaranty Agreement;



     NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the
parties hereto agree as follows:



Form of Guaranty




F-1









 








     1. Guaranty. Each Guarantor hereby jointly and severally, unconditionally,
absolutely, continually and irrevocably guarantees to the Administrative Agent for the benefit of
the Beneficiaries the payment and performance in full of the Guaranteed Liabilities (as defined
below). For all purposes of this Guaranty Agreement, “Guaranteed Liabilities” means: (a)
the Borrower’s prompt payment in full, when due or declared due and at all such times, of all
Obligations and all other amounts pursuant to the terms of the Credit Agreement, the Notes, and all
other Loan Documents heretofore, now or at any time or times hereafter owing, arising, due or
payable from the Borrower to any one or more of the Beneficiaries, including principal, interest,
premiums and fees (including, but not limited to, loan fees and reasonably fees, charges and
disbursements of external counsel (“Attorneys’ Costs”)); (b) the Borrower’s prompt, full
and faithful performance, observance and discharge of each and every agreement, undertaking,
covenant and provision to be performed, observed or discharged by the Borrower under the Credit
Agreement, the Notes and all other Loan Documents; and (c) the prompt payment in full by each Loan
Party, when due or declared due and at all such times, of obligations and liabilities now or
hereafter arising under Related Credit Arrangements. The Guarantors’ obligations to the
Beneficiaries under this Guaranty Agreement are hereinafter collectively referred to as the
“Guarantors’ Obligations” and, with respect to each Guarantor individually, the
“Guarantor’s Obligations”. Notwithstanding the foregoing, the liability of each Guarantor
individually with respect to its Guarantor’s Obligations shall be limited to an aggregate amount
equal to the largest amount that would not render its obligations hereunder subject to avoidance
under Section 548 of the United States Bankruptcy Code or any comparable provisions of any
applicable state law.



     Each Guarantor agrees that it is jointly and severally, directly and primarily liable (subject
to the limitation in the immediately preceding sentence) for the Guaranteed Liabilities.



     2. Payment. If the Borrower shall default in payment or performance of any of the
Guaranteed Liabilities, whether principal, interest, premium, fees (including, but not limited to,
Attorneys’ Costs), or otherwise, when and as the same shall become due, and after expiration of any
applicable grace period, whether according to the terms of the Credit Agreement, by acceleration,
or otherwise, or upon the occurrence and during the continuance of any Event of Default under the
Credit Agreement, then any or all of the Guarantors will, upon demand thereof by the Administrative
Agent, (i) fully pay to the Administrative Agent, for the benefit of the Beneficiaries, subject to
any restriction on each Guarantor’s Obligations set forth in Section 1 hereof, an amount
equal to all the Guaranteed Liabilities then due and owing or declared or deemed to be due and
owing, including for this purpose, in the event of any Event of Default under Section
8.01(f) of the Credit Agreement (and irrespective of the applicability of any restriction on
acceleration or other action as against any other Loan Party under any Debtor Relief Laws), the
entire outstanding or accrued amount of all Obligations or (ii) perform such Guaranteed
Liabilities, as applicable. For purposes of this Section 2, the Guarantors acknowledge and
agree that “Guaranteed Liabilities” shall be deemed to include any amount (whether principal,
interest, premium, fees) which would have been accelerated in accordance with Section 8.02
of the Credit Agreement but for the fact that such acceleration could be unenforceable or not
allowable under any Debtor Relief Law.



     3. Absolute Rights and Obligations. This is a guaranty of payment and not of
collection. The Guarantors’ Obligations under this Guaranty Agreement shall be joint and



Form of Guaranty






F-2









 







several, absolute and unconditional irrespective of, and each Guarantor hereby expressly waives, to
the extent permitted by law, any defense to its obligations under this Guaranty Agreement to which
it is a party by reason of:





     (a) any lack of legality, validity or enforceability of the Credit Agreement, of any of
the Notes, of any other Loan Document, or of any other agreement or instrument creating,
providing security for, or otherwise relating to any of the Guarantors’ Obligations, any of
the Guaranteed Liabilities, or any other guaranty of any of the Guaranteed Liabilities (the
Loan Documents and all such other agreements and instruments being collectively referred to
as the “Related Agreements”);




     (b) any action taken under any of the Related Agreements, any exercise of any right or
power therein conferred, any failure or omission to enforce any right conferred thereby, or
any waiver of any covenant or condition therein provided;




     (c) any acceleration of the maturity of any of the Guaranteed Liabilities, of the
Guarantor’s Obligations of any other Guarantor, or of any other obligations or liabilities
of any Person under any of the Related Agreements;




     (d) any release, exchange, non-perfection, lapse in perfection, disposal, deterioration
in value, or impairment of any security for any of the Guaranteed Liabilities, for any of
the Guarantor’s Obligations of any Guarantor, or for any other obligations or liabilities of
any Person under any of the Related Agreements;




     (e) any dissolution of the Borrower or any Guarantor or any other party to a Related
Agreement, or the combination or consolidation of the Borrower or any Guarantor or any other
party to a Related Agreement into or with another entity or any transfer or disposition of
any assets of the Borrower or any Guarantor or any other party to a Related Agreement;




     (f) any extension (including without limitation extensions of time for payment),
renewal, amendment, restructuring or restatement of, any acceptance of late or partial
payments under, or any change in the amount of any borrowings or any credit facilities
available under, the Credit Agreement, any of the Notes or any other Loan Document or any
other Related Agreement, in whole or in part;




     (g) the existence, addition, modification, termination, reduction or impairment of
value, or release of any other guaranty (or security therefor) of the Guaranteed Liabilities
(including without limitation the Guarantor’s Obligations of any other Guarantor and
obligations arising under any other Guaranty or any other Loan Document now or hereafter in
effect);




     (h) any waiver of, forbearance or indulgence under, or other consent to any change in
or departure from any term or provision contained in the Credit Agreement, any other Loan
Document or any other Related Agreement, including without limitation any term pertaining to
the payment or performance of any of the Guaranteed Liabilities,



Form of Guaranty






F-3









 








any of the Guarantor’s Obligations of any other Guarantor, or any of the obligations or
liabilities of any party to any other Related Agreement;


     (i) 
any other circumstance whatsoever (with or without notice to or knowledge of any
Guarantor) which might in any manner or to any extent vary the risks of such Guarantor, or
might otherwise constitute a legal or equitable defense available to, or discharge of, a
surety or a guarantor, including without limitation any right to require or claim that
resort be had to the Borrower or any other Loan Party or to any collateral in respect of the
Guaranteed Liabilities or Guarantors’ Obligations, whether arising under North Carolina
General Statutes Sections 26-7 and 26-9 or otherwise.



     It is the express purpose and intent of the parties hereto that this Guaranty Agreement and
the Guarantors’ Obligations hereunder and under each Guaranty Joinder Agreement shall be absolute
and unconditional under any and all circumstances and shall not be discharged except by payment and
performance as herein provided. Except with regard to the various waivers of defenses and rights
set forth in this Guaranty Agreement, the Guarantors’ Obligations hereunder and under each Guaranty
Joinder Agreement for the Guaranteed Liabilities shall be no greater than the obligations of the
Borrower (or in the case of any Related Credit Arrangement entered into by a Loan Party other than
the Borrower, the obligations of such Loan Party) for the Guaranteed Liabilities. Except as set
forth in this Guaranty Agreement, no Guarantor waives any defense or other right.



     4. Currency and Funds of Payment. All Guarantors’ Obligations for payment will be
paid in lawful currency of the United States of America and in immediately available funds,
regardless of any law, regulation or decree now or hereafter in effect that might in any manner
affect the Guaranteed Liabilities, or the rights of any Beneficiary with respect thereto as against
the Borrower or any other Loan Party, or cause or permit to be invoked any alteration in the time,
amount or manner of payment by the Borrower or any other Loan Party of any or all of the Guaranteed
Liabilities.



     5. Events of Default. Without limiting the provisions of Section 2 hereof, in
the event that there shall occur and be continuing an Event of Default, then notwithstanding any
collateral or other security or credit support for the Guaranteed Liabilities, at the
Administrative Agent’s election and without notice thereof or demand therefor, the Guarantors’
Obligations shall immediately be and become due and payable.



     6. Subordination. Until this Guaranty Agreement is terminated in accordance with
Section 22 hereof, each Guarantor hereby unconditionally subordinates all present and
future debts, liabilities or obligations now or hereafter owing to such Guarantor (i) of the
Borrower, to the payment in full of the Guaranteed Liabilities, (ii) of every other Guarantor (an
“obligated guarantor”), to the payment in full of the Guarantors’ Obligations of such obligated
guarantor, and (iii) of each other Person now or hereafter constituting a Loan Party, to the
payment in full of the obligations of such Loan Party owing to any Beneficiary and arising under
the Loan Documents or the Related Credit Arrangements. All amounts due under such subordinated
debts, liabilities, or obligations shall, upon the occurrence and during the continuance of an
Event of Default (but not until such time that an Event of Default has occurred and is



Form of Guaranty





F-4









 







continuing), be collected and, upon request by the Administrative Agent, paid over forthwith to the
Administrative Agent for the benefit of the Beneficiaries on account of the Guaranteed Liabilities,
the Guarantors’ Obligations, or such other obligations, as applicable, and, after such request and
pending such payment, shall be held by such Guarantor as agent and bailee of the Beneficiaries
separate and apart from all other funds, property and accounts of such Guarantor.




     7. Suits. Each Guarantor from time to time shall pay to the Administrative Agent for
the benefit of the Beneficiaries, on demand, at the Administrative Agent’s Office or such other
address as the Administrative Agent shall give notice of to such Guarantor, the Guarantors’
Obligations as they become or are declared due, and in the event such payment is not made
forthwith, the Administrative Agent may proceed to suit against any one or more or all of the
Guarantors. At the Administrative Agent’s election, one or more and successive or concurrent suits
may be brought hereon by the Administrative Agent against any one or more or all of the Guarantors,
whether or not suit has been commenced against the Borrower, any other Guarantor, or any other
Person and whether or not the Beneficiaries have taken or failed to take any other action to
collect all or any portion of the Guaranteed Liabilities or have taken or failed to take any
actions against any collateral securing payment or performance of all or any portion of the
Guaranteed Liabilities, and irrespective of any event, occurrence, or condition described in
Section 3 hereof.



     8. Set-Off and Waiver. Each Guarantor waives any right to assert against any
Beneficiary as a defense, counterclaim, set-off, recoupment or cross claim in respect of its
Guarantor’s Obligations, any defense (legal or equitable) or other claim which such Guarantor may
now or at any time hereafter have against the Borrower or any or all of the Beneficiaries without
waiving any additional defenses, set-offs, counterclaims or other claims otherwise available to
such Guarantor.



     9. Waiver of Notice; Subrogation.




(a) Each Guarantor hereby waives to the extent permitted by law notice of the following
events or occurrences: (i) acceptance of this Guaranty Agreement; (ii) the Lenders’
heretofore, now or from time to time hereafter making Loans and otherwise loaning monies or
giving or extending credit to or for the benefit of the Borrower or any other Loan Party, or
otherwise entering into arrangements with any Loan Party giving rise to Guaranteed
Liabilities, whether pursuant to the Credit Agreement or the Notes or any other Loan
Document or Related Agreement or any amendments, modifications, or supplements thereto, or
replacements or extensions thereof; (iii) presentment, demand, default, non-payment, partial
payment and protest; and (iv) any other event, condition, or occurrence described in
Section 3 hereof. Each Guarantor agrees that each Beneficiary may heretofore, now
or at any time hereafter do any or all of the foregoing in such manner, upon such terms and
at such times as each Beneficiary, in its sole and absolute discretion, deems advisable,
without in any way or respect impairing, affecting, reducing or releasing such Guarantor
from its Guarantor’s Obligations, and each Guarantor hereby consents to each and all of the
foregoing events or occurrences.



Form of Guaranty






F-5









 








     (b) Each Guarantor hereby agrees that payment or performance by such Guarantor of its
Guarantor’s Obligations under this Guaranty Agreement may be enforced by the Administrative
Agent on behalf of the Beneficiaries upon demand by the Administrative Agent to such
Guarantor without the Administrative Agent being required, such Guarantor expressly waiving
to the extent permitted by law any right it may have to require the Administrative Agent, to
(i) prosecute collection or seek to enforce or resort to any remedies against the Borrower
or any other Guarantor or any other guarantor of the Guaranteed Liabilities, or (ii) seek to
enforce or resort to any remedies with respect to any security interests, Liens or
encumbrances granted to the Administrative Agent or any Lender or other party to a Related
Agreement by the Borrower, any other Guarantor or any other Person on account of the
Guaranteed Liabilities or any guaranty thereof, IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED
AND AGREED TO BY SUCH GUARANTOR THAT DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE MADE BY THE
ADMINISTRATIVE AGENT, AND THE PROVISIONS HEREOF ENFORCED BY THE ADMINISTRATIVE AGENT,
EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE
CREDIT AGREEMENT.



     (c) Each Guarantor further agrees that with respect to this Guaranty Agreement, such
Guarantor shall not exercise any of its rights of subrogation, reimbursement, contribution,
indemnity or recourse to security for the Guaranteed Liabilities until 93 days immediately
following the Facility Termination Date (as defined below) shall have elapsed without the
filing or commencement, by or against any Loan Party, of any state or federal action, suit,
petition or proceeding seeking any reorganization, liquidation or other relief or
arrangement in respect of creditors of, or the appointment of a receiver, liquidator,
trustee or conservator in respect to, such Loan Party or its assets. If an amount shall be
paid to any Guarantor on account of such rights at any time prior to termination of this
Guaranty Agreement in accordance with the provisions of Section 22 hereof, such
amount shall be held in trust for the benefit of the Beneficiaries and shall forthwith be
paid to the Administrative Agent, for the benefit of the Beneficiaries, to be credited and
applied upon the Guarantors’ Obligations, whether matured or unmatured, in accordance with
the terms of the Credit Agreement or otherwise as the Beneficiaries may elect. The
agreements in this subsection shall survive repayment of all of the Guarantors’ Obligations,
the termination or expiration of this Guaranty Agreement in any manner, including but not
limited to termination in accordance with Section 22 hereof, and occurrence of the
Facility Termination Date.


     For purposes of this Guaranty Agreement, “Facility Termination Date” means the
date as of which all of the following shall have occurred: (a) the Borrower shall have
permanently terminated the credit facilities under the Loan Documents by final payment in
full of all Outstanding Amounts, together with all accrued and unpaid interest and fees
thereon; (b) all Commitments shall have terminated or expired; (c) the obligations and
liabilities of the Borrower and each other Loan Party under all Related Credit Arrangements
shall have been fully, finally and irrevocably paid and satisfied in full and the Related
Credit Arrangements shall have expired or been terminated, or other


Form of Guaranty





F-6









 








arrangements satisfactory to the counterparties shall have been made with respect thereto;
and (d) the Borrower and each other Loan Party shall have fully, finally and irrevocably
paid and satisfied in full all of their respective obligations and liabilities arising under
the Loan Documents, including with respect to the Borrower and the Obligations (except for
future obligations consisting of continuing indemnities and other contingent Obligations of
the Borrower or any Loan Party that may be owing to any of its Related Parties or any Lender
pursuant to the Loan Documents and expressly survive termination of the Credit Agreement or
any other Loan Document).


     10. Effectiveness; Enforceability. This Guaranty Agreement shall be effective as of
the date first above written and shall continue in full force and effect until termination in
accordance with Section 22 hereof. Any claim or claims that the Beneficiaries may at any
time hereafter have against a Guarantor under this Guaranty Agreement may be asserted by the
Administrative Agent on behalf of the Beneficiaries by written notice directed to such Guarantor in
accordance with Section 24 hereof.



     11. Representations and Warranties. Each Guarantor warrants and represents to the
Administrative Agent, for the benefit of the Beneficiaries, that (a) it is duly authorized to
execute and deliver this Guaranty Agreement (or the Guaranty Joinder Agreement to which it is a
party, as applicable), and to perform its obligations under this Guaranty Agreement, (b) this
Guaranty Agreement (or the Guaranty Joinder Agreement to which it is a party, as applicable) has
been duly executed and delivered on behalf of such Guarantor by its duly authorized
representatives; (c) this Guaranty Agreement (and any Guaranty Joinder Agreement to which such
Guarantor is a party) is legal, valid, binding and enforceable against such Guarantor in accordance
with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general
equitable principles; and (d) such Guarantor’s execution, delivery and performance of this Guaranty
Agreement (and any Guaranty Joinder Agreement to which such Guarantor is a party) do not violate or
constitute a breach of (i) any of its Organization Documents, (ii) any agreement or instrument to
which such Guarantor is a party, or (iii) any Law to which it or its properties or operations is
subject.



     12. Expenses and Indemnity. Each Guarantor agrees to be jointly and severally liable
for the payment of all reasonable fees and expenses, including Attorneys’ Costs, incurred by any
Beneficiary in connection with the enforcement of this Guaranty Agreement, whether or not suit be
brought.



     13. Reinstatement. Each Guarantor agrees that this Guaranty Agreement shall continue
to be effective or be reinstated, as the case may be, at any time payment received by any
Beneficiary in respect of any Guaranteed Liabilities is rescinded or must be restored for any
reason, or is repaid by any Beneficiary in whole or in part in good faith settlement of any pending
or threatened avoidance claim.



     14. [Intentionally Omitted.]



Form of Guaranty





F-7









 








     15. Reliance. Each Guarantor represents and warrants to the Administrative Agent, for
the benefit of the Beneficiaries, that: (a) such Guarantor has adequate means to obtain on a
continuing basis (i) from the Borrower, information concerning the Loan Parties and the Loan
Parties’ financial condition and affairs and (ii) from other reliable sources, such other
information as it deems material in deciding to provide this Guaranty Agreement and any Guaranty
Joinder Agreement (“Other Information”), and has full and complete access to the Loan
Parties’ books and records and to such Other Information; (b) such Guarantor is not relying on any
Beneficiary or its or their employees, directors, agents or other representatives or Affiliates, to
provide any such information, now or in the future; (c) such Guarantor has been furnished with and
reviewed the terms of the Credit Agreement and such other Loan Documents and Related Agreements as
it has requested, is executing this Guaranty Agreement (or the Guaranty Joinder Agreement to which
it is a party, as applicable) freely and deliberately, and understands the obligations and
financial risk undertaken by providing this Guaranty Agreement (and any Guaranty Joinder
Agreement); (d) such Guarantor has relied solely on the Guarantor’s own independent investigation,
appraisal and analysis of the Borrower and the other Loan Parties, such Persons’ financial
condition and affairs, the “Other Information”, and such other matters as it deems material in
deciding to provide this Guaranty Agreement (and any Guaranty Joinder Agreement) and is fully aware
of the same; and (e) such Guarantor has not depended or relied on any Beneficiary or its or their
employees, directors, agents or other representatives or Affiliates, for any information whatsoever
concerning the Borrower or the Borrower’s financial condition and affairs or any other matters
material to such Guarantor’s decision to provide this Guaranty Agreement (and any Guaranty Joinder
Agreement), or for any counseling, guidance, or special consideration or any promise therefor with
respect to such decision. Each Guarantor agrees that no Beneficiary has any duty or responsibility
whatsoever, now or in the future, to provide to such Guarantor any information concerning the
Borrower or any other Loan Party or such Persons’ financial condition and affairs, or any Other
Information, other than as expressly provided herein, and that, if such Guarantor receives any such
information from any Beneficiary or its or their employees, directors, agents or other
representatives or Affiliates, such Guarantor will independently verify the information and will
not rely on any Beneficiary or its or their employees, directors, agents or other representatives
or Affiliates, with respect to such information.



     16. Rules of Interpretation. The rules of interpretation contained in Sections
1.02 and 1.05 of the Credit Agreement shall be applicable to this Guaranty Agreement
and each Guaranty Joinder Agreement and are hereby incorporated by reference. All representations
and warranties contained herein shall survive the delivery of documents and any extension of credit
referred to herein or guaranteed hereby.



     17. [Intentionally Omitted.]



     18. Binding Agreement; Assignment. Subject to the limitations referenced in this
Section 18 and in the Credit Agreement regarding assignment, this Guaranty Agreement, each
Guaranty Joinder Agreement and the terms, covenants and conditions hereof and thereof, shall be
binding upon and inure to the benefit of the parties hereto and thereto, and to their respective
heirs, legal representatives, successors and assigns; provided, however, that no
Guarantor shall be permitted to assign any of its rights, powers, duties or obligations under this
Guaranty



Form of Guaranty






F-8









 







Agreement, any Guaranty Joinder Agreement or any other interest herein or therein without the prior
written consent of the Administrative Agent. Without limiting the generality of the foregoing
sentence of this Section 18, any Lender may assign to one or more Persons, or grant to one
or more Persons participations in or to, all or any part of its rights and obligations under the
Credit Agreement (to the extent permitted by the Credit Agreement); and to the extent of any such
assignment or participation such other Person shall, to the fullest extent permitted by law,
thereupon become vested with all the benefits in respect thereof granted to such Lender herein or
otherwise, subject however, to the provisions of the Credit Agreement, including Article IX
thereof (concerning the Administrative Agent) and Section 10.06 thereof concerning
assignments and participations. All references herein to the Administrative Agent shall include
any successor thereof.




     19. Related Credit Arrangements. All obligations of any Loan Party under Related
Credit Arrangements to which any Lender or its Affiliates are a party shall be deemed to be
Guaranteed Liabilities, and each Lender or Affiliate of a Lender party to any such Related Credit
Arrangement shall be deemed to be a Beneficiary hereunder with respect to such Guaranteed
Liabilities; provided, however, that such obligations shall cease to be Guaranteed
Liabilities at such time, prior to the Facility Termination Date, as such Person (or Affiliate of
such Person) shall cease to be a “Lender” under the Credit Agreement.



     No Person who obtains the benefit of this Guaranty Agreement by virtue of the provisions of
this Section shall have, prior to the Facility Termination Date, any right to notice of any action
or to consent to, direct or object to any action hereunder or under any other Loan Document or
otherwise in respect of the Guarantors’ Obligations (including the release or modification of any
Guarantors’ Obligations or security therefor) other than in its capacity as a Lender and only to
the extent expressly provided in the Loan Documents. Each Beneficiary not a party to the Credit
Agreement who obtains the benefit of this Guaranty Agreement by virtue of the provisions of this
Section shall be deemed to have acknowledged and accepted the appointment of the Administrative
Agent pursuant to the terms of the Credit Agreement, and that with respect to the actions and
omissions of the Administrative Agent hereunder or otherwise relating hereto that do or may affect
such Beneficiary, the Administrative Agent and each of its Related Parties shall be entitled to all
the rights, benefits and immunities conferred under Article IX of the Credit Agreement.



     20. Severability. If any provision of this Guaranty Agreement is held to be illegal,
invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions
of this Guaranty Agreement shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to that of the
illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.



     21. Counterparts. This Guaranty Agreement may be executed in any number of
counterparts each of which when so executed and delivered shall be deemed an original, and it shall
not be necessary in making proof of this Guaranty Agreement to produce or account for more than one
such counterpart executed by the Guarantors against whom enforcement is sought.



Form of Guaranty




F-9









 







Without limiting the foregoing provisions of this Section 21, the provisions of
Section 10.10 of the Credit Agreement shall be applicable to this Guaranty Agreement.




     22. Termination. Subject to reinstatement pursuant to Section 13 hereof, this
Guaranty Agreement and each Guaranty Joinder Agreement, and all of the Guarantors’ Obligations
hereunder (excluding those Guarantors’ obligations relating to Guaranteed Liabilities that
expressly survive such termination) shall terminate on the Facility Termination Date.



     23. Remedies Cumulative; Late Payments. All remedies hereunder are cumulative and are
not exclusive of any other rights and remedies of the Administrative Agent or any other Beneficiary
provided by law or under the Credit Agreement, the other Loan Documents or other applicable
agreements or instruments. The making of the Loans and other credit extensions pursuant to the
Credit Agreement and other Related Agreements shall be conclusively presumed to have been made or
extended, respectively, in reliance upon each Guarantor’s guaranty of the Guaranteed Liabilities
pursuant to the terms hereof. Any amounts not paid when due under this Guaranty Agreement shall
bear interest at the Default Rate.



     24. Notices. Any notice required or permitted hereunder or under any Guaranty Joinder
Agreement shall be given, (a) with respect to each Guarantor, at the address of the Borrower
indicated in Schedule 10.02 of the Credit Agreement and (b) with respect to the
Administrative Agent or any other Beneficiary, at the Administrative Agent’s address indicated in
Schedule 10.02 of the Credit Agreement. All such addresses may be modified, and all such
notices shall be given and shall be effective, as provided in Section 10.02 of the Credit
Agreement for the giving and effectiveness of notices and modifications of addresses thereunder.



     25. Joinder. Each Person who shall at any time execute and deliver to the
Administrative Agent a Guaranty Joinder Agreement substantially in the form attached as Exhibit A
hereto shall thereupon irrevocably, absolutely and unconditionally become a party hereto and
obligated hereunder as a Guarantor, and all references herein and in the other Loan Documents to
the Guarantors or to the parties to this Guaranty Agreement shall be deemed to include such Person
as a Guarantor hereunder.



     26. Governing Law; Jurisdiction; Etc.




     (a) THIS GUARANTY AGREEMENT AND EACH GUARANTY JOINDER AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA.




     (b) EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NORTH CAROLINA
SITTING IN MECKLENBURG COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE WESTERN
DISTRICT OF NORTH CAROLINA, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO



Form of Guaranty





F-10









 







THIS GUARANTY AGREEMENT OR ANY GUARANTY JOINDER AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT
ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
NORTH CAROLINA STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION
OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS GUARANTY AGREEMENT OR ANY
GUARANTY JOINDER AGREEMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY
LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY
AGREEMENT OR ANY GUARANTY JOINDER AGREEMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.


     (c) EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT
OR ANY GUARANTY JOINDER AGREEMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.


     (d) EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED
FOR NOTICES IN SECTION 24. NOTHING IN THIS GUARANTY AGREEMENT WILL AFFECT THE RIGHT
OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.


     27. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT OR ANY
GUARANTY JOINDER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON
WOULD NOT, IN THE EVENT OF



Form of Guaranty





F-11









 








LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AGREEMENT OR ANY GUARANTY JOINDER AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.




[Signature page follows.]




Form of Guaranty








F-12









 








     IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Guaranty
Agreement as of the day and year first written above.



	 	 	 	 	 
	 	GUARANTORS:
 	 
	 	 	 
	 	 	 
	 	By: 	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	

ADMINISTRATIVE AGENT:



BANK OF AMERICA, N.A., as Administrative
Agent

 	 
	 	By: 	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



GUARANTY AGREEMENT

Signature page





 











 





EXHIBIT A




Form of Guaranty Joinder Agreement



GUARANTY JOINDER AGREEMENT



     THIS GUARANTY JOINDER AGREEMENT (the “Guaranty Joinder Agreement”), dated as of
_____________, 20__ is made by _____________________, a ________________ (the “Joining
Guarantor”), delivered to BANK OF AMERICA, N.A., in its capacity as Administrative Agent (the
“Administrative Agent”) under that certain Credit Agreement (as amended, revised, modified,
supplemented or amended and restated from time to time, the “Credit Agreement”), dated as
of [  ____, 20__], by and among PIEDMONT NATURAL GAS COMPANY, INC. (the “Borrower”), the
Lenders party thereto and the Administrative Agent. All capitalized terms not otherwise defined
herein shall have the meanings given to such terms in the Credit Agreement.



     WHEREAS, the Joining Guarantor is a Subsidiary that is a Regulated Entity and required by the
terms of the Credit Agreement to become a Guarantor under the Credit Agreement and be joined as a
party to the Guaranty; and



     WHEREAS, the Joining Guarantor will materially benefit directly and indirectly from the credit
facilities made available and to be made available to the Borrower by the Lenders under the Credit
Agreement; and



     NOW, THEREFORE, the Joining Guarantor hereby agrees as follows with the Administrative Agent,
for the benefit of the Beneficiaries (as defined in the Guaranty and including any Lender or
Affiliate of any Lender party to any Related Credit Arrangement):



     1. Joinder. The Joining Guarantor hereby irrevocably, absolutely and unconditionally
becomes a party to the Guaranty as a Guarantor and bound by all the terms, conditions, obligations,
liabilities and undertakings of each Guarantor or to which each Guarantor is subject thereunder,
including without limitation the joint and several, unconditional, absolute, continuing and
irrevocable guarantee to the Administrative Agent for the benefit of the Beneficiaries of the
payment and performance in full of the Guaranteed Liabilities (as defined in the Guaranty) whether
now existing or hereafter arising, all with the same force and effect as if the Joining Guarantor
were a signatory to the Guaranty.



     2. Affirmations. The Joining Guarantor hereby acknowledges and reaffirms as of the
date hereof with respect to itself, its properties and its affairs each of the waivers,
representations, warranties, acknowledgements and certifications applicable to any Guarantor
contained in the Guaranty.



Form of Guaranty



F-14









 





     3. Severability. If any provision of this Guaranty Joinder Agreement is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Guaranty Joinder Agreement shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which comes as close as
possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.



     4. Counterparts. This Guaranty Joinder Agreement may be executed in any number of
counterparts each of which when so executed and delivered shall be deemed an original, and it shall
not be necessary in making proof of this Guaranty Joinder Agreement to produce or account for more
than one such counterpart executed by the Joining Guarantor. Without limiting the foregoing
provisions of this Section 4, the provisions of Section 10.02(b) of the Credit
Agreement shall be applicable to this Guaranty Joinder Agreement.



     5. Delivery. Joining Guarantor hereby irrevocably waives notice of acceptance of this
Guaranty Joinder Agreement and acknowledges that the Guaranteed Liabilities are and shall be deemed
to be incurred, and credit extensions under the Loan Documents and the Related Credit Arrangements
made and maintained, in reliance on this Guaranty Joinder Agreement and the Guarantor’s joinder as
a party to the Guaranty as herein provided.



     6. Governing Law; Jurisdiction; Waiver of Jury Trial; Etc.. The provisions of
Sections 26 and 27 of the Guaranty are hereby incorporated by reference as if fully
set forth herein.



     IN WITNESS WHEREOF, the Joining Guarantor has duly executed and delivered this Guaranty
Joinder Agreement as of the day and year first written above.



	 	 	 	 	 
	 	JOINING GUARANTOR:

 	 
	 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Form of Guaranty



F-15









 





EXHIBIT G




OPINION



January 25, 2011



To Those on the Attached Distribution List



Re: Credit Agreement in favor of Piedmont Natural Gas Company, Inc.



Ladies and Gentlemen:





     We have acted as counsel to Piedmont Natural Gas Company, Inc., a North Carolina corporation
(the “Borrower”), in connection with that certain Credit Agreement dated as of January 25,
2011 (the “Credit Agreement”), by and among the Borrower; Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer; and each lender from time to time party
thereto (the “Lenders”). Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement. This opinion is delivered
pursuant to Section 4.01(a)(v) of the Credit Agreement. For purposes of rendering our opinion set
forth herein, we have reviewed originals or copies, certified or otherwise identified to our
satisfaction, of the following documents, each of which (unless otherwise noted) is dated as of the
date hereof:



     1. the Credit Agreement;



     2. Note
in favor of Bank of America, N.A. (the “BOA Note”);



     3. Note
in favor of Branch Banking and Trust Company (the “BB&T Note”);



     4. Note
in favor of JPMorgan Chase Bank, N.A. (the “JPMorgan Note”);



     5. Note
in favor of PNC Bank, National Association (the “PNC Note”);



     6. Note
in favor of U.S. Bank National Association (the “US Bank Note”); and



     7. Note in favor of Wells Fargo Bank, National Association (the “Wells Fargo Note,”
and together with the BOA Note, the BB&T Note, the JPMorgan Note, the PNC Note and the US Bank
Note, collectively, the “Notes”).



     The Credit Agreement and the Notes are individually referred to herein as a “Loan
Document” and collectively as the “Loan Documents”. As to various questions of fact
material to our opinion, we have relied upon, and assumed without independent investigation the



Form of Opinion



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January 25, 2011

Page 2



accuracy of, the representations made by the parties to the Loan Documents (other than those which
are expressed as our opinions).




     In addition, for purposes of giving this opinion, we have examined such corporate records
of the Borrower, certificates of public officials, certificates of appropriate officers and
officials of the Borrower and such other documents, and have made such inquiries, as we have deemed
appropriate.



     In rendering the opinions expressed herein, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as conformed or photostatic copies and the authenticity
of the originals of such copies. For the purposes of the opinions hereinafter expressed, we have
further assumed: (i) the legal capacity of all natural persons executing any Loan Document; (ii)
that there are no oral or written statements or agreements, course of performance after the date
hereof between any parties to the Loan Documents, course of dealing between any parties to the Loan
Documents or usage of trade that modify, amend or vary any of the terms of any Loan Document; (iii)
that, as to factual matters, any certificate, representation or other document upon which we have
relied and which was given or dated earlier than the date of this opinion letter, continues to
remain accurate, insofar as relevant to the opinions contained herein, from such earlier date
through and including the date hereof; (iv) that there has been no mutual mistake of fact between
any parties to the Loan Documents, or misrepresentation, fraud or deceit on the part of any party
to the Loan Documents in connection with the execution, delivery, performance under, or
transactions contemplated by, the Loan Documents; (v) all parties to the Loan Documents are in good
standing and validly existing under the laws of their respective jurisdictions of organization;
(vi) due authorization, execution and delivery of the Loan Documents by all parties thereto; (vii)
that each of the parties to the Loan Documents has the power and authority to execute and deliver
the Loan Documents to which it is a party and to perform its respective obligations thereunder;
(viii) that each Loan Document is valid, binding and enforceable against all parties thereto other
than the Borrower; (ix) that the execution and delivery by the Borrower of the Loan Documents and
the performance by the Borrower of its obligations thereunder will not violate or result in a
breach of any of the terms, conditions or provisions of (A) any law or regulation (other than any
law or regulation of the State of North Carolina or federal law or regulation of the United States,
in each case excepting any law or regulation that has been excepted from this opinion letter
pursuant to the next following paragraph and the enumerated items thereafter), (B) any order, writ,
judgment, injunction, or decree of any court, governmental authority or arbitrator, or (C) except
as expressly set forth in paragraph 5 hereof, any agreement, document or instrument to which any
such party is a party, by which it or its property is bound, or to which it is subject; and (x)
that all parties to the Loan Documents are in material compliance with all applicable laws, rules
and regulations governing the conduct of their business with respect to the transactions
contemplated by the Loan Documents.



     The opinions set forth herein are limited to matters governed by the laws of the State of
North Carolina and the federal laws of the United States, and no opinion is expressed herein as to
the laws of any other jurisdiction. We express no opinion concerning any matter respecting or
affected by any laws other than laws that a lawyer admitted to practice law in the State of North



Form of Opinion



G-2









 






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Carolina exercising customary professional diligence would reasonably recognize as being directly
applicable to the Borrower or the transactions contemplated in the Loan Documents. Without limiting the generality of the foregoing, we express no opinion concerning the
following legal issues or the application of any such laws or regulations to the matters on which our opinions are referenced:





	 	(i)	 	except as expressly set forth in paragraph 2 hereof, federal and state
securities laws and regulations;
	 
	 	(ii)	 	except as expressly set forth in paragraph 3 hereof, Federal Reserve Board
margin regulations;
	 
	 	(iii)	 	pension and employee benefit laws and regulations;
	 
	 	(iv)	 	federal and state antitrust and unfair competition laws and regulations;
	 
	 	(v)	 	compliance with fiduciary duty requirements;
	 
	 	(vi)	 	the statutes, administrative decisions, and rules and regulations of county,
municipal and special political subdivisions, whether state-level, regional or
otherwise;
	 
	 	(vii)	 	federal and state laws and regulations concerning the condition of title to
any property;
	 
	 	(viii)	 	fraudulent transfer laws;
	 
	 	(ix)	 	federal and state environmental laws and regulations;
	 
	 	(x)	 	federal and state tax laws and regulations;
	 
	 	(xi)	 	federal and state land use and subdivision laws and regulations;
	 
	 	(xii)	 	state and federal regulatory laws or regulations specifically applicable to
any entity as a result of its non-profit status or solely because of the business in
which it is engaged;
	 
	 	(xiii)	 	the perfection or priority of any lien purported to be created by the Loan Documents;
	 
	 	(xiv)	 	federal and state utility laws and regulations; or
	 
	 	(xv)	 	laws, rules and regulations relating to money laundering and terrorist groups
(including without limitation the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, 115 Stat. 380 (October 26, 2001), as amended,
Executive Order 13224, the Trading with the Enemy Act, 50 App. U.S.C. 1, et.





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	 	 	 	seq., any similar or related law and the rules and regulations (temporary or
permanent) promulgated under the foregoing or by the Office of Foreign Assets Control
of the United States Department of Treasury, as each is amended from time to time.





     Based upon the foregoing, and such legal considerations as we have deemed necessary and
subject to the assumptions and qualifications set forth herein, we are of the opinion that:



     1. Each of the Loan Documents constitutes a valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms.



     2. Based solely upon the factual certifications in the officer’s certificate attached as
Exhibit A hereto (the “Officer’s Certificate”), the Borrower is not an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.



     3. Assuming the Borrower complies with the provisions of the Credit Agreement relating to the
use of proceeds of the Loans, the making of the Loans under the Credit Agreement does not violate
Regulation U or X of the Board of Governors of the Federal Reserve System.



     4. Under federal laws, rules and regulations of the United States of America and the laws,
rules and regulations of the State of North Carolina, no consent, approval, authorization,
declaration or filing by or with any governmental authority, commission, board or agency is
required for the execution, delivery and performance of the Loan Documents that has not been
obtained or made as of the date hereof.



     5. The execution and delivery by the Borrower of the Loan Documents and compliance by the
Borrower with all of the provisions thereof (a) do not result in a breach of or a default under any
document identified to us as a material financing document in the Officer’s Certificate (except
that we express no opinion with respect to matters which require the performance of a mathematical
calculation or the making of a financial or accounting determination) and (b) do not violate any
federal law, rule or regulation of the United States of America or any law, rule or regulation of
the State of North Carolina.



     Our opinions concerning the enforceability of the Loan Documents are subject to the following
qualifications:



     (a) Enforcement of the Loan Documents may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratoria or similar state or federal debtor relief laws
from time to time in effect and which affect the enforcement of creditors’ rights in general.




     (b) Enforcement of the Loan Documents is subject both to general principles of equity
and to considerations of public policy, including the requirement that the parties thereto act with
commercial reasonableness and in good faith to the extent required by applicable law, the
application of which may deny certain rights and may be applied by a court of proper jurisdiction,
regardless of whether such enforceability is considered in a proceeding in equity or at law. For
purposes of this paragraph, the terms “general principles of equity” and



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“considerations of public policy” may include, but are not limited to, issues related to the right to or obligation of the
appointment of a receiver in certain circumstances; the ability of an entity to appoint an
attorney-in-fact; fiduciary obligations of attorneys-in-fact; the enforceability of usury savings
clauses; waiver of procedural, substantive, or constitutional rights, including, without
limitation, the right of statutory or equitable redemption; disclaimers or limitations of
liability; waiver of defenses; waiver of acceleration rights through historical acceptance of late
payments; the exercise of self-help or other remedies without judicial process; accounting for rent
or sale proceeds; requirements of mitigation of damages; and enforcement of default interest
provisions. Any provision waiving a right to jury trial is unenforceable as against public policy
pursuant to North Carolina General Statutes Section 22B-10.




     (c) The enforceability and availability of certain remedies, rights and waiver provisions, may
be limited or rendered ineffective by applicable law; provided, that subject to the other
exceptions noted herein, there exist legally adequate remedies for the realization of the principal
benefits intended to be afforded under the Loan Documents.



     (d) We express no opinion on the enforceability of any provision in a Loan Document purporting
to prohibit, restrict or condition the assignment of rights under such Loan Document to the extent
such restriction on assignability is rendered ineffective by Section 9-408 of the Uniform
Commercial Code.



     (e) We express no opinion with respect to any provision of the Loan Documents providing that
the acceptance by the Administrative Agent or any Lender of a past due installment or other
performance by a party shall not be deemed a waiver of its right to accelerate any payment
obligation or other rights under the Loan Documents.



     (f) We express no opinion with respect to any provision of the Loan Documents purporting to
require a party to pay or reimburse attorneys’ fees incurred by another party or to indemnify
another party therefor which may be limited by applicable law and public policy.



     (g) We express no opinion with respect to any waiver of the statute of limitations contained
in the Loan Documents.



     (h) We express no opinion with respect to any provision of the Loan Documents which requires
that any amendments or waivers to the Loan Documents must be in writing.



     (i) We express no opinion as to the enforceability of any provision in the Loan Documents that
purports to excuse a party for liability for its own acts.



     (j) We express no opinion as to the enforceability of any provision in the Loan Documents
that purports to make void any act done in contravention thereof.



     (k) We express no opinion as to the enforceability of any provision in the Loan Documents that
purports to authorize a party to act in its sole discretion, that imposes liquidated damages,
penalties, late payment charges or forfeiture or that relates to evidentiary standards or other
standards by which any of the Loan Documents is to be construed.



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     (l) We express no opinion as to the enforceability of provisions of the Loan Documents
providing for the indemnification of or contribution to a party with respect to such party’s own
negligence or willful misconduct, or where such indemnification or contribution is contrary to
public policy.



     (m) Provisions, if any, in the Loan Documents to the effect that waiver by a party of
performance obligations by another party shall not be deemed a waiver of such party’s right
thereafter to cause the applicable document to be in default may not be enforceable in all
circumstances, unless such party shall (i) first provide written notice to the other party that
subsequent defaults will not be accepted and will result in a default under the Loan Documents, and
(ii) thereafter, timely and diligently pursue its default remedies under the Loan Documents. We
express no opinion on the enforceability of any provision of the Loan Documents to the extent that
such provision constitutes a waiver of illegality as a defense to performance of contract
obligations.



     (n) We express no opinion with respect to any consent to venue, jurisdiction or service of
process provisions or any waiver of an objection that an action or proceeding has been brought in
an inconvenient forum.



     (o) We express no opinion with respect to any severability provisions.



     (p) We express no opinion with respect to any provision waiving the obligation to marshal
assets.



     (q) We express no opinion with respect to any provision of any Loan Document to the extent it
authorizes or permits any affiliate of a Lender or any purchaser of a participation interest to
set-off or apply any deposit, property or indebtedness.



     (r) North Carolina General Statutes Section 6-21.2 sets forth the procedures and limitations
applicable to the collection of attorneys’ fees and accordingly, any provisions in the Loan
Documents related to the ability of the Lenders or any other party to collect attorneys’ fees upon
default are subject to those limitations.



     This opinion is delivered solely to you, in connection with the transactions contemplated
under the Loan Documents and may not be relied upon for any other purpose or in any manner by any
Person other than the addressees hereof, except that we hereby consent to reliance hereon by any successor or permitted assignee of any addressee (including successive assignees)
under the Credit Agreement (collectively, the “Reliance Parties”), on the condition and
understanding that (i) this letter speaks only as of the date hereof, (ii) we have no
responsibility or obligation to update this letter, to consider its applicability or correctness to
any person other than its addressees, or to take into account changes in law, facts or any other
developments of which we may later become aware, and (iii) any such reliance must be actual and
reasonable under the circumstances existing at the time of transfer, including any changes in law,
facts or other developments known to or reasonably known by the Reliance Party at such time.



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     No copies of this opinion may be delivered or furnished to any other party other than a
Reliance Party or a prospective Reliance Party, nor may all or portions of this opinion be quoted,
circulated or referred to in any other document without our prior written consent, except that
copies of this opinion may be provided to any regulatory agency having supervisory authority over
you or a Reliance Party and except that this opinion may be used in connection with the assertion
of a defense as to which this opinion is relevant and necessary or in response to a court order or
other legal process. The opinions expressed in this letter are rendered as of the date hereof and
we express no opinion as to circumstances or events or change in applicable law that may occur
subsequent to such date.


Very truly yours,



MOORE & VAN ALLEN PLLC




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Distribution List




     Bank of America, N.A., as Administrative Agent, Swing Line Lender, L/C Issuer and a Lender



     Branch Banking and Trust Company, as a Lender



     JPMorgan Chase Bank, N.A., as a Lender



     PNC Bank, National Association, as a Lender



     U.S. Bank National Association, as a Lender



     Wells Fargo Bank, National Association, as a Lender



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EXHIBIT A




OFFICER’S CERTIFICATE

OF

PIEDMONT NATURAL GAS COMPANY, INC.

FOR

OPINION OF MOORE & VAN ALLEN PLLC



     I, Robert O. Pritchard, hereby certify that I am the duly elected, qualified and acting
Treasurer and Chief Risk Officer of Piedmont Natural Gas Company, Inc., a North Carolina
corporation (the “Borrower”), and do hereby certify:



     1. As Treasurer and Chief Risk Officer of the Borrower, I am familiar with the business and
affairs of the Borrower and with the proceedings taken in connection with the Credit Agreement
dated as of January 25, 2011 (the “Credit Agreement”), by and among the Borrower, Bank of America,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer thereunder and each Lender from
time to time party thereto. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings assigned to them in the Credit Agreement. I have either personal
knowledge of the matters and things hereinbelow set forth or have obtained information with respect
thereto from officers and employees of the Borrower in whom I have confidence and whose duties
require them to have personal knowledge thereof.



     2. I am familiar with the terms of the Credit Agreement and each of the other documents
entered into in connection with the transactions contemplated therein (the “Transaction Documents”)
and make this certificate with the intent that it shall be relied upon by Moore & Van Allen PLLC as
a basis for its opinion to be rendered with respect to the transactions contemplated by the
Transaction Documents.



     3. The Borrower is not an entity which (a) is or holds itself out as being engaged primarily,
or proposes to engage primarily, in the business of investing, reinvesting or trading in
securities; (b) is engaged or proposes to engage in the business of issuing face-amount
certificates of the installment type, or has been engaged in such business and has any such
certificate outstanding; or (c) is engaged or proposes to engage in the business of investing,
reinvesting, owning, holding or trading in securities, nor does the Borrower own or propose to
acquire “investment securities” having a value exceeding 40 per centum of the value of its total
assets (exclusive of government securities and cash items) on an unconsolidated basis. As used in
this paragraph, “investment securities” include all securities except (i) government securities,
(ii) securities issued by employees’ securities companies, and (iii) securities issued by
majority-owned subsidiaries of the owner which are not investment companies. As used in this
paragraph, “government securities” means any security issued or guaranteed as to principal or
interest by the United States, or by a person controlled or supervised by and acting as an
instrumentality of the Government of the United States pursuant to authority granted by the
Congress of the United States; or any certificate of deposit for any of the foregoing.



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     4. The documents listed on Schedule 1 hereto constitute all material financing
documents of the Borrower.



     5. Attached hereto as Schedule 2 is a true and correct copy of the Order Granting
Authority to Borrow Under Credit Agreement issued as of January 7, 2011 by the North Carolina
Utilities Commission.



     IN WITNESS WHEREOF, the undersigned has executed this Officer’s Certificate this 25th day of
January, 2011.



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	Robert O. Pritchard 	 
	 	 	Title:  	Vice President, Treasurer and Chief

Risk Officer 	 



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Schedule 1




Material Financing Documents




	1.	 	Note Agreement, dated as of September 21, 1992, between Piedmont and Provident Life and
Accident Insurance Company.
	 
	2.	 	Amendment to Note Agreement, dated as of September 16, 2005, by and between Piedmont and
Provident Life and Accident Insurance Company.
	 
	3.	 	Indenture, dated as of April 1, 1993, between Piedmont and The Bank of New York Mellon Trust
Company, N.A. (as successor to Citibank, N.A.), Trustee.
	 
	4.	 	Medium-Term Note, Series A, dated as of October 6, 1993.
	 
	5.	 	First Supplemental Indenture, dated as of February 25, 1994, between PNG Acquisition Company,
Piedmont Natural Gas Company, Inc., and Citibank, N.A., Trustee.
	 
	6.	 	Medium-Term Note, Series A, dated as of September 19, 1994.
	 
	7.	 	Form of Master Global Note.
	 
	8.	 	Pricing Supplement of Medium-Term Notes, Series B, dated October 3, 1995.
	 
	9.	 	Pricing Supplement of Medium-Term Notes, Series B, dated October 4, 1996.
	 
	10.	 	Form of Master Global Note, executed September 9, 1999.
	 
	11.	 	Pricing Supplement of Medium-Term Notes, Series C, dated September 15, 1999.
	 
	12.	 	Pricing Supplement No. 3 of Medium-Term Notes, Series C, dated September 26, 2000.
	 
	13.	 	Form of Master Global Note, executed June 4, 2001.
	 
	14.	 	Pricing Supplement No. 1 of Medium-Term Notes, Series D, dated September 18, 2001.
	 
	15.	 	Second Supplemental Indenture, dated as of June 15, 2003, between Piedmont and Citibank,
N.A., Trustee.
	 
	16.	 	Form of 5% Medium-Term Note, Series E, dated as of December 19, 2003.
	 
	17.	 	Form of 6% Medium-Term Note, Series E, dated as of December 19, 2003.
	 
	18.	 	Third Supplemental Indenture, dated as of June 20, 2006, between Piedmont Natural Gas
Company, Inc. and Citibank, N.A., as trustee.
	 
	19.	 	Form of 6.25% Insured Quarterly Note Series 2006, Due 2036.
	 
	20.	 	Agreement of Resignation, Appointment and Acceptance, dated as of March 29, 2007, by and
among the registrant, Citibank N.A., and The Bank of New York Trust Company, N.A.





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Schedule 2




Order
Granting Authority to Borrow Under Credit Agreement issued as of January 7, 2011 by the North Carolina Utilities Commission.



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