Filed by Bowne Pure Compliance





Exhibit 10.1




EXECUTION VERSION




 





SECOND AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of September 30, 2008




Among




MXENERGY INC. and

MXENERGY ELECTRIC INC.




as Borrowers,




MXENERGY HOLDINGS INC. AND CERTAIN SUBSIDIARIES THEREOF,




as Guarantors,




THE LENDERS FROM TIME TO TIME PARTY HERETO,




as Lenders,




and




SOCIÉTÉ GÉNÉRALE,




as Administrative Agent




 






SOCIÉTÉ GÉNÉRALE,




Lead Arranger and Sole Bookrunner




 










 


 









 










TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	Section 1.01 Certain Defined Terms
	 	 	1	 
	Section 1.02 Computation of Time Periods
	 	 	29	 
	Section 1.03 Accounting Terms
	 	 	29	 
	Section 1.04 Types of Advances
	 	 	30	 
	Section 1.05 Miscellaneous
	 	 	30	 
	ARTICLE II THE ADVANCES
	 	 	31	 
	Section 2.01 The Advances
	 	 	31	 
	Section 2.02 Method of Borrowing
	 	 	35	 
	Section 2.03 Fees
	 	 	38	 
	Section 2.04 Reduction of the Revolving Commitments
	 	 	40	 
	Section 2.05 Repayment
	 	 	40	 
	Section 2.06 Interest
	 	 	40	 
	Section 2.07 Prepayments
	 	 	41	 
	Section 2.08 Funding Losses
	 	 	43	 
	Section 2.09 Increased Costs
	 	 	44	 
	Section 2.10 Payments and Computations
	 	 	45	 
	Section 2.11 Taxes
	 	 	46	 
	Section 2.12 Sharing of Payments, Etc
	 	 	49	 
	Section 2.13 Applicable Lending Offices
	 	 	49	 
	Section 2.14 Letters of Credit
	 	 	50	 
	Section 2.15 Mitigation Obligations; Replacement of Lenders
	 	 	55	 
	ARTICLE III CONDITIONS OF LENDING
	 	 	56	 
	Section 3.01 Initial Conditions Precedent
	 	 	56	 
	Section 3.02 Conditions Precedent to Each Credit Event
	 	 	59	 
	Section 3.03 Determinations Under Section 3.01 and 3.02
	 	 	60	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	60	 
	Section 4.01 Existence; Subsidiaries
	 	 	60	 
	Section 4.02 Power and Authority
	 	 	60	 
	Section 4.03 Authorization and Approvals
	 	 	61	 






 


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TABLE OF CONTENTS
(continued)






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 4.04 Enforceable Obligations
	 	 	61	 
	Section 4.05 Financial Statements; No Material Adverse Effect
	 	 	61	 
	Section 4.06 True and Complete Disclosure
	 	 	62	 
	Section 4.07 Litigation
	 	 	62	 
	Section 4.08 Compliance with Laws
	 	 	62	 
	Section 4.09 No Default
	 	 	63	 
	Section 4.10 Subsidiaries; Corporate Structure
	 	 	63	 
	Section 4.11 Condition of Properties
	 	 	63	 
	Section 4.12 Environmental Condition
	 	 	64	 
	Section 4.13 Insurance
	 	 	64	 
	Section 4.14 Taxes
	 	 	65	 
	Section 4.15 ERISA Compliance
	 	 	65	 
	Section 4.16 Security Interests
	 	 	65	 
	Section 4.17 Bank Accounts
	 	 	66	 
	Section 4.18 Labor Relations
	 	 	66	 
	Section 4.19 Intellectual Property
	 	 	66	 
	Section 4.20 Solvency
	 	 	67	 
	Section 4.21 Senior Indebtedness
	 	 	67	 
	Section 4.22 Margin Regulations
	 	 	67	 
	Section 4.23 Investment Company Act; Public Utility Holding Company Act
	 	 	67	 
	Section 4.24 Names and Locations
	 	 	67	 
	Section 4.25 Revisions or Updates to the Schedules
	 	 	67	 
	ARTICLE V AFFIRMATIVE COVENANTS
	 	 	68	 
	Section 5.01 Preservation of Existence, Etc
	 	 	68	 
	Section 5.02 Compliance with Laws, Etc
	 	 	68	 
	Section 5.03 Maintenance of Property
	 	 	68	 
	Section 5.04 Maintenance of Insurance
	 	 	69	 
	Section 5.05 Payment of Taxes, Etc
	 	 	69	 
	Section 5.06 Reporting Requirements
	 	 	69	 






 


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TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 5.08 Books and Records; Inspection
	 	 	74	 
	Section 5.09 Use of Proceeds
	 	 	75	 
	Section 5.10 Nature of Business
	 	 	75	 
	Section 5.11 Risk Management Policy
	 	 	75	 
	Section 5.12 Additional Guarantors
	 	 	75	 
	Section 5.13 Additional Collateral Requirements
	 	 	76	 
	Section 5.14 Further Assurances in General
	 	 	76	 
	Section 5.15 Secured Counterparty Guaranty
	 	 	76	 
	Section 5.16 Borrowing Base
	 	 	76	 
	Section 5.17 Sowood Borrowing
	 	 	76	 
	ARTICLE VI NEGATIVE COVENANTS
	 	 	77	 
	Section 6.01 Liens, Etc
	 	 	77	 
	Section 6.02 Debts, Guaranties and Other Obligations
	 	 	78	 
	Section 6.03 Merger or Consolidation
	 	 	79	 
	Section 6.04 Asset Sales
	 	 	79	 
	Section 6.05 Investments and Acquisitions
	 	 	80	 
	Section 6.06 Restricted Payments
	 	 	80	 
	Section 6.07 Change in Nature of Business
	 	 	81	 
	Section 6.08 Transactions With Affiliates
	 	 	81	 
	Section 6.09 Agreements Restricting Liens and Distributions
	 	 	81	 
	Section 6.10 Limitation on Accounting Changes or Changes in Fiscal Periods
	 	 	82	 
	Section 6.11 Limitation on Speculative Hedging
	 	 	82	 
	Section 6.12 Operating Leases
	 	 	82	 
	Section 6.13 Sale and Leaseback Transactions and other Off-Balance Sheet Liabilities
	 	 	82	 
	Section 6.14 Subordinated Debt
	 	 	82	 
	Section 6.15 Amendment of Material Contracts
	 	 	83	 
	Section 6.16 Capital Expenditures
	 	 	83	 
	Section 6.17 Minimum Consolidated Tangible Net Worth
	 	 	83	 
	Section 6.18 Minimum Consolidated Working Capital
	 	 	83	 






 


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TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 6.19 Maximum Aggregate Negative EBITDA
	 	 	83	 
	Section 6.20 Interest Coverage Ratio
	 	 	83	 
	Section 6.21 Average Leverage Ratio
	 	 	84	 
	Section 6.22 Monthly Leverage Ratio
	 	 	84	 
	ARTICLE VII EVENTS OF DEFAULT
	 	 	84	 
	Section 7.01 Events of Default
	 	 	84	 
	Section 7.02 Optional Acceleration of Maturity
	 	 	86	 
	Section 7.03 Automatic Acceleration of Maturity
	 	 	87	 
	Section 7.04 Non-exclusivity of Remedies
	 	 	87	 
	Section 7.05 Right of Set-off
	 	 	87	 
	Section 7.06 Application of Proceeds
	 	 	88	 
	Section 7.07 Administrative Agent’s Account
	 	 	89	 
	ARTICLE VIII GUARANTY
	 	 	89	 
	Section 8.01 Liabilities Guaranteed
	 	 	89	 
	Section 8.02 Nature of Guaranty
	 	 	90	 
	Section 8.03 Agent’s Rights
	 	 	90	 
	Section 8.04 Guarantor’s Waivers
	 	 	90	 
	Section 8.05 Maturity of Obligations, Payment
	 	 	91	 
	Section 8.06 Agent’s Expenses
	 	 	91	 
	Section 8.07 Liability
	 	 	92	 
	Section 8.08 Events and Circumstances Not Reducing or Discharging any Guarantor’s
Obligations
	 	 	92	 
	Section 8.09 Subordination of All Guarantor Claims
	 	 	94	 
	Section 8.10 Claims in Bankruptcy
	 	 	95	 
	Section 8.11 Payments Held in Trust
	 	 	95	 
	Section 8.12 Benefit of Guaranty
	 	 	95	 
	Section 8.13 Reinstatement
	 	 	95	 
	Section 8.14 Liens Subordinate
	 	 	96	 
	Section 8.15 Guarantor’s Enforcement Rights
	 	 	96	 
	Section 8.16 Limitation
	 	 	96	 






 


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TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 8.17 Contribution Rights
	 	 	96	 
	Section 8.18 Release of Guarantors
	 	 	97	 
	ARTICLE IX THE ADMINISTRATIVE AGENT
	 	 	97	 
	Section 9.01 Appointment and Authority
	 	 	97	 
	Section 9.02 Rights as a Lender
	 	 	97	 
	Section 9.03 Exculpatory Provisions
	 	 	98	 
	Section 9.04 Reliance by the Administrative Agent
	 	 	98	 
	Section 9.05 Delegation of Duties
	 	 	99	 
	Section 9.06 Resignation of the Administrative Agent
	 	 	99	 
	Section 9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	100	 
	Section 9.08 Indemnification
	 	 	100	 
	Section 9.09 Collateral and Guaranty Matters
	 	 	101	 
	Section 9.10 Intercreditor Agreement and Security Documents
	 	 	102	 
	Section 9.11 No Other Duties, etc
	 	 	102	 
	ARTICLE X MISCELLANEOUS
	 	 	103	 
	Section 10.01 Amendments, Etc
	 	 	103	 
	Section 10.02 Notices, Etc
	 	 	104	 
	Section 10.03 No Waiver; Cumulative Remedies
	 	 	105	 
	Section 10.04 Costs and Expenses
	 	 	105	 
	Section 10.05 Indemnification
	 	 	106	 
	Section 10.06 Successors and Assigns
	 	 	107	 
	Section 10.07 Confidentiality
	 	 	110	 
	Section 10.08 Execution in Counterparts
	 	 	111	 
	Section 10.09 Survival of Representations, etc
	 	 	111	 
	Section 10.10 Severability
	 	 	111	 
	Section 10.11 Interest Rate Limitation
	 	 	112	 
	Section 10.12 Governing Law
	 	 	112	 
	Section 10.13 Joint and Several Liability
	 	 	112	 
	Section 10.14 Submission to Jurisdiction
	 	 	113	 
	Section 10.15 Waiver of Jury
	 	 	114	 
	Section 10.16 Entire Agreement
	 	 	114	 





 


-v-









 





	 	 	 	 	 
	EXHIBITS:
	 	 	 	 
	 
	 	 	 	 
	Exhibit A

	 	-
	 	Form of Assignment and Acceptance Agreement
	Exhibit B

	 	-
	 	Form of Borrowing Base Report
	Exhibit C

	 	-
	 	Form of Compliance Certificate
	Exhibit D

	 	-
	 	Form of Letter of Credit Request
	Exhibit E

	 	-
	 	Form of Note
	Exhibit F

	 	-
	 	Form of Notice of Borrowing
	Exhibit G

	 	-
	 	Form of Notice of Conversion or Continuation
	Exhibit H

	 	-
	 	Form of Pledge Agreement
	Exhibit I

	 	-
	 	Form of Security Agreement
	Exhibit J

	 	-
	 	Form of Qualifying Supplier Letter of Credit
	Exhibit K

	 	-
	 	Form of Risk Management Policy Certification






	 	 	 	 	 
	SCHEDULES:
	 	 	 	 
	 
	 	 	 	 
	Schedule 1.01(a)

	 	-
	 	Tier II Eligible Exchange Accounts
	Schedule 1.01(b)

	 	-
	 	Guarantors
	Schedule 1.01(c)

	 	-
	 	LDCs
	Schedule 1.01(e)

	 	-
	 	Material Contracts
	Schedule 2.01

	 	-
	 	Commitments and Pro Rata Shares of the Lenders
	Schedule 4.01

	 	-
	 	Licensed Jurisdictions
	Schedule 4.10

	 	-
	 	Subsidiaries
	Schedule 4.13

	 	-
	 	Insurance
	Schedule 4.17

	 	-
	 	Bank Accounts
	Schedule 4.24

	 	-
	 	Locations
	Schedule 6.01

	 	-
	 	Existing Liens
	Schedule 6.02

	 	-
	 	Existing Debt
	Schedule 6.05

	 	-
	 	Investments
	Schedule 6.08

	 	-
	 	Affiliate Transactions
	Schedule 6.09

	 	-
	 	Restrictive Agreements
	Schedule 10.02

	 	-
	 	Addresses for Notice





 


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SECOND AMENDED AND RESTATED CREDIT AGREEMENT




This Second Amended and Restated Credit Agreement dated as of September 30, 2008 is among
MxEnergy Inc., a Delaware corporation (“MxEnergy”), MxEnergy Electric Inc., a Delaware
corporation (“MxEnergy Electric”; MxEnergy and MxEnergy Electric are each individually, a
“Borrower” and collectively, the “Borrowers”), the Guarantors, the Lenders, and
Société Générale, as Administrative Agent for the Lenders.



Reference is made to the First Amended and Restated Credit Agreement dated as of August 1,
2006, as amended (the “Existing Credit Agreement”) executed among the Borrowers, the
Lenders party thereto, and the Administrative Agent, pursuant to which the Lenders parties thereto
agreed to make available to the Borrower a revolving credit facility for loans and letters of
credit upon the terms and conditions set forth therein and in the other Loan Documents (as defined
therein).



The Borrowers have requested the Lenders, and the Lenders have agreed, to amend and restate
the Existing Credit Agreement, subject to the terms and conditions of this Agreement.



The Borrowers, the Guarantors, the Lenders, and the Administrative Agent agree as follows:



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




Section 1.01 Certain Defined Terms. Any terms used in this Agreement that are defined
in Article 9 of the Uniform Commercial Code as adopted in the State of New York (“UCC”)
shall have the meanings assigned to those terms by the UCC as of the date of this Agreement. As
used in this Agreement, the terms defined above shall have the meanings set forth therein and the
following terms shall have the following meanings (unless otherwise indicated, such meanings to be
equally applicable to both the singular and plural forms of the terms defined):



“Acceptable Credit Support” means one or more letters of credit payable in Dollars for
the benefit of a Borrower or one of its Subsidiaries to support payment of an Eligible Exchange
Account or Eligible Account of such Loan Party, which letter of credit is in form and substance
acceptable to the Administrative Agent and issued by a bank or other financial institution approved
by the Administrative Agent, each in its sole discretion, and for which an Acceptable Security
Interest exists on all letter-of-credit rights associated with such letter of credit.



“Acceptable Security Interest” in any Property means a Lien which (a) exists in favor
of the Administrative Agent for the benefit of the Secured Parties; (b) secures the Obligations;
and (c) is perfected and enforceable against the Loan Party that created such security interest in
preference to any rights of any Person therein, other than Excepted Liens.


 


1









 





“Account Control Agreement” shall mean, if any deposit or securities account of a
Borrower or any Loan Party is held with a financial institution that is not the Administrative
Agent, an agreement or agreements in form and substance reasonably acceptable to the Administrative
Agent between the Administrative Agent and such other financial institution governing any such
deposit accounts or securities accounts of such Borrower or such Loan Party.



“Acquisition” means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Parent or any of its Subsidiaries
(a) acquires any going business or all or substantially all of the assets of any firm, corporation
or limited liability company, or division thereof, whether through purchase of assets, merger or
otherwise, (b) directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of votes) of the securities
of a corporation which have ordinary voting power for the election of directors (other than
securities having such power only by reason of the happening of a contingency) or a majority (by
percentage or voting power) of the outstanding ownership interests of a partnership or limited
liability company, or (c) acquires customers or customer lists and related assets from another
Person.



“Adjusted Base Rate” means, for any day, a fluctuating rate of interest per annum
equal to the higher of (a) the Prime Rate in effect for such day, (b) the sum of the Federal Funds
Effective Rate in effect for such day plus 1/2 of 1% per annum, and (c) in the case of Base Rate
Advances made in the circumstances set forth in Section 2.02(c)(iv), the Cost of Funds. “Cost of
Funds” means the Administrative Agent’s determination, made on each day, as to the effective cost
of its obtaining funds on such day for maintaining a Base Rate Advance, which shall be expressed as
a rate of interest per annum to be charged on each day from the date of such Base Rate Advance
until paid when due. Any change in the Adjusted Base Rate due to a change in the Prime Rate, the
Federal Funds Effective Rate, or the Cost of Funds shall be effective on the effective date of such
change in the Prime Rate, Federal Funds Effective Rate, or the Cost of Funds.



“Administrative Agent” means SG in its capacity as administrative agent for the
Lenders under the Loan Documents and any successor in such capacity appointed pursuant to
Section 9.06.



“Administrative Agent’s Account” means account no. 193852 maintained at SG, and is the
“Collateral Account” established and maintained pursuant to Section 7.07, in the name of
the Borrowers but under the sole dominion and control of, and exclusive right of withdrawal at the
direction of, the Administrative Agent and subject to the terms of this Agreement.



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



“Affiliate” of any Person, means any other Person that, directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under common control with,
such Person or any Subsidiary of such Person. The term “control” (including the terms “controlled
by” or “under common control with”) means the possession, directly or indirectly, of the power to
(a) vote or direct the voting of 10% or more of the outstanding shares of Voting Stock of such
Person or (b) direct or cause the direction of the management and policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.


 


2









 





“Agreement” means this Second Amended and Restated Credit Agreement dated as of
September 30, 2008 among the Borrowers, the Guarantors, the Lenders, and the Administrative Agent,
as it may be amended or modified and in effect from time to time.



“Applicable Lending Office” means (a) with respect to any Lender, the office, branch,
subsidiary, affiliate or correspondent bank of such Lender specified in its Administrative
Questionnaire or such other office, branch, subsidiary, affiliate or correspondent bank as such
Lender may from time to time specify to the Borrowers and the Administrative Agent from time to
time and (b) with respect to the Administrative Agent, the address specified for such Person on
Schedule 10.02 or to such other address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a notice to the other parties.



“Applicable Margin” means, for any day, with respect to Revolving Advances of any
Type, Swing Line Advance, letter of credit fees or commitment fees, the applicable percentage rate
per annum set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Swing Line	 	 	 	 	 	 	 	 	 	 	 
	Advance	 	 	Revolving Advance	 	 	 	 	 	 	 	 
	 	 	Federal	 	 	 	 	 	 	 	 	 	Letter	 
	 	 	Funds	 	 	Euro-	 	 	Base	 	 	 	 	 	 	of	 
	Prime	 	Effective	 	 	dollar	 	 	Rate	 	 	Commitment	 	 	Credit	 
	Rate	 	Rate	 	 	Advances	 	 	Advances	 	 	Fees	 	 	Fees	 
	 	 
	1.750%
	 	 	3.625	%	 	 	3.000	%	 	 	2.000	%	 	 	0.500	%	 	 	2.750	%






“Arranger” means SG in its capacity as lead arranger and sole bookrunner.



“Asset Disposition” or “Dispose” means the disposition, whether by sale,
lease, license, transfer, loss, damage, destruction, condemnation or otherwise, of any or all of
the Property of the Parent or any of its Subsidiaries other than (a) any sale or issuance of Equity
Interests of any of the Parent’s Subsidiaries to any Loan Party, (b) sales of inventory in the
ordinary course of business, (c) dispositions of assets having a fair market value of $2,000,000.00
or less individually or in the aggregate of $5,000,000.00 or less in any fiscal year of the Parent,
(d) dispositions of accounts to LDCs under guaranteed receivables agreements entered into in the
ordinary course of business and (e) dispositions of assets which have become obsolete or no longer
useful in the business of any Loan Party.


 


3









 





“Assignment and Acceptance” shall mean 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), and accepted by the Administrative Agent, in substantially the form of
Exhibit A or any other form approved by the Administrative Agent in its sole discretion and
the Borrowers, which consent by the Borrowers shall not be unreasonably withheld or delayed.



“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, 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
Parent and its Subsidiaries for the fiscal year ended June 30, 2005, June 30, 2006 and June 30,
2007 together with the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal year of the Parent and its Subsidiaries including the notes
thereto and including an unaudited reconciliation from GAAP to Non-GAAP Financial Reporting.



“Base Rate Advance” means a Revolving Advance that bears interest at a rate determined
by reference to the Adjusted Base Rate.



“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5
under the Exchange Act.



“Blocked Accounts” has the meaning set forth in Section 5.13(b).



“Borrowing” means a borrowing consisting of simultaneous Revolving Advances of the
same Type made, converted or continued on the same Business Day, and, in the case of Eurodollar
Advances, as to which a single Interest Period is in effect.



“Borrowing Base” means, as of any date of determination, an amount equal to the sum of
the following (without duplication), determined as of the date of the Borrowing Base Report then
most recently delivered pursuant to this Agreement, but subject to such additional eligibility
requirements and reserves as may be reasonably determined by the Administrative Agent after
consultation with the Borrowers (but not subject to the Borrowers’ approval thereof):



(a) an amount equal to 100% of cash and Cash Equivalents of the Borrowers and their
Subsidiaries in Dollars that are subject to an Acceptable Security Interest; plus



(b) 90% of Tier I Eligible Accounts; plus



(c) 80% of Tier II Eligible Accounts; plus



(d) 85% of Tier I Unbilled Eligible Accounts; plus


 


4









 





(e) 80% of Tier II Unbilled Eligible Accounts; plus



(f) 80% of the positive value of Eligible Exchange Accounts; plus



(g) 80% of the positive value of Imbalances; plus



(h) 85% of Eligible Inventory; plus



(i) 85% of Eligible LDC Residual Contract Rights; plus



(j) 80% of Undelivered Product Value; minus



(k) 120% of the Swap Termination Value owed by a Borrower or any of its Subsidiaries for any
Swap Contract between a Borrower or any of its Subsidiaries and a Swap Counterparty; minus



(l) 100% of First Purchaser Liens.



“Borrowing Base Availability” means the excess, if any, of the Borrowing Base over the
sum of the Revolving Advances, the Letter of Credit Exposure and the Swing Line Advances.



“Borrowing Base Report” means a certificate and schedule duly executed by a Financial
Officer of the Parent appropriately completed and in substantially the form of Exhibit B.



“Borrowing Date” means the date on which any Revolving Advance or Swing Line Advance
is made or any Letter of Credit is issued hereunder.



“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, New York and,
if such day relates to any Eurodollar Advance, means any such day on which dealings in Dollar
deposits are conducted by and between banks in the London interbank eurodollar market.



“Capital Expenditures” means all expenditures of any Person in respect of the purchase
or other acquisition, construction or improvement of any fixed or capital assets that are required
to be capitalized under GAAP on a balance sheet as property, plant, equipment or other fixed assets
or intangibles; provided, however that Capital Expenditures shall in any event exclude (a) normal
replacements and maintenance which are properly charged to current operations and (b) amounts
expended with the proceeds of insurance to repair or replace fixed or capital assets.



“Capital Lease” of a Person means any lease of any Property by such Person as lessee
that would, in accordance with GAAP, be required to be classified and accounted for as a capital
lease on the balance sheet of such Person.



“Cash Equivalents” means:



(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof;


 


5









 





(b) investments in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or
from Moody’s;



(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing
within one year from the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, the Administrative Agent or any
domestic office of any commercial bank organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus and undivided profits of not
less than $500,000,000.00;



(d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution satisfying
the criteria of clause (c) above; and



(e) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment
Company Act of 1940, as amended, substantially all of whose assets are invested in investments of
the type described in clauses (a) through (d) above.



“Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption of 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 (other than any
request, guideline or directive that provides that compliance is optional and that there is no
penalty or charge of any kind for failure to comply).



“Change of Control” means the occurrence of any of the following events:



(a) prior to the consummation of an Initial Public Offering, (i) the failure of Jeffrey Mayer
(the “Key Executive”) to be employed by the Parent on a full-time basis in his capacity as
President and Chief Executive Officer and involved in the day-to-day operations of the Parent and
its Subsidiaries and (ii) if such failure is due to death, accident, illness, or legal incapacity
of the Key Executive and the Key Executive is not replaced within 90 days after such failure with
an executive consented to by the Majority Banks in writing;



(b) the failure of either Borrower to be a Wholly-Owned Subsidiary of the Parent;



(c) except for the consummation of an Initial Public Offering, the direct or indirect sale,
transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or
a series of related transactions, of all or substantially all of the properties or assets of the
Parent and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)
of the Exchange Act, but excluding any employee benefit plan of the Parent or any of its
Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan);


 


6









 





(d) except for the consummation of an Initial Public Offering, the consummation of any
transaction (including any merger or consolidation) the result of which is that any “person” (as
defined above) (other than Sowood, Charterhouse Financial, Greenhill Capital Partners, Jeffrey
Mayer or Carol Roberta Artman-Hodge (or any of their Affiliates)) becomes the Beneficial Owner,
directly or indirectly, of more than 25% of the Voting Stock of the Parent, measured by voting
power rather than number of shares;



(e) prior to the consummation of an Initial Public Offering, Sowood fails to be the Beneficial
Owner, directly or indirectly, of at least 20% of the Voting Stock of the Parent;



(f) prior to the consummation of an Initial Public Offering, the first day on which a majority
of the members of the Board of Directors of the Parent are not Continuing Directors; or



(g) the Parent consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into, the Parent, in any such event pursuant to a transaction
in which any of the outstanding Voting Stock of the Parent or such other Person is converted into
or exchanged for cash, securities or other property, other than any such transaction where the
Voting Stock of the Parent outstanding immediately prior to such transaction is converted into or
exchanged for Voting Stock of the surviving or transferee Person constituting a majority of the
outstanding shares of such Voting Stock of such surviving or transferee Person (immediately after
giving effect to such issuance).



“Closing Date” means September 30, 2008.



“Code” means the United States Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time, and any successor statute and all rules and regulations
promulgated thereunder.



“Collateral” means all the “Collateral” as defined in any Security Document.



“Collecting Banks” has the meaning set forth in Section 5.13.



“Compliance Certificate” means a Compliance Certificate signed by a Financial Officer
of the Parent in substantially the form of the attached Exhibit C.



“Confidential Information Memorandum” means the Confidential Information Memorandum
dated August 2008 (together with all amendments and supplements thereto) and furnished to the
initial Lenders in connection with the syndication of the Revolving Advances made hereunder.



“Consolidated Current Assets” means, as to any Person at any date, all amounts which
would, in conformity with GAAP, be included under current assets (other than amounts owing to such
Person from an Affiliate (other than a Subsidiary of such Person) thereof) on a balance sheet of
such Person determined on a consolidated basis at such date.



“Consolidated Current Liabilities” means, as to any Person at any date, (a) all
amounts which would, in conformity with GAAP, be included under current liabilities on a balance
sheet of a Person plus (b) to the extent not included in the foregoing clause (a), all outstanding
Revolving Advances, Swing Line Advances, and Reimbursement Obligations, all determined on a
consolidated basis at such date.


 


7









 





“Consolidated EBITDA” means, for any period, without duplication, the sum of the
following for the Parent and its Subsidiaries on a consolidated basis, each calculated for such
period:



(a) Consolidated Net Income for such period of determination plus



(b) to the extent deducted in determining Consolidated Net Income, Consolidated Interest
Expense, charges against income for foreign, federal, state, and local taxes, depreciation
and amortization expense and other non-cash charges, extraordinary, unusual or non-recurring
expenses or losses, amortization or write off of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with letters of credit or Debt, and
any losses on sales of assets outside the ordinary course of business minus



(c) extraordinary or non-recurring gains for such period minus



(d) any gain realized upon the sale or other disposition of any assets of the Parent or any of
its Subsidiaries for such period (other than in the ordinary course of business) minus



(e) the income of any Person (other than Wholly-Owned Subsidiaries of the Parent) in which the
Parent or a Wholly-Owned Subsidiary of the Parent has an ownership interest except to the extent
such income is received by the Parent or such Wholly-Owned Subsidiary in a cash distribution during
such period, all as determined on a consolidated basis in accordance with GAAP, plus the
loss or minus



(f) the income of any Person accrued prior to the date it becomes a Subsidiary of the Parent
or is merged into or consolidated with the Parent or any of its Subsidiaries, minus



(g) non-cash gains (if the gain is the result of an overhedged position), losses or
adjustments under FASB Statement 133 as a result of changes in the fair market value of
derivatives, plus losses or minus gains



(h) from settled financial hedges with a term of one year or less for inventory before it is
sold to customers.



“Consolidated Interest Expense” means, for any period, the interest expense net of
interest income of the Parent and its Subsidiaries calculated on a consolidated basis in accordance
with GAAP for such period excluding, however, the amortization of upfront fees and discounts paid
in connection with this Agreement, the Existing Credit Agreement, the Senior Notes, the Master
Transaction Agreement dated as of August 1, 2006 between MxEnergy and SG, and the renewal and
replacement of the Master Transaction Agreement.



“Consolidated Net Income” means, for any period, (a) for all purposes other than
Section 6.17, the net income of the Parent and its Subsidiaries calculated on a consolidated basis
for such period after taxes, as determined in accordance with GAAP and (b) for purposes of Section
6.17 only, the result of the following for the Parent and it Subsidiaries on a consolidated basis,
each calculated for such period beginning with the fiscal period ending June 30, 2008:


(i) the net income after taxes, as determined in accordance with GAAP plus




(ii) non-cash losses to the extent they reduced Consolidated Net Income under FASB Statement
133 as a result of changes in the fair market value of derivatives minus



 


8









 





(iii) non-cash gains to the extent they increased Consolidated Net Income under FASB Statement
133 as a result of changes in the fair market value of derivatives plus losses or
minus gains



(iv) from settled financial hedges with a term of one year or less for inventory before it is
sold to customers.



“Consolidated Tangible Net Worth” means, as of any date of determination, for the
Parent and its Subsidiaries on a consolidated basis, (a) Shareholders’ Equity of the Parent and its
Subsidiaries on that date minus (b) the Intangible Assets of the Parent and its
Subsidiaries on that date, minus (c) assets that are the result of non-cash gains or
adjustments under FASB Statement 133 as a result of changes in the fair market value of
derivatives, plus (d) liabilities that are the result of non-cash losses or adjustments
under FASB Statement 133 as a result of changes in the fair market value of derivatives
minus (e) any Accounts due from any Affiliates (other than Subsidiaries) of the Parent
plus or minus (f) the Preferred Stock Adjustment, as applicable, plus (g)
the book value of customer accounts plus losses or minus gains (h) from settled
financial hedges with a term of one year or less for inventory before it is sold to customers for
the 12-month period ending as of such date plus (i) non-cash compensation expenses from
July 1, 2006 through such date to the extent included in the calculation of Consolidated Net Income
for such period.



“Consolidated Working Capital” means (a) Consolidated Current Assets of the Parent
(excluding all non-cash assets under FASB 133 and any accounts due from any Affiliates (other than
any Subsidiary) of the Parent) minus (b) Consolidated Current Liabilities of the Parent (excluding
non-cash obligations under FASB 133 and any accounts due from any Affiliates (other than any
Subsidiary) of the Parent) plus (c) any applicable Preferred Stock Adjustment to current
liabilities.



“Continue”, “Continuation”, and “Continued” each refers to a
continuation of Revolving Advances for an additional Interest Period upon the expiration of the
Interest Period then in effect for such Revolving Advances.



“Continuing Directors” means, as of any date of determination, any member of the Board
of Directors of the Parent who (a) was a member of such Board of Directors on the Closing Date or
(b) was nominated for election or elected to such Board of Directors with the approval of a
majority of the Continuing Directors who were members of such Board at the time of such nomination
or election.



“Convert”, “Conversion”, and “Converted” each refers to a conversion
of Revolving Advances of one Type into Revolving Advances of another Type pursuant to Section
2.02(b).


 


9









 





“Debt,” means, for any Person, 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 or other similar instruments;



(b) 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);



(c) Capital Leases;



(d) all obligations of such Person in respect of letters of credit, bankers’ acceptances, bank
guarantees, surety bonds or similar instruments which are issued upon the application of such
Person or upon which such Person is an account party or for which such Person is in any way liable;



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



(f) Off-Balance Sheet Liabilities;



(g) indebtedness secured by a Lien on Property now or hereafter owned or acquired 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 (provided, that if such Person has not assumed or otherwise become liable in respect of
such Debt, such Debt shall be deemed to be in an amount equal to the lesser of the amount of such
Debt and the fair market value of the Property encumbered by such Lien); and



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



For all purposes hereof, the Debt of any Person shall include the Debt 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, unless such Debt 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 Off-Balance Sheet Liability as of any date shall be deemed to be the
amount of Attributable Indebtedness in respect thereof as of such date.



“Default” means (a) an Event of Default or (b) any event or condition which with
notice or lapse of time or both would, unless cured or waived, become an Event of Default.



“Dollars” and “$” means the lawful money of the United States of America.



“Domestic Subsidiary” means a Subsidiary that is organized or incorporated under the
laws of the United States or a State thereof.



“Eligible Accounts” means, as at any date of determination, accounts payable in
Dollars of a Borrower or any of its Subsidiaries resulting from the sale of electricity or natural
gas in the United States of America:



(a) in which the Administrative Agent has an Acceptable Security Interest;


 


10









 





(b) that consist of valid, bona fide accounts receivable and contract receivables, each owed
to and owned by a Borrower or one of its Subsidiaries arising out or resulting from goods actually
sold and delivered or for services fully rendered by such Loan Party;



(c) that are payable within 30 days after the invoice date and not unpaid for more than 60
days after the due date specified in the original invoice or after the invoice date if no due date
was specified;



(d) that are otherwise eligible with respect to which the account debtor is owed a credit,
discount, allowance or other similar adjustment by a Borrower or one of its Subsidiaries, but only
to the extent such accounts are not subject to such credit, discount, allowance or other similar
adjustment;



(e) with respect to which the account debtor is not a Governmental Authority, unless, to the
extent required, such Borrower has, with respect to such accounts, complied with the Federal
Assignment of Claims Act of 1940 as amended (31 U.S.C. Section 3727 et seq.) or any applicable
statute or municipal ordinance of similar purpose and effect;



(f) with respect to which the account debtor is not an Affiliate of the Parent or a director,
officer, agent, stockholder or employee of the Parent or any of its Affiliates;



(g) that are not due from an account debtor (i) for which more than 50% of the aggregate
amount of accounts of such Person to the Borrowers and their Subsidiaries collectively has at the
time remained unpaid for more than 60 days after due date specified in the original invoice or
after the invoice date if no due date was specified or (ii) that is in default on any other Debt
owed by such Person to the Borrowers and their Subsidiaries, collectively;



(h) with respect to which there is no offset or counterclaim or unresolved dispute with the
respective account debtor (but only to the extent such accounts are not subject to such potential
offset or counterclaim or unresolved dispute);



(i) with respect to which no Borrower has mark-to-market exposure to the account debtor under
any Swap Contracts, including forward sales or purchases of gas, power, or another commodity, (but
only to the extent such accounts exceed such mark-to-market exposure, net of any letters of credit
or cash margin held by the account debtor to support such mark-to-market exposure);



(j) with respect to which the account debtor is the subject of no bankruptcy or other
insolvency proceeding;



(k) with respect to which the account debtor’s obligation to pay is unconditional and not
subject to a repurchase obligation or right to return or with respect to which the goods or
services giving rise to such account have been delivered (or performed, as applicable) and accepted
by such account debtor;



(l) with respect to which the account debtor is not located in New Jersey or any other state
denying creditors access to its courts in the absence of a Notice of Business Activities Report or
other similar filing, unless the applicable Borrower or Subsidiary has either qualified as a
foreign corporation authorized to transact business in such state or has filed a Notice of Business
Activities Report or similar filing with the applicable state agency for the then current year;


 


11









 





(m) with respect to which the account debtor is not a creditor of a Borrower or any of its
Subsidiaries; provided, however, that any such account shall only be ineligible as to that
portion of such account which is less than or equal to the amount owed by such Loan Party to such
Person;



(n) that, if no invoice has been issued for such accounts, have been included in a Borrowing
Base Report during not more than one calendar month, excluding the portion accumulated under budget
billing customer plans entered into in the ordinary course of business; and



(o) that have not been deemed to be ineligible for borrowing purposes by the Administrative
Agent in its reasonable credit judgment.



“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, and (c) any
other Person (other than a natural person) approved by the Administrative Agent in its sole
discretion, and, so long as no Event of Default exists, the Borrowers, in either case, such
approval not to be unreasonably withheld or delayed; provided that notwithstanding the
foregoing, “Eligible Assignee” shall not include any Borrower or any of any Borrower’s Affiliates
or Subsidiaries.



“Eligible Exchange Account” means the amount of any account or general intangible of a
Borrower or any of its Subsidiaries that:



(a) would otherwise be an Eligible Account except that the consideration due to such Loan
Party is natural gas or electricity;



(b) consists of an enforceable right of such Loan Party to receive natural gas or electricity
in exchange for the sale or trade of natural gas or electricity previously delivered to the
exchange debtor by such Loan Party;



(c) is evidenced by a written agreement enforceable against the exchange debtor thereof;



(d) is valued at the current market price as reasonably determined by the Administrative
Agent;



(e) if such account or general intangible is from a Tier II Account Party and all such
accounts and general intangibles from such Tier II Account Party exceeds $500,000.00, it is by a
Tier II Account Party listed on the attached Schedule 1.01(a) or pre-approved by the Majority
Lenders in their reasonable credit discretion or it is supported by Acceptable Credit Support;



(f) in the case of natural gas, provides for the delivery to such Loan Party of natural gas
that will constitute Eligible Inventory, and



(g) has not been otherwise determined by the Administrative Agent in its sole discretion to be
unacceptable.


 


12









 





“Eligible Inventory” means, as at any date of determination, the value (determined at
the current market value as reasonably determined by the Borrowers and agreed to by the
Administrative Agent) of all inventory owned by a Borrower or any of its Subsidiaries that is
subject to an Acceptable Security Interest. Without limiting the generality of the foregoing, the
following is not Eligible Inventory:



(a) inventory that does not consist of natural gas;



(b) inventory located at any location other than those identified pursuant to Section
4.24, as the same may be updated from time to time;



(c) inventory located at a leased location or with a warehouseman, bailee, processor, supplier
or similar third party in each case unless (i) the Administrative Agent has given its prior consent
thereto, (ii) a Lien waiver and collateral access agreement, in form and substance satisfactory to
the Administrative Agent has been delivered to the Administrative Agent, or (iii) rent reserves
reasonably satisfactory to the Administrative Agent have been established with respect thereto;



(d) inventory which the Administrative Agent determines in its reasonable credit judgment is
unacceptable for borrowing purposes due to quality or quantity;



(e) inventory produced in violation of the Fair Labor Standards Act and subject to the
so-called “hot goods” provisions contained in Title 29 U.S.C. 215 (a)(i) or any replacement
statute;



(f) inventory located at a vendor’s location or with a consignee;



(g) inventory with respect to which there is an unresolved claim or dispute with the
respective LDC or other Person that has any contractual rights with respect to such inventory (but
only to the extent of the amounts the subject of the unresolved claim or dispute); and



(h) inventory that has been specifically reserved against by a Borrower or any of its
Subsidiaries.



“Eligible LDC Residual Contract Right” means, as at any date of determination, the
value (determined at the current market value as reasonably determined by the Borrowers and agreed
to by the Administrative Agent) of a Borrower’s or any of its Subsidiaries’ enforceable right to
receive payment for its natural gas that an LDC holds, or to obtain the return of its natural gas
from, an LDC (a) that is subject to an Acceptable Security Interest, (b) that is approved by the
Administrative Agent in its sole discretion, and (c) with respect to which there is no offset or
counterclaim or unresolved claim or dispute with such LDC (but only to the extent of the amounts of
such offset or counterclaim or unresolved claim or dispute).



“End User” means a retail residential or commercial or industrial buyer of natural gas
or electricity from a Borrower or any of its Subsidiaries in deregulated energy markets.


 


13









 





“Environmental Claim” means any allegation, notice of violation, action, lawsuit,
claim, demand, judgment, order or proceeding by any Governmental Authority or any Person for
liability or damage, including, without limitation, personal injury, property damage, contribution,
indemnity, direct or consequential damages, damage to the environment, nuisance, pollution, or
contamination, or for fines, penalties, fees, costs, expenses or restrictions arising under or
otherwise related to an obligation under Environmental Law.



“Environmental Law” means all former, current and future Federal, state, local and
foreign laws (including common law), treaties, regulations, rules, ordinances, codes, decrees,
judgments, directives, orders (including consent orders), and agreements in each case, relating to
protection of the environment, natural resources, human health and safety or the presence,
Release of, or exposure to, Hazardous Materials, or the generation, manufacture, processing,
distribution, use, treatment, storage, transport, recycling or handling of, or the arrangement for
such activities with respect to, Hazardous Materials.



“Environmental Liability” shall mean all liabilities, obligations, damages, losses,
claims, actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including
administrative oversight costs, natural resource damages and remediation costs), whether contingent
or otherwise, arising out of or relating to (a) compliance or non-compliance with 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 of any Hazardous
Materials or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.



“Environmental Permit” means any permit, license, order, approval or other
authorization under any Environmental Law.



“Equity Interests” shall mean shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a trust or other
equity interests in any person, or any obligations convertible into or exchangeable for, or giving
any person a right, option or warrant to acquire, such equity interests or such convertible or
exchangeable obligations.



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



“ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Parent 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 Parent 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 Parent or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in 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 Parent or
any ERISA Affiliate.


 


14









 





“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D.



“Eurodollar Advance” means a Revolving Advance that bears interest based on the
Eurodollar Rate.



“Eurodollar Rate” means, with respect to a Eurodollar Advance for the relevant
Interest Period, the applicable British Bankers’ Association Interest Settlement Rate for deposits
in Dollars appearing on Page 3750 of the Dow Jones Markets Screen as of 11:00 a.m. (London, England
time) two Business Days prior to the first day of such Interest Period, and having a maturity equal
to such Interest Period, provided that if the Dow Jones Markets Screen is not available to
the Administrative Agent for any reason, then the applicable Eurodollar Rate for the relevant
Interest Period shall instead be the rate determined by the Administrative Agent to be the rate at
which SG or one of its Affiliate banks offers to place deposits in Dollars with first class banks
in the London interbank market at approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, in the approximate amount of SG’s relevant Eurodollar
Advance and having a maturity equal to such Interest Period.



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



“Events of Default” has the meaning set forth in Section 7.01.



“Excepted Liens” means:



(a) Liens for taxes, assessments or governmental charges or levies on its Property if the same
shall not at the time be delinquent or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings diligently conducted and for which adequate
reserves in accordance with and to the extent required by GAAP shall have been set aside on its
books;



(b) Liens imposed by law, or arising by operation of law, including, without limitation,
carriers’, warehousemen’s, landlord’s, mechanics’, materialmen’s, and other similar liens arising
in the ordinary course of business which secure payment of obligations not more than 30 days past
due or which are being contested in good faith by appropriate proceedings diligently conducted and
for which adequate reserves shall have been set aside on the books of the applicable Person;


 


15









 





(c) Liens incurred and pledges or deposits made in the ordinary course of business in
connection with worker’s compensation, unemployment insurance or other social security or
retirement benefits, or similar legislation, other than any Lien imposed by ERISA;



(d) deposits to secure the performance of bids and leases (other than Debt), statutory
obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds
and other obligations of a like nature incurred in the ordinary course of business;



(e) 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;



(f) Liens in the Collateral (which Liens may be superior to the Administrative Agent’s Lien in
the Collateral) provided by the Intercreditor Agreement; and



(g) Liens on up to $40,000,000.00 in the aggregate of cash and Cash Equivalents (i) deposited
by a Borrower or any of its Subsidiaries in margin accounts with or on behalf of futures contract
brokers or paid over to other counterparties or (ii) pledged or deposited as collateral to a
contract counterparty by a Borrower or any of its Subsidiaries, in the case of clause (i)
or (ii), to secure obligations with respect to (A) contracts for trading activities in the
ordinary course of business and contracts (including physical delivery, option (whether cash or
financial), exchange, swap and futures contracts) for the purchase, transmission, distribution,
sale, lease or hedge of any energy-related commodity or service or (B) commodity price management
contracts or derivatives.



“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank, the Swing Line Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrowers 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 of America or any similar tax imposed by any other jurisdiction in which the
applicable Lender is located and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 2.15), 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 2.11(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
Borrowers with respect to such withholding tax pursuant to Section 2.11(a).



“Existing Credit Agreement” has the meaning set forth in the recitals.


 


16









 





“Federal Funds Effective Rate” means, for any day, a fluctuating interest 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
for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (New York time) on
such day on such transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.



“Federal Reserve Board” means the Board of Governors of the Federal Reserve System or
any of its successors.



“Fee Letters” means (a) the letter agreement dated as of July 24, 2008 among the
Borrowers, the Administrative Agent and the Arranger and (b) the letter agreement dated as of the
Closing Date by the Borrowers to the Lenders.



“Financial Officer” for any Person means the chief financial officer, treasurer or
senior financial officer of such Person, as applicable.



“First Purchaser Lien” means all accounts and inventory which are subject to a Lien
securing the obligations of a “first purchaser” of oil and gas production as provided in Texas Bus.
& Com. Code Section 9.343, or any other similar law in any other jurisdiction, except for inventory
which has been purchased by a Borrower or any of its Subsidiaries pursuant to a Letter of Credit
issued pursuant to this Agreement.



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



“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.



“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 United States generally accepted accounting principles applied on a
consistent basis.



“Governmental Authority” means the government of the United States of America 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).




 


17











 




“Governmental Proceedings” means any action or proceedings by or before any
Governmental Authority, including, without limitation, the promulgation, enactment or entry of any
Legal Requirement.



“Guarantors” means (a) the Parent and each of its Subsidiaries listed on Schedule
1.01(b) and (b) any other Person that becomes a guarantor of all or a portion of the
Obligations.



“Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any Debt payable 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 Debt or to purchase (or to advance or supply
funds for the purchase of) any security for the payment of such Debt, (ii) to purchase or lease
property, securities or services for the purpose of assuring the owner of such Debt of the payment
or performance of such Debt, (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 Debt, or (iv) entered into for the purpose of
assuring in any other manner the owner of such Debt of the payment or performance thereof or to
protect such owner against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Debt of any other Person, whether or not such Debt is assumed by
such Person; provided, however, that the term “Guarantee” shall not include
endorsements for collection or deposit in the ordinary course 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.



“Hazardous Material” means (a) any petroleum products or byproducts and all other
hydrocarbons, coal ash, radon gas, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, chlorofluorocarbons and all other ozone-depleting substances and (b) any chemical,
material, substance or waste that is prohibited, limited or regulated by or pursuant to any
Environmental Law.



“Imbalances” means, for any period, the difference between the amount of natural gas
or electricity delivered by the Borrowers and their Subsidiaries to an LDC during such period and
the amount of natural gas or electricity consumed by End Users that such LDC supplies during the
same period that are subject to an Acceptable Security Interest. For the purposes of calculating
the Borrowing Base, (a) positive Imbalances will only be included to the extent that those
Imbalances are reconciled by the applicable LDC on a monthly basis in a written report that such
LDC generates and is timely delivered to the Administrative Agent and (b) negative Imbalances will
be offset against (i) first, the maximum amount available to be drawn under a Letter of Credit or
surety bond issued for the benefit of such LDC and (ii) second, Eligible Residual LDC Contract
Rights, Eligible Accounts and Eligible Inventory of the Borrowers and their Subsidiaries controlled
by or in the possession of a LDC.


 


18









 





“Indemnified Taxes” means any Taxes other than Excluded Taxes.



“Initial Public Offering” means an underwritten public offering of shares of the
Parent wherein the aggregate net proceeds to the Parent are at least $50,000,000.00.



“Intangible Assets” means assets that are considered to be intangible assets under
GAAP, including customer lists, goodwill, computer software (other than systems software if
accounted as a tangible asset under GAAP), copyrights, trade names, trademarks, patents,
franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized
research and development costs.



“Intercreditor Agreement” means the Intercreditor Agreement dated as of December 19,
2005 among the Loan Parties, Virginia Power Energy Marketing, Inc., as Secured Counterparty, Sowood
and the Administrative Agent, as amended.



“Interest Period” means, for each Eurodollar Advance comprising part of a Borrowing,
the period commencing on the date of such Eurodollar Advance or the date of the Conversion of any
existing Base Rate Advance into such Eurodollar Advance and ending on the last day of the period
selected by the applicable Borrower pursuant to the provisions below and Section 2.02 and,
thereafter, each subsequent period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the applicable Borrower pursuant to the
provisions below and Section 2.02. The duration of each such Interest Period shall be one,
two, three, or six months (or, if available to all of the Lenders, nine or 12 months), in each case
as the applicable Borrower may select; provided, however, that:



(a) Interest Periods commencing on the same date for Revolving Advances by each Lender
comprising part of the same Borrowing shall be of the same duration;



(b) whenever the last day of any Interest Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided that if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day;



(c) any Interest Period which 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 in which it would have
ended if there were a numerically corresponding day in such calendar month; and



(d) no Borrower may select any Interest Period for any Revolving Advance which ends after the
Maturity Date.



“Investment” of any Person means any investment of such Person so classified under
GAAP, and whether or not so classified, any loan, advance (other than prepayments or deposits made
in the ordinary course of business), extension of credit that constitutes Debt of the Person to
whom it is extended, any direct or indirect guaranty of the obligations of such Person, or
contribution of capital by such Person; and any stocks, bonds, mutual funds, partnership interests,
notes (including structured notes), debentures or other securities owned by such Person (but
excluding capital expenditures of such Person determined in accordance with GAAP).


 


19









 





“Investment Grade Rating” of a Person means that such Person has a minimum unenhanced
investment grade rating on its senior unsecured debt securities of at least BBB- as determined by
S&P, and Baa3 as determined by Moody’s.



“Issuing Bank” means SG and any successor Issuing Bank pursuant to Section
2.14(h).



“LC Cash Collateral Account” means special cash collateral accounts pledged by each
Borrower to the Administrative Agent for the ratable benefit of the Secured Parties containing cash
deposited pursuant to Section 2.14(e), 7.02 or 7.03 to be maintained at the
Administrative Agent’s office in accordance with Section 2.14(g) and be invested in the
Administrative Agent’s reasonable discretion.



“LDC” means a local distribution company that supplies natural gas or electricity
beyond the “citygate” or other specified delivery point to the End User on behalf of a Borrower or
any of its Subsidiaries and includes, without limitation, those LDCs set forth on Schedule
1.01(c).



“Legal Requirement” means, as to any Person, any law, statute, ordinance, decree,
award, requirement, order, writ, judgment, injunction, rule, regulation (or official interpretation
of any of the foregoing) of, and the terms of any license or permit issued by, any Governmental
Authority which is binding on such Person.



“Lenders” means the lenders listed on the signature pages of this Agreement and any
other person that has become a party hereto pursuant to an Assignment and Acceptance (other than
any such person that has ceased to be a party hereto pursuant to an Assignment and Acceptance).




“Letter of Credit” means any letter of credit issued hereunder.



“Letter of Credit Application” means (a) a request for issuance of a Letter of Credit
in substantially the form of the attached Exhibit D and (b) 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
Issuing Bank.



“Letter of Credit Documents” means, with respect to any Letter of Credit, such Letter
of Credit, the related Letter of Credit Application and any agreements, documents, and instruments
entered into in connection with or relating to such Letter of Credit.



“Letter of Credit Exposure” means, at any time, the sum of (a) the aggregate undrawn
maximum face amount of each Letter of Credit at such time and (b) the aggregate unpaid amount of
all Reimbursement Obligations owing with respect to such Letters of Credit at such time.



“Letter of Credit Obligations” means any obligations of the Borrowers under this
Agreement in connection with the Letters of Credit, including the Reimbursement Obligations.



“Leverage Ratio” means, as of any date of determination, the ratio of (a) Total Funded
Debt on such date, to (b) Consolidated EBITDA for the period of the twelve months most recently
ended for which financial statements are available. For purposes of calculating the Leverage
Ratio, (i) under Section 6.21, Total Funded Debt shall be based on the month-end
average for the last 12 months most recently ended, and (ii) under Section 6.22, Total
Funded Debt shall be determined as of the end of each month.


 


20









 





“Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien
(statutory or other), pledge, assignment, preference, deposit arrangement, encumbrance, charge,
security interest, priority or other security or preferential arrangement of any kind or nature
whatsoever, whether voluntary or involuntary in or on such asset, (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the foregoing) relating to
such asset and (c) in the case of securities, any purchase option, call or similar right of a third
party with respect to such securities.



“Loan Documents” means this Agreement, any Notes issued pursuant to Section
2.02(g), the Letter of Credit Documents, the Security Documents, the Fee Letters and each other
agreement, instrument or document executed by any Loan Party or any of their respective officers at
any time in connection with this Agreement, all as amended, restated, supplemented or modified from
time to time.



“Loan Party” means any Borrower, the Parent, any Guarantor and any other Person (other
than the Administrative Agent or any Lender) that is or becomes a party to any Loan Document.



“Majority Lenders” means, as of any date of determination, (a) before the Revolving
Commitments terminate, Lenders holding at least 51% of the then aggregate Revolving Commitments and
(b) thereafter, Lenders holding at least 51% of the aggregate unpaid principal amount of the
Revolving Advances and participation interests in the Letter of Credit Exposure at such time.



“Material Adverse Effect” shall mean a material adverse effect upon (a) the business,
results of operations, prospects, Properties or condition (financial or otherwise) of the Parent
and its Subsidiaries taken as a whole, (b) the ability of any Borrower or the Loan Parties taken as
a whole to perform its or their respective material obligations under the Loan Documents to which
it is a party or (c) the validity or enforceability against any Loan Party of any of the Loan
Documents or any of the material rights or remedies of the Administrative Agent or the Lenders
thereunder.



“Material Contracts” means as of any date of determination, (a) each of the contracts
listed on Schedule 1.01(e), (b) any other similar agreement that supersedes or replaces the
agreement described in clause (a) and (c) any contract of a Borrower or its Subsidiary with a LDC
that provides for more than (i) 10,000 residential End User accounts or (ii) 1,000 commercial or
industrial End User accounts.




“Maturity Date” means July 31, 2009.



“Maximum Rate” means the maximum nonusurious interest rate under applicable law
(determined under such laws after giving effect to any items which are required by such laws to be
construed as interest in making such determination, including without limitation if required by
such laws, certain fees and other costs).


 


21









 






“Moody’s” means Moody’s Investors Service, Inc.



“Multiemployer Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Parent 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.



“Non-GAAP Financial Reporting” means financial reporting in accordance with GAAP that
has been adjusted to exclude (a) non-cash gains, losses or adjustments under FASB Statement 133,
(b) settled hedge amounts related to purchases of inventory prior to the inventory being sold to
the end customer, and (c) other non-cash charges.



“Note” means a promissory note made by the Borrowers in favor of a Lender evidencing
Revolving Advances made by such Lender substantially in the form of Exhibit E.



“Notice of Borrowing” means a notice of borrowing in the form of the attached
Exhibit F signed by a Responsible Officer of the applicable Borrower.



“Notice of Conversion or Continuation” means a notice of conversion or continuation in
the form of the attached Exhibit G signed by a Responsible Officer of the applicable
Borrower.



“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
Revolving Advance, Swing Line Advance, Letter of Credit or any Swap Contract to which a Lender or
its Affiliate is a party, 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 law relating to bankruptcy, insolvency or reorganization or
relief of debtors naming such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding.



“Off-Balance Sheet Liability” of a Person means (a) any repurchase obligation or
liability of such Person with respect to accounts or notes receivable sold by such Person, (b)
Synthetic Lease Obligations, or (c) any obligation arising with respect to any other transaction
which is the functional equivalent of or takes the place of borrowing but which does not constitute
a liability on the balance sheets of such Person, other than any lease that constitutes an
Operating Lease.



“Operating Lease” of a Person means any lease of Property (other than a Capital Lease)
by such Person as lessee which has an original term (including any required renewals and any
renewals effective at the option of the lessor) of one year or more.



“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.


“Parent” means MxEnergy Holdings Inc.



 


22









 






“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.




“Permitted Liens” has the meaning set forth in Section 6.01.



“Person” means and includes natural persons, corporations, limited partnerships,
general partnerships, limited liability companies, limited liability partnerships, joint stock
companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts,
business trusts or other organizations, whether or not legal entities, and governments and agencies
and political subdivisions thereof.



“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 Parent or any ERISA Affiliate or to which the Parent 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.



“Pledge Agreement” means the First Amended and Restated Pledge Agreement in
substantially the form of Exhibit H among one or more of the Loan Parties and the
Administrative Agent for the benefit of the Secured Parties.



“Preferred Stock Adjustment” means, beginning with the fiscal period ending June 30,
2008:



(a) before a holder of the Parent’s preferred stock exercises its right to request a
redemption of such preferred stock, (i) the amount for such preferred stock on the Parent’s
consolidated balance sheet (A) excluding accrued dividends on such preferred stock, shall be
treated as equity for the calculation of Consolidated Tangible Net Worth and (B) including the
accrued dividends on such preferred stock, shall not be treated as Total Funded Debt or a current
liability, and (ii) the accrued dividends on such preferred stock shall not increase or decrease
Consolidated Tangible Net Worth and



(b) after a holder of the Parent’s preferred stock exercises its right to request a redemption
of such preferred stock, the amount for such preferred stock on the Parent’s consolidated balance
sheet (i) if a current liability, shall be treated as a current liability and as Total Funded Debt,
(ii) if a long-term liability, shall be treated as Total Funded Debt, and (iii) if not a liability,
shall be treated as equity for the calculation of Consolidated Tangible Net Worth.



“Prime Rate” means a fluctuating rate of interest per annum as shall be in effect from
time-to-time equal to the prime rate of interest publicly announced by the Administrative Agent
from time to time as its prime rate in effect at its principal office in New York City, whether or
not either Borrower has notice thereof, when and as said prime rate changes.



“Projections” means the Parent’s forecasted consolidated annual with monthly
breakdowns: (a) balance sheets; (b) profit and loss statements; (c) cash flow statements; and (d)
capitalization statements, in each case for fiscal years 2008, 2009 and 2010, together with
supporting details.


 


23









 





“Property” of any Person means any interest of such Person in any property or asset
(whether real, personal or mixed, tangible or intangible).



“Pro Rata Share” means, with respect to each Lender at any time, (a) before the
Revolving Commitments terminate, the ratio (expressed as a percentage) of such Lender’s Revolving
Commitment to the aggregate Revolving Commitments of all the Lenders at such time and (b)
thereafter, the ratio (expressed as a percentage) of such Lender’s aggregate outstanding Revolving
Advances at such time to the aggregate outstanding Revolving Advances of all the Lenders at such
time. The initial Pro Rata Share of each Lender is set forth opposite 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.



“Qualifying Supplier Letter of Credit” means a Letter of Credit supporting the
physical purchase of gas or electricity by a Borrower in substantially the form of the attached
Exhibit J or other form acceptable to the Administrative Agent.



“Regulations T, U, X and D” means Regulations T, U, X, and D of the Federal Reserve
Board, as the same is from time-to-time in effect, and all official rulings and interpretations
thereunder or thereof.



“Reimbursement Obligations” means all of the obligations of the Borrowers to reimburse
the Issuing Bank for amounts paid by the Issuing Bank under Letters of Credit as established by the
Letter of Credit Applications and Section 2.14(c).



“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.



“Release” means any release, spill, emission, leaking, dumping, injection, pouring,
deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or
within or upon any building, structure, facility or fixture.




“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA.



“Responsible Officer” for any Person means, the Chief Executive Officer, President,
Chief Financial Officer, any Executive or Senior Vice President, Vice President, Treasurer or any
other member of senior management of such Person.



“Restricted Payment” means: (a) the declaration or making by the Parent or any
Subsidiary of any dividend or other distribution (whether in cash, securities or other property)
with respect to any Equity Interest of such Person; (b) 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 Equity Interests in the
Parent or any Subsidiary or any option, warrant or other right to acquire any such Equity Interests
in the Parent or any Subsidiary; (c) any payment of principal of, premium, if any, or interest on,
any Subordinated Indebtedness; and (d) any management fee, consulting fee, advisory fee, investment
banking or transaction fee or commission, bonus, salary, or similar remuneration paid or payable,
or any loans, advances or similar investments made, to any
Affiliate of the Parent or any payment to any such Affiliate with respect to any allocation of
overhead costs and expenses, excluding salaries, bonuses and commissions payable to officers,
directors and employees and directors’ fees and executive compensation and benefits, in each case,
payable in the ordinary course of business consistent with past practice.


 


24









 





“Revolving Advance” means a loan by a Lender to a Borrower as part of a Borrowing and
refers to a Base Rate Advance or a Eurodollar Advance.



“Revolving Commitment” means, as to each Lender, its obligation to (a) make Revolving
Advances to the Borrowers pursuant to Section 2.01, (b) purchase participation in L/C
Obligations pursuant to Section 2.14(b) and (c) purchase participations in Swing Line
Advances pursuant to Section 2.01(b), 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.
The initial aggregate amount of the Revolving Commitments on the Closing Date is $255,000,000.00.



“Risk Management Policy” has the meaning set forth in Section 3.01(a)(xiii) and
includes any amendment thereto approved by the Administrative Agent in its sole discretion.



“S&P” means Standard & Poor’s Rating Agency Group, a division of Mc-Graw Hill
Companies, Inc., or any successor that is a national credit rating organization.




“SEC” means the Securities and Exchange Commission, and any successor entity.




“Secured Counterparty” has the meaning set forth in the Intercreditor Agreement.



“Secured Counterparty Contracts” means any gas supply contract or hedging arrangements
with a Secured Counterparty.




“Secured Counterparty Event” means:



(a) in the case of a Secured Counterparty for which any Borrower has received a guaranty from
a Secured Counterparty Parent that has an Investment Grade Rating, the failure of such Secured
Counterparty to be a Wholly-Owned Subsidiary of the Secured Counterparty Parent;



(b) (i) for any Secured Counterparty that has provided a guaranty of its Secured Counterparty
Parent to a Borrower, such Borrower fails to maintain the guaranty of such Secured Counterparty
Parent or (ii) a Secured Counterparty that has not delivered a guaranty of its Secured Counterparty
Parent or a Secured Counterparty Parent that has delivered a guaranty for such Secured Counterparty
to a Borrower fails to have an Investment Grade Rating;



(c) the mark-to-market exposure of a Secured Counterparty to a Borrower for which such
Borrower has received a guaranty from a Secured Counterparty Parent exceeds the amount of such
guaranty; or



(d) an event of default or termination event, however described or defined, with respect to a
Secured Counterparty shall occur under a Secured Counterparty Contract.


 


25









 





“Secured Counterparty Parent” means a Person that is the sole direct or indirect owner
of the Equity Interests of a Secured Counterparty.



“Secured Parties” means the Administrative Agent, the Lenders, the Issuing Bank, the
Swing Line Lender, the Swap Counterparties and the beneficiaries of each indemnification obligation
undertaken by any Loan Party under any Loan Document.



“Security Agreement” means the First Amended and Restated Security Agreement in
substantially the form of Exhibit I among one or more of the Loan Parties and the
Administrative Agent for the benefit of the Secured Parties, and each other document, instrument or
agreement executed by any Loan Party in connection therewith in order to comply with the Legal
Requirements of any jurisdiction other than the United States of America or any state thereof.



“Security Documents” means the Security Agreement, the Pledge Agreement and each other
document, instrument or agreement executed in connection therewith or otherwise executed in order
to secure all or a portion of the Obligations.



“Senior Notes” means the Parent’s Floating Rate Senior Notes due 2011 issued under the
Indenture dated as of August 4, 2006 among the Parent, the guarantors party thereto, and Law
Debenture Trust Company of New York, as Trustee.




“SG” means Société Générale.



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



“Sowood” means Denham Commodity Partners Fund LP, a Delaware limited partnership
formerly known as Sowood Commodity Partners Fund LP.




“Sowood Document” has the meaning set forth in the Intercreditor Agreement.



“Subordinated Indebtedness” means any Debt of the Parent or any of its Subsidiaries
(including the Borrowers) that is contractually subordinated to the Obligations on terms and in
form and substance reasonably acceptable to the Administrative Agent.



“Subsidiary” of a Person means any corporation, association, partnership or other
business entity of which more than 50% of the outstanding Equity Interests having by the terms
thereof ordinary voting power under ordinary circumstances to elect a majority of the board of
directors or Persons performing similar functions (or, if there are no such directors or Persons,
having general voting power) of such entity (irrespective of whether at the time Equity Interests
of any other class or classes of such entity shall or might have voting power upon the occurrence
of any contingency) is at the time directly or indirectly owned or controlled by such Person, by
such Person and one or more Subsidiaries of such Person or by one or more Subsidiaries of such
Person. Unless otherwise indicated herein, each reference to the term “Subsidiary” shall mean a
Subsidiary of the Parent.


 


26









 





“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, commodity futures 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 Counterparty” means any Lender or any Affiliate thereof that is party to a Swap
Contract with a Borrower or one of its Subsidiaries.



“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 2.01(b).



“Swing Line Lender” means SG in its capacity as provider of Swing Line Advances, or if
SG shall resign as Swing Line Lender, another Lender selected by the Administrative Agent and
reasonably acceptable to the Borrowers.




“Swing Line Advance” has the meaning specified in Section 2.01(b)(i).



“Swing Line Sublimit” means $25,000,000.00. The Swing Line Sublimit is part of, and
not in addition to, the Revolving Commitments.



“Synthetic Lease Obligation” means 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.


 


27









 





“Tier I Account Party” means an account debtor (a) that has an Investment Grade
Rating, (b) whose obligations with respect to Eligible Accounts owing to a Borrower is guaranteed
by a Person with an Investment Grade Rating or supported with Acceptable Credit Support, or (c)
that is guaranteed by an LDC or is an LDC, in each case otherwise approved by the Administrative
Agent in its reasonable credit discretion.




“Tier I Eligible Account” means an Eligible Account due from a Tier I Account Party.



“Tier I Unbilled Eligible Account” means an Eligible Account due from a Tier I Account
Party, the invoice for which has not yet been issued by or on behalf of the applicable Borrower or
one of its Subsidiaries.




“Tier II Account Party” means any account debtor that is not a Tier I Account Party.



“Tier II Eligible Account” means an Eligible Account due from a Tier II Account Party
and, if the aggregate amount of all such Eligible Accounts from such Tier II Account Party are
greater than $500,000.00, then the Majority Lenders shall have approved in their reasonable credit
discretion any amount in excess of $500,000.00.



“Tier II Unbilled Eligible Account” means an Eligible Account due from a Tier II
Account Party, the invoice for which has not yet been issued by or on behalf of the applicable
Borrower or one of its Subsidiaries.



“Total Funded Debt” means, as of any date of determination, for the Parent 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 (i) Obligations hereunder,
(ii) obligations under the Senior Notes and (iii) obligations under the Sowood Documents
outstanding on the last Business Day of the month) and all obligations evidenced by bonds,
debentures, notes, loan agreements or other similar instruments, (b) all purchase money Debt,
(c) all direct obligations arising under 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, (f) without duplication, all Guarantees (but only to the
extent required to be recorded as a liability on the consolidated financial statements of the
Borrower pursuant to GAAP) with respect to outstanding Debt of the types specified in clauses (a)
through (e) above of Persons other than the Parent or any Subsidiary, (g) any applicable Preferred
Stock Adjustment, and (h) all Debt 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 Parent or a Subsidiary is a general partner or joint
venturer, unless such Debt is expressly made non-recourse to the Parent or such Subsidiary.




“Type” has the meaning set forth in Section 1.04.



“UCC” means the Uniform Commercial Code as in effect on the date hereof in the State
of New York, as amended from time to time, and any successor statute.


 


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“Undelivered Product Value” means an amount equal to the undrawn face amount of all
Qualifying Supplier Letters of Credit for which the gas or electricity has not yet been physically
delivered to a Borrower, and which, in the case of natural gas, will become Eligible Inventory upon
delivery to a Borrower or will result in an Eligible Account Receivable or Eligible Exchange
Receivable upon delivery to a Person other than a Borrower. Values included in this category,
Undelivered Product Value, cannot simultaneously be included in other Borrowing Base categories.



“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.



“U.S. Withholding Taxes” means any Taxes imposed by way of deduction or withholding by
the United States federal government.



“Voting Stock” means, with respect to any Person, Equity Interests of such Person of
any class or classes, the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of members of the Board of Directors (or Persons performing
similar functions) of such Person.



“Wholly-Owned Subsidiary” of any Person shall mean a subsidiary of such Person of
which Equity Interests representing 100% of the Equity Interests are, at the time any determination
is being made, owned, controlled or held by such Person or one or more Wholly-Owned Subsidiaries of
such Person or by such Person and one or more Wholly-Owned Subsidiaries of such Person.



Section 1.02 Computation of Time Periods. In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each means “to but excluding”.




Section 1.03 Accounting Terms.



(a) For purposes of this Agreement, all accounting terms not otherwise 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 Annual Financial Statements.



(b) If at any time any Accounting Change (as defined below) would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either the Borrowers or the
Majority Lenders shall so request, the Administrative Agent, the Lenders and the Borrowers 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 Majority 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 Borrowers 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
change in GAAP. “Accounting Changes” means: (A) changes in accounting principles required by GAAP
and implemented by the Parent; (B) changes in accounting principles recommended by the Parent’s
accountants; and (C) changes in carrying value of the Parent’s or any of its Subsidiaries’ assets,
liabilities or equity accounts resulting from any adjustments that, in each case, were applicable
to, but not included in, the Audited Financial Statements.


 


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(c) In addition, all calculations and defined accounting terms used herein shall, unless
expressly provided otherwise, when referring to any Person, refer to such Person on a consolidated
basis and mean such Person and its consolidated subsidiaries.



Section 1.04 Types of Advances. Revolving Advances are distinguished by “Type”. The
“Type” of a Revolving Advance refers to the determination whether such Revolving Advance is a
Eurodollar Advance or a Base Rate Advance, each of which constitutes a Type.



Section 1.05 Miscellaneous. 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 (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein,”
“hereof” and “hereunder,” and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement, (e) any reference to any law or regulation herein
shall, unless otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time and (f) 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.


 


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ARTICLE II




THE ADVANCES





Section 2.01 The Advances.



(a) Revolving Advances. Each Lender severally agrees, on the terms and conditions set
forth in this Agreement, to make Revolving Advances to the Borrowers from time-to-time on any
Business Day before the Maturity Date in an aggregate amount up to but not to exceed at any time
outstanding (i) the lesser of (A) its Revolving Commitment and (B) its Pro Rata Share of the
Borrowing Base minus (ii) such Lender’s Pro Rata Share of the Letter of Credit Exposure and the
outstanding Swing Line Advances; provided however that the aggregate outstanding
principal amount of the sum of (x) all Revolving Advances plus (y) the Letter of Credit Exposure
plus (z) the Swing Line Advances shall not at any time exceed the lesser of (1) aggregate amount of
the Revolving Commitments and (2) the Borrowing Base. Each Revolving Borrowing shall be in an
aggregate amount not less than $2,000,000.00 and in integral multiples of $1,000,000.00 in excess
thereof and shall consist of Revolving Advances of the same Type made on the same day by the
Lenders ratably according to their respective Revolving Commitments. Within the limits of each
Lender’s Revolving Commitment, each Borrower may from time-to-time borrow, prepay pursuant to
Section 2.07(b) and reborrow under this Section 2.01(a).




(b) Swing Line Advances.




(i) On the terms and conditions set forth in this Agreement, the Swing Line Lender
agrees to, from time-to-time on any Business Day before the Maturity Date, make advances
(“Swing Line Advances”) in Dollars to the Borrowers for periods of up to seven
Business Days (but may be rolled over for an additional seven Business Day period upon the
due date of the Swing Line Advance, except that no Swing Line Advance may mature after the
Maturity Date), bearing interest at either the Prime Rate plus the Applicable Margin or the
Federal Funds Effective Rate plus the Applicable Margin, as such Borrower elects, in an
amount not less than $1,000,000.00 (or if less, in the aggregate amount of the remaining
unused portion of the aggregate Revolving Commitments) and in integral multiples of
$500,000.00 in excess thereof and in an aggregate principal amount not to exceed the Swing
Line Sublimit outstanding at any time; provided that the sum of (A) the aggregate
principal amount of outstanding Revolving Advances plus (B) the aggregate principal
amount of outstanding Swing Line Advances plus (C) the Letter of Credit Exposure
shall never exceed the lesser of (1) the aggregate Revolving Commitments at such time and
(2) the Borrowing Base; and provided further than no Swing Line Advance
shall be made by the Swing Line Lender if the statements set forth in Section 3.02
are not true in all material respects on the date of such Swing Line Advance, it being
agreed by the Borrowers that the giving of the applicable Notice of Borrowing and the
acceptance by the applicable Borrower of the proceeds of such Swing Line Advance shall
constitute a representation and warranty by such Borrower that on the date of such Swing
Line Advance such statements are true in all material respects.
Subject to the other provisions hereof, each Borrower may from time-to-time borrow,
prepay (in whole or in part) and reborrow Swing Line Advances.



 


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(ii) Each request for a Swing Line Advance shall be made pursuant to telephone notice
to the Swing Line Lender given no later than 2:00 p.m. (New York time) on the date of the
proposed Swing Line Advance, promptly confirmed by a completed and executed Notice of
Borrowing telecopied to the Administrative Agent. The Swing Line Lender will promptly make
the Swing Line Advance available to the applicable Borrower at the Administrative Agent’s
Account, if any, or such other account as such Borrower shall direct.




(iii) The Borrowers and the Lenders agree that in the event any Swing Line Advance is
not repaid on the date due to the Swing Line Lender, the Swing Line Lender shall give notice
to the Administrative Agent to request each Lender, including the Swing Line Lender, to make
a Revolving Advance in an amount equal to such Lender’s Pro Rata Share of the outstanding
principal balance of such Swing Line Advance outstanding on the date such notice is given
and such Advance shall be deemed to be a Base Rate Advance made pursuant to such Lender’s
Revolving Commitment, whether made before or after termination of the Revolving Commitments,
acceleration of the Revolving Advances, or otherwise, and whether or not the conditions
precedent in Section 3.02 have been satisfied at the time of such Borrowing. The
Administrative Agent shall give each Lender notice of such Borrowing by 11:00 a.m. (New York
time) on the date such Borrowing is to be made. Each Lender shall, regardless of whether
the conditions in Section 3.02 have been met at the time of such Borrowing and
regardless of whether there exists any Default or Event of Default, make its Revolving
Advance available to the Administrative Agent for the account of the Swing Line Lender in
immediately available funds by 1:00 p.m. (New York time) on the date requested, and each
Borrower hereby irrevocably instructs the Swing Line Lender to apply the proceeds of such
Borrowing to the payment of the outstanding Swing Line Advances.




(iv) At any time before or after a Default or an Event of Default has occurred and is
continuing, if the Revolving Commitments have expired or been terminated while any Swing
Line Advance is outstanding, each Lender, at the sole option of the Swing Line Lender, shall
be deemed, without further action by any Person, to have purchased from the Swing Line
Lender a participation in such Swing Line Advance, in either case in an amount equal to such
Lender’s Pro Rata Share of the outstanding principal balance of such Swing Line Advances.
The Administrative Agent shall notify each such Lender of the amount of such participation,
and such Lender will transfer to the Administrative Agent for the account of the Swing Line
Lender on the next Business Day following such notice, in immediately available funds, the
amount of such participation.




(v) If any such Lender shall not have so made its Revolving Advance or its percentage
participation available to the Administrative Agent pursuant to this Section
2.01(b), such Lender agrees to pay interest thereon for each day from such date until
the date such amount is paid at the Federal Funds Effective Rate for such day for the first
three days and thereafter the interest rate applicable to Base Rate Advances. Whenever, at
any time after the Administrative Agent has received from any Lender such Lender’s
Revolving Advance or participating interest in a Swing Line Advance, the Administrative
Agent receives any payment on account thereof, the Administrative Agent will pay to such
Lender its



 


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\




participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s Revolving
Advance or participating interest was outstanding and funded), which payment shall be
subject to repayment by such Lender if such payment received by the Administrative Agent is
required to be returned. Each Lender’s obligation to make Revolving Advances or purchase
such participating interests pursuant to this Section 2.01(b) shall be absolute and
unconditional and shall not be affected by any circumstance, including, without limitation,
(A) any set-off, counterclaim, recoupment, defense or other right which such Lender or any
other Person may have against the Swing Line Lender, the Administrative Agent or any other
Person for any reason whatsoever; (B) the occurrence or continuance of a Default or an Event
of Default or the termination of the Revolving Commitments; (C) the occurrence of any
Material Adverse Effect; (D) any breach of this Agreement by any Loan Party or any other
Lender; or (E) any other circumstance, happening or event whatsoever, whether or not similar
to any of the foregoing. Each Swing Line Advance, once so participated by any Lender, shall
cease to be a Swing Line Advance with respect to that amount for purposes of this Agreement,
but shall continue to be a Revolving Advance.




(vi) The Swing Line Lender may resign at any time by giving 60 days’ prior written
notice to the Administrative Agent, the Lenders and the Borrowers. Upon the acceptance of
any appointment as the Swing Line Lender hereunder by a Lender that shall agree to serve as
successor Swing Line Lender, such successor shall succeed to and become vested with all the
interests, rights and obligations of the retiring Swing Line Lender and the retiring Swing
Line Lender shall be discharged from its obligations to make additional Swing Line Advances
hereunder. At the time such resignation or removal shall become effective, unless assumed
by the replacement Swing Line Lender, the Borrowers shall pay all outstanding Swing Line
Advances, together with accrued and unpaid interest thereon. The acceptance of any
appointment as the Swing Line Lender hereunder by a successor Lender shall be evidenced by
an agreement entered into by such successor, in a form satisfactory to the retiring Swing
Line Lender and the Administrative Agent, and, from and after the effective date of such
agreement, (i) such successor Lender shall have all the rights and obligations of the
previous Swing Line Lender under this Agreement and the other Loan Documents and (ii)
references herein and in the other Loan Documents to the term “Swing Line Lender” shall be
deemed to refer to such successor or to any previous Swing Line Lender, as the context shall
require.




(c) Increase in Revolving Commitments.




(i) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time
to time, seek and obtain increases in the aggregate Revolving Commitments from one or more
Eligible Assignees by an amount (for all such requests) not exceeding $25,000,000.00;
provided that any such request for an increase shall be in a minimum amount of
$1,000,000.00. With respect to each such proposed increase in the Revolving Commitments,
the existing Lenders shall have the option to assign (based on their
respective Pro Rata Share) their Revolving Commitments to the Eligible Assignee willing
to provide such new Revolving Commitment; provided that the aggregate amount of such
assignments shall not be greater than 50% of the aggregate Revolving Commitments that such
Eligible Assignee was willing to assume. Any such assignment will be made in accordance
with paragraph (d) of this Section 2.01.


 


33









 






(ii) Lender Elections to Increase. For each increase, the Borrowers shall
select an Eligible Assignee to become a Lender pursuant to a joinder agreement in form and
substance reasonably satisfactory to the Administrative Agent.




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




(iv) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrowers shall deliver to the Administrative Agent a certificate of each
Borrower and each Guarantor dated as of the Increase Effective Date signed by a Responsible
Officer of such Person (A) certifying and attaching the resolutions adopted by such Person
approving or consenting to such increase, and (B) in the case of each Borrower, certifying
that, before and after giving effect to such increase, (1) the representations and
warranties contained in Article IV and the other Loan Documents are true and correct in all
material respects 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 in all material respects as of such earlier date, and except that for
purposes of this Section 2.01(c), the representations and warranties contained in Section
4.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 5.06, and (2) no Default exists. The Borrowers shall
prepay any Revolving Advances outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 2.08) to the extent necessary to keep the
outstanding Revolving Advances ratable with any revised Pro Rata Shares arising from any
nonratable increase in the Revolving Commitments under this Section.




(v) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.12 or 10.01 to the contrary.



(d) New Lenders Revolving Commitments through Assignment. The Administrative Agent
shall give the Lenders notice of any Eligible Assignee that has notified the Administrative Agent
that it wishes to obtain a Revolving Commitment. The Lenders agree that, if an Eligible Assignee
desires to obtain a Revolving Commitment, each Lender shall have the right to assign to such
Eligible Assignee a percentage of its Revolving Commitment equal to (i) the amount of the Revolving
Commitment such Eligible Assignee obtains through assignment divided by (ii) the aggregate amount
of Revolving Commitments of the Lenders agreeing to assign to such Eligible Assignee. No Lender
shall be obligated to assign any portion of its Revolving Commitment to the Eligible Assignee, but
every Lender shall have the right to so assign its
Revolving Commitment as set forth in the preceding sentence. All assignments to Eligible
Assignees (i) shall be made in accordance with Section 10.06 of this Agreement and (ii) shall be
ratable among the assigning Lenders as set forth in this paragraph (d).


 


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Section 2.02 Method of Borrowing.



(a) Notice. Each Borrowing shall be made pursuant to a Notice of Borrowing, given not
later than (i) if the Borrowing is comprised of Eurodollar Advances, 11:00 a.m. (New York time) on
the third Business Day before the requested Borrowing Date and (ii) if the Borrowing is comprised
of Base Rate Advances, 11:00 a.m. (New York time) at least one Business Day in advance of the
requested Borrowing Date, in each case to the Administrative Agent’s Applicable Lending Office.
The Administrative Agent shall give to each Lender prompt notice on the day of receipt of a timely
Notice of Borrowing. The Notice of Borrowing shall be in writing specifying (A) the Borrowing Date
(which shall be a Business Day), (B) the requested Type of Revolving Advances comprising such
Borrowing, (C) the aggregate amount of such Borrowing, and (D) if such Borrowing is to be comprised
of Eurodollar Advances, the requested Interest Period. In the case of a requested Borrowing
comprised of Eurodollar Advances, the Administrative Agent shall promptly notify each Lender of the
applicable interest rate under Section 2.06(a)(ii). Each Lender shall make available its
Pro Rata Share of such Borrowing before 12:00 p.m. (New York time) on the Borrowing Date in
immediately available funds to the Administrative Agent at its Applicable Lending Office or such
other location as the Administrative Agent may specify by notice to the Lenders. After the
Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Administrative Agent will promptly make such funds available to
the applicable Borrower not later than 2:00 p.m. (New York time) at such account as such Borrower
shall specify in writing to the Administrative Agent.



(b) Conversions and Continuations. In order to elect to Convert or Continue a
Revolving Advance under this Section, a Borrower shall deliver an irrevocable Notice of Conversion
or Continuation to the Administrative Agent at its Applicable Lending Office no later than (i)
11:00 a.m. (New York time) at least one Business Day in advance of such requested Conversion date
in the case of a Conversion of a Eurodollar Advance to a Base Rate Advance or (ii) 11:00 a.m. (New
York time) at least three Business Days in advance of such requested Conversion date in the case of
a Conversion into or Continuation of a Eurodollar Advance to another Eurodollar Advance. Each such
Notice of Conversion or Continuation shall be in writing or by telex, telecopier or telephone,
confirmed promptly in writing specifying (A) the requested Conversion or Continuation date (which
shall be a Business Day), (B) the amount, Type of the Revolving Advance to be Converted or
Continued, (C) whether a Conversion or Continuation is requested, and if a Conversion, into what
Type of Revolving Advance, and (D) in the case of a Conversion to, or a Continuation of, a
Eurodollar Advance, the requested Interest Period. Promptly after receipt of a Notice of
Conversion or Continuation under this paragraph, the Administrative Agent shall provide each Lender
with a copy thereof and, in the case of a Conversion to or a Continuation of a Eurodollar Advance,
notify each Lender of the interest rate under Sections 2.06(a)(ii). Conversions of
Eurodollar Advances and Base Rate Advances may be made at any time, subject to the obligation of
the Borrowers to pay any amounts required under Section 2.08. The portion of Revolving
Advances comprising part of the
same Borrowing that are converted to Revolving Advances of another Type shall constitute a new
Borrowing. Swing Line Advances may not be Converted into Eurodollar Advances.


 


35









 






(c) Certain Limitations. Notwithstanding anything in paragraphs (a) and (b) above:




(i) at no time shall there be more than eight Interest Periods applicable to
outstanding Eurodollar Advances;




(ii) if any Lender shall, at least one Business Day before the date of any requested
Borrowing, notify the Administrative Agent that any Change in Law makes it unlawful for such
Lender or any of its Applicable Lending Offices to perform its obligations under this
Agreement to make Eurodollar Advances, or to fund or maintain Eurodollar Advances, the right
of the Borrowers to select Eurodollar Advances from such Lender for such Borrowing or for
any subsequent Borrowing shall be suspended until such Lender shall notify the
Administrative Agent that the circumstances causing such suspension no longer exist, and
such Lender’s Revolving Advance for such Borrowing shall be a Base Rate Advance;




(iii) if the Administrative Agent has determined (which determination shall be
conclusive and binding upon the Borrowers) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for any requested Borrowing and the Administrative Agent gives telephonic or telecopy
notice thereof to the Borrowers as soon as practicable, the right of the Borrowers to select
Eurodollar Advances for such Borrowing or for any subsequent Borrowing and the obligation of
the Lenders to make such Eurodollar Advances shall be suspended until the Administrative
Agent shall notify the Borrowers and the Lenders that the circumstances causing such
suspension no longer exist, and each Revolving Advance comprising such Borrowing shall be a
Base Rate Advance;




(iv) if the Majority Lenders shall, by 11:00 a.m. (New York time) at least one Business
Day before the date of any requested Borrowing, notify the Administrative Agent that the
Eurodollar Rate will not adequately reflect the cost to such Lenders of making or funding or
maintaining their respective Eurodollar Advances and the Administrative Agent gives
telephonic or telecopy notice thereof to the Borrowers as soon as practicable, the right of
the Borrowers to select Eurodollar Advances for such Borrowing or for any subsequent
Borrowing and the obligation of the Lenders to make Eurodollar Advances shall be suspended
until the Administrative Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist, and each Revolving Advance comprising
such Borrowing shall be a Base Rate Advance;




(v) if either Borrower shall fail to select the duration or Continuation of any
Interest Period for any Eurodollar Advances in accordance with the provisions contained in
the definition of “Interest Period” in Section 1.01 and paragraphs (a) and (b) above
or shall fail to deliver a Notice of Conversion or Continuation, the Administrative Agent
will forthwith so notify the Borrowers and the Lenders and such Revolving Advances will be
made available to such Borrower on the date of such Borrowing as Base Rate Advances or, if
an existing Revolving Advance, Convert into Base Rate Advances; and


 


36









 






(vi) no Revolving Advance may be Converted or Continued as a Eurodollar Advance at any
time when a Default or an Event of Default has occurred and is continuing.



(d) Notices Irrevocable. Each Notice of Borrowing and each Notice of Conversion or
Continuation delivered by a Borrower shall be irrevocable and binding on such Borrower. In the
case of the initial Borrowing or any Borrowing which the related Notice of Conversion or
Continuation specifies is to be comprised of Eurodollar Advances, the Borrowers shall indemnify
each Lender against any loss, out-of-pocket cost or expense actually incurred by such Lender as a
result of any failure to fulfill on or before the Borrowing Date or the date specified in such
Notice of Conversion or Continuation for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or expense actually incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to
fund the Revolving Advance to be made by such Lender as part of such Borrowing when such Revolving
Advance, as a result of such failure, is not made on such date.



(e) Administrative Agent Reliance. Unless the Administrative Agent shall have
received notice from a Lender before the Borrowing Date that such Lender will not make available to
the Administrative Agent such Lender’s Pro Rata Share of the Borrowing, the Administrative Agent
may assume that such Lender has made its Pro Rata Share of such Borrowing available to the
Administrative Agent on the Borrowing Date in accordance with paragraph (a) of this
Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make
available to the applicable Borrower on the Borrowing Date a corresponding amount. If and to the
extent that such Lender shall not have so made its Pro Rata Share of such Borrowing available to
the Administrative Agent, such Lender and the applicable Borrower severally agree to immediately
repay to the Administrative Agent on demand such corresponding amount, together with interest on
such amount, for each day from the date such amount is made available to such Borrower until the
date such amount is repaid to the Administrative Agent, at (i) in the case of such Borrower, the
interest rate applicable on such day to Base Rate Advances and (ii) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation. If such Lender shall repay to
the Administrative Agent such corresponding amount and interest as provided above, such
corresponding amount so repaid shall constitute such Lender’s Revolving Advance as part of such
Borrowing for purposes of this Agreement even though not made on the same day as the other
Revolving Advances comprising such Borrowing. If such Lender’s Revolving Advance as part of such
Borrowing is not made available by such Lender within three Business Days of the Borrowing Date,
the applicable Borrower shall repay such Lender’s share of such Borrowing (together with interest
thereon at the interest rate applicable during such period to Base Rate Advances) to the
Administrative Agent not later than three Business Days after receipt of written notice from the
Administrative Agent specifying such Lender’s share of such Borrowing that was not made available
to the Administrative Agent.



(f) Lender Obligations Several. The failure of any Lender to make a Revolving Advance
to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if
any, to make its Revolving Advance on the applicable Borrowing Date. No Lender
shall be responsible for the failure of any other Lender to make a Revolving Advance to be
made by such other Lender on any applicable Borrowing Date.


 


37









 






(g) Noteless Agreement; Evidence of Indebtedness.




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




(ii) The Administrative Agent shall also maintain accounts in which it will record (A)
the amount of each Revolving Advance made hereunder, the Type thereof and the Interest
Period with respect thereto, (B) the amount of any principal or interest due and payable or
to become due and payable from each Borrower to each Lender hereunder and (C) the amount of
any sum received by the Administrative Agent hereunder from each Borrower and each Lender’s
share thereof.




(iii) The entries maintained in the accounts maintained pursuant to paragraphs (i) and
(ii) above shall be prima facie evidence of the existence and amounts of the Obligations
therein recorded; provided, however, that the failure of the Administrative
Agent or any Lender to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrowers to repay the Obligations in accordance with their
terms.




(iv) Any Lender may request that the Revolving Advances owing to such Lender be
evidenced by a Note. In such event, each Borrower shall execute and deliver to such Lender
a Note payable to the order of such Lender and its registered assigns. Thereafter, the
Revolving Advances evidenced by such Note and interest thereon shall at all times (including
after any assignment pursuant to Section 10.06) be represented by one or more Notes
payable to the order of the payee named therein or any assignee pursuant to Section
10.06, except to the extent that any such Lender or assignee subsequently returns any
such Note for cancellation and requests that such Revolving Advances once again be evidenced
as described in paragraphs (i) and (ii) above.




Section 2.03 Fees.




(a) Revolving Commitment Fees.




(i) Each Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee (a “Commitment Fee”) on the average daily amount by which
such Lender’s Revolving Commitment exceeds the sum of (i) the aggregate principal amount of
such Lender’s outstanding Revolving Advances and (ii) such Lender’s Pro Rata Share of the
Letter of Credit Exposure, from the Closing Date until the Maturity Date at the Applicable
Margin for Commitment Fees. Swing Line Loans shall not count as usage of any Lender’s
Revolving Commitment for the purpose of calculating the Commitment Fees due hereunder. The
Commitment Fees payable pursuant to this
clause (a) are payable in arrears on the first Business Day of each month commencing
October 1, 2008 and on the Maturity Date.


 


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(ii) The Borrowers agree to pay to the Administrative Agent, for the account of each
Lender that is a Lender on the Closing Date, on the second Business Day of each month
commencing in January 2009, a fee equal to 0.05% of such Lenders Revolving Commitment on the
first Business Day of each such month.



(b) Agent’s Fees. The Borrowers, jointly and severally, agree to pay to the
Administrative Agent and the Arranger the fees as separately agreed upon by the Borrowers in such
Fee Letter.




(c) Letter of Credit Fees.




(i) The Borrowers, jointly and severally, agree to pay to the Administrative Agent for
the pro rata benefit of each Lender with respect to each Letter of Credit a letter of credit
fee at a per annum rate equal to the greater of (A) the Applicable Margin for Letters of
Credit in effect from time to time or (B) $700. Each such fee shall be based on the maximum
amount available to be drawn under such Letter of Credit from the date of issuance of the
Letter of Credit until its expiration date and shall be payable in arrears on the first
Business Day of each month until the earlier of its expiration date or the Maturity Date.
All such fees shall be computed on the basis of the actual number of days elapsed in a year
of 360 days.




(ii) The Borrowers, jointly and severally, agree to pay to the Issuing Bank, a fronting
fee for each Letter of Credit equal to 0.125% per annum of the initial stated amount of such
Letter of Credit (or, with respect to any subsequent increase to the stated amount of any
such Letter of Credit, such increase in the stated amount). Each such fee shall be based on
the maximum amount available to be drawn under such Letter of Credit from the date of
issuance of the Letter of Credit until its expiration date and shall be payable in arrears
on the first Business Day of each month until the earlier of its expiration date or the
Maturity Date. All such fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.




(iii) In addition, the Borrowers, jointly and severally, agree to pay to the Issuing
Bank all customary transaction costs and fees charged by the Issuing Bank in connection with
the issuance of a Letter of Credit for such Borrower’s account, such costs and fees to be
due and payable on the date specified by the Issuing Bank in the invoice for such costs and
fees.



(d) Generally. All such fees shall be paid on the dates due, in immediately available
Dollars to the Administrative Agent for distribution, if and as appropriate, among the Lenders,
except that the fees payable pursuant to Section 2.03(c)(ii) and (iii) shall be
paid directly to the Issuing Bank. Once paid, absent manifest error, none of these fees shall be
refundable under any circumstances.


 


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Section 2.04 Reduction of the Revolving Commitments.



(a) The Borrowers shall have the right, upon at least five days’ irrevocable notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the unused portion of the
Revolving Commitments; provided that each partial reduction of Revolving Commitments shall
be in the minimum aggregate amount of $5,000,000.00 and in integral multiples of $1,000,000.00 in
excess thereof (or such lesser amount as may then be outstanding); and provided
further that the aggregate amount of the Revolving Commitments may not be reduced by the
Borrower below the aggregate principal amount of the outstanding Revolving Advances plus
the Letter of Credit Exposure plus the outstanding principal amount of the Swing Line
Advances.



(b) Any reduction or termination of the Revolving Commitments pursuant to Section 2.04 shall
be permanent, with no obligation of the Revolving Lenders to reinstate such Revolving Commitments
and the commitment fees provided for in Section 2.03(a) shall thereafter be computed on the basis
of the Revolving Commitments as so reduced. The Administrative Agent shall give each Lender prompt
notice of any commitment reduction or termination under Section 2.04(a).



Section 2.05 Repayment. The Borrowers shall, jointly and severally, repay the
outstanding principal amount of the Revolving Advances on the Maturity Date.



Section 2.06 Interest. The Borrowers shall, jointly and severally, pay interest on
the unpaid principal amount of each Revolving Advance made by each Lender to it from the date of
such Revolving Advance until such principal amount shall be paid in full, at the following rates
per annum:




(a) Revolving Advances.




(i) Base Rate Advances. If such Revolving Advance is a Base Rate Advance, a
rate per annum equal to the Adjusted Base Rate plus the Applicable Margin in respect
of Base Rate Advances in effect from time to time, payable in arrears on the earlier of (A)
the first Business Day of each month and (B) on the date such Base Rate Advance shall be
paid in full.




(ii) Eurodollar Advances. If such Revolving Advance is a Eurodollar Advance, a
rate per annum equal to the Eurodollar Rate for such Interest Period plus the
Applicable Margin in respect of Eurodollar Advances in effect on each day of such Interest
Period for Eurodollar Advances, payable in arrears on the last day of such Interest Period,
and, in the case of Interest Periods of greater than one month, on each Business Day which
occurs at one month intervals from the first day of such Interest Period.



 


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(b) Additional Interest on Eurodollar Advances. The Borrowers shall, jointly and
severally, pay to each Lender, so long as any such Lender shall be required under regulations of
the Federal Reserve Board to maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities, additional interest on the unpaid principal amount of each
Eurodollar Advance of such Lender, from the effective date of such Revolving Advance until such
principal amount is paid in full, at an interest rate per annum equal at all times to the
remainder obtained by subtracting (i) the Eurodollar Rate for the Interest Period for such
Revolving Advance from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such Revolving Advance. Such additional
interest payable to any Lender shall be determined by such Lender and notified to the Borrowers
through the Administrative Agent (such notice to include the calculation of such additional
interest, which calculation shall be conclusive absent demonstrable error, and be accompanied by
any evidence indicating the need for such additional interest as the Borrowers may reasonably
request) within 90 days after such Lender becomes required to maintain such reserves.



(c) Usury Recapture. In the event the rate of interest chargeable under this
Agreement at any time (calculated after giving affect to all items charged which constitute
“interest” under applicable laws, including fees and margin amounts, if applicable) is greater than
the Maximum Rate, the unpaid principal amount of the Revolving Advances or Swing Line Advances, as
applicable, shall bear interest at the Maximum Rate until the total amount of interest paid or
accrued on the Revolving Advances and Swing Line Advances equals the amount of interest which would
have been paid or accrued on the Revolving Advances and Swing Line Advances if the stated rates of
interest set forth in this Agreement had at all times been in effect.



In the event, upon payment in full of the Revolving Advances and the Swing Line Advances, the
total amount of interest paid or accrued under the terms of this Agreement and the Revolving
Advances and the Swing Line Advances is less than the total amount of interest which would have
been paid or accrued if the rates of interest set forth in this Agreement had, at all times, been
in effect, then the Borrowers shall, to the extent permitted by applicable law, jointly and
severally pay the Administrative Agent for the account of the Lenders an amount equal to the
difference between (i) the lesser of (A) the amount of interest which would have been charged on
its Revolving Advances and Swing Line Advances if the Maximum Rate had, at all times, been in
effect and (B) the amount of interest which would have accrued on its Revolving Advances and Swing
Line Advances if the rates of interest set forth in this Agreement had at all times been in effect
and (ii) the amount of interest actually paid under this Agreement on its Revolving Advances and
Swing Line Advances.



In the event the Lenders or the Swing Line Lender ever receives, collects or applies as
interest any sum in excess of the Maximum Rate, such excess amount shall, to the extent permitted
by law, be applied to the reduction of the principal balance of the Revolving Advances or Swing
Line Advances, as applicable, and if no such principal is then outstanding, such excess or part
thereof remaining shall be paid to the Borrowers.



(d) Default Interest. When an Event of Default occurs and is continuing, the
Applicable Margin (except for Commitment Fees), to the extent permitted by law, will increase by
2.00%.




Section 2.07 Prepayments.



(a) Right to Prepay. The Borrowers shall have no right to prepay any principal amount
of any Revolving Advance except as provided in this Section 2.07.




 


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(b) Optional. The Borrowers may elect to prepay, in whole or in part, any of the
Revolving Advances owing by it to the Lenders, after giving prior written notice of such election
by (i) 11:00 a.m. (New York time) at least three Business Days before such prepayment date in the
case of Borrowings which are comprised of Eurodollar Advances, and (ii) 11:00 a.m. (New York time)
on or before the Business Day of such prepayment, in case of Borrowings which are comprised of Base
Rate Advances, in each case to the Administrative Agent stating the proposed date and aggregate
principal amount of such prepayment. If any such notice is given, the Administrative Agent shall
give prompt notice thereof to each Lender and the Borrowers shall prepay Revolving Advances
comprising part of the same Borrowing in whole or ratably in part in an aggregate principal amount
equal to the amount specified in such notice, together with accrued interest to the date of such
prepayment on the principal amount prepaid and amounts, if any, required to be paid pursuant to
Section 2.08 as a result of such prepayment being made on such date; provided,
however, that each partial prepayment shall be in an aggregate principal amount not less
than $2,000,000.00 and in integral multiples of $1,000,000.00 in excess thereof (or such lesser
amount as may then be outstanding). Either Borrower may elect to prepay, in whole or in part, any
of the Swing Line Advances owing by it to the Swing Line Lender, after giving prior written notice
of such election by noon (New York time) on the Business Day of such prepayment to the
Administrative Agent and the Swing Line Lender stating the proposed date and the aggregate
principal amount of such prepayment.



(c) Mandatory Prepayments of Revolving Advances.




(i) Deficiency. If the outstanding principal amount of the Revolving Advances
plus the Letter of Credit Exposure plus the outstanding principal amount of
the Swing Line Advances exceeds the lesser of (A) the aggregate Revolving Commitments and
(B) the Borrowing Base, the Borrowers, jointly and severally, agree to make a mandatory
prepayment of the Revolving Advances and/or the Swing Line Advances, together with accrued
interest to the date of such prepayment on the principal amount prepaid and amounts, if any,
required to be paid pursuant to Section 2.08 as a result of such prepayment being
made on such date, in the amount of such excess, or if the Revolving Advances and the Swing
Line Advances have been repaid in full, make deposits into the LC Cash Collateral Account in
the remaining amount of such excess to provide cash collateral for the Letter of Credit
Exposure, not later than 3:00 p.m., New York City time, if the Borrowers shall have received
notice of such deficiency prior to 12:00 noon, New York City time, on such date, or, if such
notice has not been received by the Borrowers prior to such time on such date, then not
later than 12:00 noon, New York City time, on the Business Day immediately following the day
that the Borrowers receive such notice. Amounts to be applied pursuant to this clause (i)
shall be applied first to reduce outstanding Base Rate Advances, second to the LC Cash
Collateral Account in an amount equal to the Lenders’ aggregate Letter of Credit Exposure
and third to reduce outstanding Eurodollar Advances.




(ii) Reduction of Revolving Commitments. On the date of each reduction of the
aggregate Revolving Commitments pursuant to Section 2.04, the Borrowers, jointly and
severally, agree to make a prepayment in respect of the outstanding amount of the Revolving
Advances to the extent, if any, that the aggregate unpaid principal amount of all Revolving
Advances plus the Letter of Credit Exposure plus the outstanding principal
amount of the Swing Line Advances exceeds the lesser of (i) the Revolving Commitments
and (ii) the Borrowing Base.


 


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(iii) Application of Prepayments. Each prepayment pursuant to this Section
2.07(c) shall be accompanied by accrued interest on the amount prepaid to the date of
such prepayment and amounts, if any, required to be paid pursuant to Section 2.08 as
a result of such prepayment being made on such date.



(d) Illegality. If any Lender shall notify the Administrative Agent and the Borrowers
that any Change in Law makes it unlawful for such Lender or its Applicable Lending Office to
perform its obligations under this Agreement or to make or maintain Eurodollar Advances then
outstanding hereunder, the Borrowers shall, no later than 11:00 a.m. (New York time) (i) (A) if not
prohibited by any Legal Requirement to maintain such Eurodollar Advances for the duration of the
Interest Period, on the last day of the Interest Period for each outstanding Eurodollar Advance or
(B) if prohibited by any Legal Requirement to maintain such Eurodollar Advances for the duration of
the Interest Period, on the second Business Day following its receipt of such notice, prepay all
Eurodollar Advances of all of the Lenders then outstanding, together with accrued interest on the
principal amount prepaid to the date of such prepayment and amounts, if any, required to be paid
pursuant to Section 2.08 as a result of such prepayment being made on such date, (ii) each
Lender shall simultaneously make a Base Rate Advance or, if not otherwise prohibited, make an
Eurodollar Advance in an amount equal to the aggregate principal amount of the affected Eurodollar
Advances, and (iii) the right of the Borrowers to select Eurodollar Advances shall be suspended
until such Lender shall notify Administrative Agent that the circumstances causing such suspension
no longer exist. Each Lender agrees to use commercially reasonable efforts (consistent with its
internal policies and subject to legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such designation would avoid the effect of this
paragraph and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to
such Lender.



(e) Ratable Payments; Effect of Notice. Each payment of any Revolving Advance
pursuant to this Section 2.07 or any other provision of this Agreement shall be made in a
manner such that all Revolving Advances comprising part of the same Borrowing are paid in whole or
ratably in part. All notices given pursuant to this Section 2.07 shall be irrevocable and
binding upon the Borrowers.



Section 2.08 Funding Losses. If (a) any payment of principal of any Eurodollar
Advance is made other than on the last day of the Interest Period for such Revolving Advance as a
result of any payment pursuant to Section 2.07 or the acceleration of the maturity of the
Revolving Advances pursuant to Article VII or (b) if any Borrower fails to make a principal
or interest payment with respect to any Eurodollar Advance on the date such payment is due and
payable, such Borrower shall, within three Business Days of any written demand sent by any Lender
to such Borrower through the Administrative Agent, pay to Administrative Agent for the account of
such Lender any amounts (without duplication of any other amounts payable in respect of breakage
costs) required to compensate such Lender for any additional losses, out-of-pocket costs or
expenses which it actually incurs as a result of such payment or nonpayment, including, without
limitation, any loss, cost or expense actually incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Revolving Advance. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be
delivered to either Borrower and shall be conclusive absent manifest error.


 


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Section 2.09 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 Reserve Percentage), the Issuing Bank or the Swing Line
Lender;




(ii) subject any Lender, the Issuing Bank or any Swing Line Lender 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 Advance made by it, or change the basis of taxation of
payments to such Lender, the Issuing Bank or the Swing Line Lender in respect thereof
(except for Indemnified Taxes or Other Taxes covered by Section 2.11 and the
imposition of, or any change in the rate of, any Excluded Tax payable by such Lender, the
Issuing Bank or the Swing Line Lender); or




(iii) impose on any Lender, the Issuing Bank, the Swing Line Lender or the London
interbank market any other condition, cost or expense affecting this Agreement or Eurodollar
Advances made by such Lender, the Issuing Bank, the Swing Line 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 Advance (or of maintaining its obligation to make any
such Revolving Advance), or to increase the cost to such Lender or the Issuing Bank 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, the Issuing Bank or the Swing Line Lender
hereunder (whether of principal, interest or any other amount) then, upon request of such
Lender, the Issuing Bank or the Swing Line Lender, the Borrowers will, jointly and
severally, pay to such Lender, the Issuing Bank or the Swing Line Lender, as the case may be
(provided that such Lender has complied with its obligations under Section 2.15),
such additional amount or amounts as will compensate such Lender, the Issuing Bank or the
Swing Line Lender, as the case may be, for such additional costs incurred or reduction
suffered.



(b) Capital Requirements. If any Lender, the Issuing Bank or the Swing Line Lender
determines that any Change in Law affecting such Lender, the Issuing Bank or the Swing Line Lender
or any lending office of such Lender, the Issuing Bank or the Swing Line Lender or such Lender’s,
the Issuing Bank’s or the Swing Line Lender’s holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s, the
Issuing Bank’s or the Swing Line Lender’s capital or on the capital of such Lender’s, the Issuing
Bank’s or the Swing Line Lender’s holding company, if any, as a



 


44









 






consequence of this Agreement, the Commitments of such Lender or the Revolving Advances made by, or participations
in Letters of Credit held by, such Lender, the Letters of Credit issued by the Issuing Bank, or the
Revolving Advances made by the Swing Line Lender, to a level below that which such Lender, the
Issuing Bank or the Swing Line Lender or such Lender’s, the Issuing Bank’s or the Swing Line
Lender’s holding company could have achieved but for such Change in Law (taking into consideration
such Lender’s, the Issuing Bank’s or the Swing Line Lender’s policies and the policies of such
Lender’s, the Issuing Bank’s or the Swing Line Lender’s holding company with respect to capital
adequacy), then from time to time the Borrowers will, jointly and severally, pay to such Lender,
the Issuing Bank or the Swing Line Lender, as the case may be (provided that such Lender has
complied with its obligations under Section 2.15), such additional amount or amounts as
will compensate such Lender, the Issuing Bank or the Swing Line Lender or such Lender’s, the
Issuing Bank’s or the Swing Line Lender’s holding company for any such reduction suffered.



(c) Certificates for Reimbursement. A certificate of a Lender, the Issuing Bank or the
Swing Line Lender’s setting forth the amount or amounts necessary to compensate such Lender, the
Issuing Bank or the Swing Line Lender or any of their respective holding companies, as the case may
be, as specified in paragraph (a) or (b) of this Section and setting forth a reasonably detailed
description of the basis for calculating such amount delivered to the Borrowers shall be conclusive
absent manifest error. The Borrowers shall, jointly and severally, pay such Lender, the Issuing
Bank or the Swing Line Lender, as the case may be, the amount shown as due on any such certificate
within 30 days after receipt thereof.



(d) Delay in Requests. Failure or delay on the part of any Lender, the Issuing Bank or
the Swing Line Lender to demand compensation pursuant to this Section shall not constitute a waiver
of such Lender’s, the Issuing Bank’s or the Swing Line Lender’s right to demand such compensation,
provided that the Borrowers shall not be required to compensate a Lender, the Issuing Bank
or the Swing Line Lender pursuant to this Section for any increased costs incurred or reductions
suffered more than six months prior to the date that such Lender, the Issuing Bank, or the Swing
Line Lender, as the case may be, notifies the Borrowers of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s, the Issuing Bank’s or the Swing Line Lender’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 six-month period referred to above shall be
extended to include the period of retroactive effect thereof).



Section 2.10 Payments and Computations.



(a) Payment Procedures. The Borrowers shall make each payment under this Agreement
not later than 12:00 p.m. (New York time) on the day when due to the Administrative Agent at the
Administrative Agent’s Applicable Lending Office in immediately available funds. Each Revolving
Advance shall be repaid and each payment of interest thereon shall be paid in Dollars. All
payments shall be made without setoff, deduction, or counterclaim. The Administrative Agent will
promptly thereafter, and in any event prior to the close of business on the day any timely payment
is made, cause to be distributed like funds relating to the payment of principal, interest or fees
ratably (other than amounts payable solely to the Administrative Agent, or a specific Lender
pursuant to Section 2.03(b), 2.03(c), 2.08, 2.09 or 2.11,
but after taking into
account payments effected pursuant to Section 10.04) in accordance with each Lender’s Pro Rata
Share to the Lenders for the account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such Lender for the account of
its Applicable Lending Offices, in each case to be applied in accordance with the terms of this
Agreement.


 


45









 





(b) Computations. All computations of interest based on the Prime Rate shall be made
by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Federal Funds Effective Rate or the Eurodollar Rate and of
fees shall be made by the Administrative Agent, on the basis of a year of 360 days, in each case
for the actual number of days (including the first day, but excluding the last day) occurring in
the period for which such interest or fees are payable. Each determination by the Administrative
Agent of an interest rate shall be conclusive and binding for all purposes, absent manifest error.



(c) Non-Business Day Payments. Whenever any payment shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of payment of interest or
fees, as the case may be.



(d) Agent Reliance. Unless the Administrative Agent shall have received written
notice from a Borrower prior to the date on which any payment is due to the Lenders that such
Borrower will not make such payment in full, the Administrative Agent may assume that such Borrower
has made such payment in full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on such date an
amount equal to the amount then due to such Lender. If and to the extent such Borrower shall not
have so made such payment in full to Administrative Agent, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender, together with
interest thereon, for each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Administrative Agent, at the greater of the Federal
Funds Effective Rate for such day and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.



Section 2.11 Taxes.



(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of
any Loan Party 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
any Loan Party shall be required by any Legal Requirement 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, such Lender, the Issuing Bank
or the Swing Line Lender, as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made; provided however, that the Borrower shall not be
required to increase any such amounts payable to any Administrative Agent, Lender, Issuing Bank or
Swing Line Lender with respect to Indemnified Taxes or Other Taxes that (1) are attributable to
recipient’s failure to comply with the requirements of Section 2.11(e); (2) are imposed
solely as a result of the payment to the Administrative Agent, Lender, Issuing Bank or
Swing Line Lender hereunder and a connection between such recipient and the taxing
jurisdiction imposing such Indemnified Tax or Other Tax, which connection is unrelated to the
transactions set forth in any Loan Document; or (3) that are U.S. Withholding Taxes imposed on
amounts payable to or for the account of an Administrative Agent, Lender, Issuing Bank or Swing
Line Lender at the time such recipient becomes a party to this Agreement, except to the extent such
U.S. Withholding Taxes are imposed or increased as a result of a Change in Law, (ii) the Borrowers
shall make such deductions and (iii) the Borrowers shall, jointly and severally, timely pay the
full amount deducted to the relevant Governmental Authority in accordance with Legal Requirements.


 


46









 





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



(c) Indemnification by the Borrowers. The Borrowers shall indemnify the Administrative
Agent, each Lender, the Issuing Bank and the Swing Line Lender, 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, the Issuing Bank or the Swing Line Lender, as the case
may be, and any penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability and setting forth a reasonably detailed description of the basis for calculating such
amount delivered to the Borrowers by a Lender, the Issuing Bank or the Swing Line Lender (with a
copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of
a Lender, the Issuing Bank or the Swing Line Lender, 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 Borrowers to a Governmental Authority, the Borrowers 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 each 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 Borrowers (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrowers or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent
as will permit such payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, the Issuing Bank or the Swing Line Lender if requested by the Borrowers or
the Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or
the Administrative Agent to determine
whether or not such Lender, the Issuing Bank or the Swing Line Lender is subject to backup
withholding or information reporting requirements.


 


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Without limiting the generality of the foregoing, in the event that a Borrower is resident for
tax purposes in the United States of America, any Foreign Lender shall deliver to the Borrowers 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 Borrowers or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:



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



(ii) two duly completed copies of Internal Revenue Service Form W-8EC or Internal
Revenue Service Form W-8IMY (or successor form),



(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 Parent 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) two 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 Borrowers
to determine the withholding or deduction required to be made.



In addition, each Foreign Lender shall deliver such forms discussed above promptly upon the
obsolescence or invalidity of any form previously delivered by such Foreign Lender. Each Foreign
Lender shall promptly notify the Borrower in writing at any time it determines that it is no longer
in a position to provide any previously delivered certificate with relation to portfolio interest.
Each Lender who is not a Foreign Lender shall furnish an accurate and complete Internal Revenue
Form W-9 (or successor form) establishing that such Lender is not subject to U.S. backup
withholding, and to the extent it may lawfully do so at such times, provide a new Form W-9 (or
successor form) upon the expiration or obsolescence of any previously delivered form.



(f) Treatment of Certain Refunds. If the Administrative Agent, a Lender, the Issuing
Bank or the Swing Line Lender determines, in good faith, that it has received a refund of any Taxes
or Other Taxes as to which it has been indemnified by the Borrowers or with respect to which the
Borrowers have paid additional amounts pursuant to this Section, it shall pay to the Borrowers an
amount equal to such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrowers under this Section with respect to the Taxes or Other Taxes giving
rise to such refund), net of all reasonable


 


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out-of-pocket expenses of the
Administrative  Agent, such Lender, the Issuing Bank or the Swing Line Lender, 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 Borrowers, upon the request of the
Administrative Agent, such Lender, the Issuing Bank or the Swing Line Lender, agree to repay the
amount paid over to the Borrowers (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority that accrue during or in respect of the period of time that the
Borrowers hold such amount and that would have been payable by the Borrowers pursuant to Section
2.11(a) or (b) had the Borrowers not paid the amount refunded to the Borrowers pursuant to
this Section 2.11(f)) to the Administrative Agent, such Lender, the Issuing Bank or the
Swing Line Lender in the event the Administrative Agent, such Lender, the Issuing Bank or the Swing
Line Lender is required to repay such refund to such Governmental Authority. This paragraph shall
not be construed to require the Administrative Agent, any Lender, the Issuing Bank or the Swing
Line Lender to make available its tax returns (or any other information relating to its taxes that
it deems confidential) to the Borrowers or any other Person.



Section 2.12 Sharing of Payments, Etc. 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 its Revolving Advances or other obligations hereunder resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of its Revolving Advances and accrued
interest thereon or other such obligations greater than its Pro Rata Share, 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 Advances and such other
obligations 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 Advances and
other amounts owing them, provided that: (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this paragraph shall not be construed to apply to (x) any payment made by
the Borrowers pursuant to and in accordance with the express terms of this Agreement or (y) any
payment obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Revolving Advances or participations in Letters of Credit to any assignee or
participant, other than to the Borrowers or any Subsidiary thereof (as to which the provisions of
this paragraph shall apply). Each Loan Party 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 each Loan Party rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor
of each Loan Party in the amount of such participation.



Section 2.13 Applicable Lending Offices. Each Lender may book its Revolving Advances
at any Applicable Lending Office selected by such Lender and may change its Applicable Lending
Office from time to time. All terms of this Agreement shall apply to any such Applicable Lending
Office and the Revolving Advances shall be deemed held by each Lender for the benefit of such
Applicable Lending Office. Each Lender may, by written notice to the Administrative Agent and the
Borrowers
designate replacement or additional Applicable Lending Offices through which Revolving
Advances will be made by it and for whose account repayments are to be made.


 


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Section 2.14 Letters of Credit.



(a) Issuance. Subject to the terms of this Agreement, from time-to-time from the
Closing Date until 30 days before the Maturity Date, at the request of a Borrower, the Issuing Bank
shall, on the terms and conditions hereinafter set forth, issue, increase, or extend the expiration
date of Letters of Credit for the account of such Borrower or for the account of any Subsidiary of
a Borrower (in which case such Borrower and such Subsidiary shall be co-applicants with respect to
such Letter of Credit) on any Business Day. All Letters of Credit outstanding under the Existing
Credit Agreement will deemed to be issued under this Agreement on the Closing Date. No Letter of
Credit will be issued, increased, or extended:




(i) if such issuance, increase, or extension would cause the Letter of Credit Exposure
to exceed the lesser of (A) the aggregate Revolving Commitments minus the sum of the
aggregate outstanding principal amount of all Revolving Advances and the aggregate
outstanding principal amount of the Swing Line Advances and (B) the Borrowing Base
minus the sum of the aggregate outstanding principal amount of all Revolving
Advances and the aggregate outstanding principal amount of the Swing Line Advances;




(ii) unless such Letter of Credit has an expiration date not later than the earlier of
(A) one year after the date of issuance thereof and (B) 180 days after the Maturity Date;
provided that, any such Letter of Credit with a one-year tenor may expressly provide
that it is renewable at the option of the Issuing Bank for additional one-year periods
(which shall in no event extend beyond the 180th day after the Maturity Date) if
such Letter of Credit is cancelable upon at least 30 days’ notice given by the Issuing Bank
to the beneficiary of such Letter of Credit;




(iii) unless such Letter of Credit is in form and substance acceptable to the Issuing
Bank in its sole discretion;




(iv) unless such Borrower has delivered to the Issuing Bank a completed and executed
Letter of Credit Application; and




(v) unless such Letter of Credit is governed by the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500,
or any successor to such publication or to the International Standby Practices (1998),
International Chamber of Commerce Publication No. 590, or any successor to such publication.



If the terms of any letter of credit application referred to in the foregoing clause (iv) conflicts
with the terms of this Agreement, the terms of this Agreement shall control.


 


50









 





(b) Participations. Upon the date of the issuance or increase of a Letter of Credit
occurring on or after the Closing Date, the Issuing Bank shall be deemed to have sold to each other
Lender and each other Lender shall have been deemed to have purchased from the Issuing
Bank a participation in the related Letter of Credit Obligations equal to such Lender’s Pro
Rata Share at such date. The Issuing Bank shall promptly give notice of the issuance or increase
of each Letter of Credit to the Administrative Agent and the Lenders. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of the Issuing Bank, such Lender’s Pro Rata Share of each
payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit and not reimbursed
by a Borrower (or, if applicable, another party pursuant to its obligations under any other Loan
Document) forthwith on the date due as provided in Section 2.14(c). Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default or an Event of
Default, and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. The Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Bank
shall as promptly as possible give telephonic notification, confirmed by fax, to the Administrative
Agent and the applicable Borrower of such demand for payment and whether the Issuing Bank has made
or will make disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve such Borrower of its obligation to reimburse the Issuing Bank and the
Lenders with respect to any such payment or disbursement. The Administrative Agent shall promptly
give each Lender notice thereof.



(c) Reimbursement. If the Issuing Bank shall make any disbursement in respect of a
Letter of Credit, the Borrowers jointly and severally agree to reimburse such disbursement by
paying to the Administrative Agent an amount equal to such disbursement not later than 12:00 noon,
New York City time, on the date that such disbursement is made, if the Borrowers shall have
received notice of such disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Borrowers prior to such time on such date, then not later
than 12:00 noon, New York City time, on (i) the Business Day that the Borrowers receive such
notice, if such notice is received prior to 10:00 a.m., New York City time, on the day of receipt,
or (ii) the Business Day immediately following the day that the Borrowers receive such notice, if
such notice is not received prior to such time on the day of receipt; provided that the
Borrowers shall conclusively be deemed, subject to the conditions to borrowing set forth herein
(including the conditions stated in Section 3.02), to have requested that such payment be
financed with an Base Rate Advance in an equivalent amount and, to the extent so financed, the
Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting Base
Rate Advance. If the Borrowers fail to make such payment when due, the Administrative Agent shall
notify each Lender of the applicable disbursement, the payment then due from the Borrowers in
respect thereof and such Lender’s Pro Rata Share thereof. Promptly following receipt of such
notice, each Lender shall pay to the Administrative Agent its Pro Rata Share of the payment then
due from the Borrowers, in the same manner as provided in Section 2.02 with respect to
Revolving Advances made by such Lender (and Section 2.02 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Issuing Bank the amounts so received by it from the Lenders. If such
reimbursement is not made by any Lender to the Issuing Bank on the same day on which the Issuing
Bank shall have made payment on any such draw, such Lender shall pay interest thereon to the
Issuing Bank at a rate per annum equal to the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


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(d) Obligations Unconditional. The obligations of the Borrowers under this Agreement
in respect of each Letter of Credit shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all circumstances,
notwithstanding the following circumstances:




(i) any lack of validity or enforceability of any Letter of Credit Documents, any Loan
Document, or any term or provision therein;




(ii) any amendment or waiver of or any consent to departure from all or any of the
provisions of any Letter of Credit Document or any Loan Document;




(iii) the existence of any claim, set-off, defense or other right which either
Borrower, any other party guaranteeing, or otherwise obligated with, such Borrower, any
subsidiary or other Affiliate thereof or any other Person may have at any time against any
beneficiary or transferee of such Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank, any Lender or any other
Person, whether in connection with this Agreement, any other Loan Document, the transactions
contemplated in this Agreement or in any Letter of Credit Documents or any unrelated
transaction;




(iv) any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;




(v) payment by the Issuing Bank under such Letter of Credit against presentation of a
draft or certificate which does not strictly comply with the terms of such Letter of Credit;
or




(vi) any other act or omission to act or delay of any kind of the Issuing Bank, the
Administrative Agent the Lenders or any other Person or any other event, circumstance or
happening whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of either
Borrower’s obligations hereunder.



Without limiting the generality of the foregoing, it is expressly understood and agreed that the
absolute and unconditional obligation of each Borrower hereunder to reimburse each payment or
disbursement made by an Issuing Bank pursuant to a Letter of Credit will not be excused by the
gross negligence or willful misconduct of the Issuing Bank; provided that the foregoing
shall not be construed to excuse the Issuing Bank from liability to the Borrowers to the extent of
any damages that are caused by the Issuing Bank’s failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on
the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.


 


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(e) Prepayments of Letters of Credit. In the event that any Letters of Credit shall
be outstanding or shall be drawn and not reimbursed on the fifth Business Day prior to the Maturity
Date, the Borrowers shall on or before such date either (i) jointly and severally, pay to the
Administrative Agent an amount equal to 105% of the Letter of Credit Exposure allocable to such
Letters of Credit to be held in the LC Cash Collateral Account and applied in accordance with
paragraph (g) below or (ii) provide the Issuing Bank with a substitute letter of credit naming the
Issuing Bank as beneficiary, in form and substance and from a financial institution reasonably
satisfactory to the Issuing Bank, with a face amount equal to 105% of the aggregate Letter of
Credit Exposure allocable to such outstanding Letters of Credit.



(f) Liability of Issuing Bank. Each Borrower assumes all risks of the acts or
omissions of any beneficiary or transferee of any Letter of Credit with respect to its use of such
Letter of Credit. Neither the Issuing Bank nor any of its officers or directors shall be liable or
responsible for:




(i) the use which may be made of any Letter of Credit or any acts or omissions of any
beneficiary or transferee in connection therewith;




(ii) the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects invalid,
insufficient, fraudulent or forged;




(iii) payment by the Issuing Bank against presentation of documents which do not comply
with the terms of a Letter of Credit, including failure of any documents to bear any
reference or adequate reference to the relevant Letter of Credit; or




(iv) any other circumstances whatsoever in making or failing to make payment under any
Letter of Credit (including the Issuing Bank’s own negligence),



except that in each case, the Borrowers shall have a claim against the Issuing Bank, and
the Issuing Bank shall be liable to, and shall promptly pay to, the Borrowers, to the extent of any
direct, as opposed to consequential (claims in respect of which are hereby waived by the Borrowers
to the extent permitted by applicable law), damages suffered by the Borrowers which the Borrowers
prove were caused by the Issuing Bank’s willful misconduct or gross negligence in determining
whether documents presented under a Letter of Credit strictly comply with the terms of such Letter
of Credit it is understood that the applicable Issuing Bank 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, in making any payment under any Letter of Credit (i) the
Issuing Bank’s exclusive reliance on the documents presented to it under such Letter of Credit as
to any and all matters set forth therein, including reliance on the amount of any draft presented
under such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to such Letter of Credit
proves to be insufficient in any respect, if such document on its face appears to be in order, and
whether or not any other statement or any other document presented pursuant to such Letter of
Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in
any respect whatsoever and (ii) any noncompliance in any immaterial respect of the documents
presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute willful misconduct or gross
negligence of the Issuing Bank.


 


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(g) LC Cash Collateral Account.




(i) If the Borrowers are required to deposit funds in the LC Cash Collateral Account
pursuant to Sections 2.07(c), 2.14(e), 7.02(b) or 7.03(b),
then the Borrowers and the Administrative Agent shall establish the LC Cash Collateral
Account and the Borrowers shall execute any documents and agreements, including the
Administrative Agent’s standard form assignment of deposit accounts, that the Administrative
Agent requests in connection therewith to establish the LC Cash Collateral Account and grant
the Administrative Agent an Acceptable Security Interest in such account and the funds
therein. The Borrowers hereby pledge to the Administrative Agent and grant the
Administrative Agent a security interest in the LC Cash Collateral Account, whenever
established, all funds held in the LC Cash Collateral Account from time to time and all
proceeds thereof as security for the payment of the Obligations.




(ii) Funds held in the LC Cash Collateral Account shall be held as cash collateral for
obligations with respect to Letters of Credit and promptly applied by the Administrative
Agent at the request of the Issuing Bank to any reimbursement or other obligations under
Letters of Credit that exist or occur. To the extent that any surplus funds are held in the
LC Cash Collateral Account above 105% of the Letter of Credit Exposure during the existence
of an Event of Default the Administrative Agent may (A) hold such surplus funds in the LC
Cash Collateral Account as cash collateral for the Obligations or (B) apply such surplus
funds to any Obligations in any manner directed by the Majority Lenders. If no Default or
Event of Default exists, the Administrative Agent shall release to the Borrowers at either
Borrower’s written request any funds held in the LC Cash Collateral Account above the
amounts required by Section 2.14(e) or otherwise.




(iii) Funds held in the LC Cash Collateral Account shall be invested in Cash
Equivalents maintained with, and under the sole dominion and control of, the Administrative
Agent or in another investment if mutually agreed upon by the Borrowers and the
Administrative Agent, but the Administrative Agent shall have no other obligation to make
any other investment of the funds therein. The Administrative Agent shall exercise
reasonable care in the custody and preservation of any funds held in the LC Cash Collateral
Account and shall be deemed to have exercised such care if such funds are accorded treatment
substantially equivalent to that which the Administrative Agent accords its own property, it
being understood that the Administrative Agent shall not have any responsibility for taking
any necessary steps to preserve rights against any parties with respect to any such funds.



(h) Resignation or Removal of the Issuing Bank. The Issuing Bank may resign at any
time by giving written notice to the Administrative Agent, the Lenders and the Borrowers, such
resignation to be effective upon the appointment of a successor Issuing Bank, or, if no successor
Issuing Bank has been appointed, 60 days after the retiring Issuing Bank gives notice of its
intention to resign or receives notice of its removal. Upon any such resignation or removal, the
Majority Lenders shall have the right to appoint, and provided that no Default or Event of Default
exists, with the consent of the Borrowers (which consent shall not be unreasonably
withheld or delayed), a successor Issuing Bank. If no successor Issuing Bank shall have been
so appointed by the Majority Lenders within such time period, then the Issuing Bank may appoint,
and provided that no Default or Event of Default exists, with the consent of the Borrowers (which
consent shall not be unreasonably withheld or delayed), a successor


 


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Issuing Bank. Subject to the
next succeeding sentence, upon the acceptance of any appointment as the Issuing Bank hereunder by a
Lender that shall agree to serve as successor Issuing Bank, such successor shall succeed to and
become vested with all the interests, rights and obligations of the retiring Issuing Bank and the
retiring Issuing Bank shall be discharged from its obligations to issue additional Letters of
Credit hereunder. At the time such resignation shall become effective, the Borrowers shall pay all
accrued and unpaid fees pursuant to Sections 2.03(c)(ii) and (iii). The acceptance of any
appointment as the Issuing Bank hereunder by a successor Lender shall be evidenced by an agreement
entered into by such successor, in a form satisfactory to the retiring Issuing Bank and the
Administrative Agent, and, from and after the effective date of such agreement, (i) such successor
Lender shall have all the rights and obligations of the previous Issuing Bank under this Agreement
and the other Loan Documents and (ii) references herein and in the other Loan Documents to the term
“Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Banks, as the context shall require. After the resignation
or removal of the Issuing Bank hereunder, the retiring Issuing Bank shall remain a party hereto and
shall continue to have all the rights and obligations of the Issuing Bank under this Agreement and
the other Loan Documents with respect to Letters of Credit issued by it prior to such resignation,
but shall not be required to issue additional Letters of Credit.



Section 2.15 Mitigation Obligations; Replacement of Lenders.



(a) If any Lender requests compensation under Section 2.09, or if the Borrowers are
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.11, then such Lender shall use reasonable efforts to
promptly designate a different lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.09 or Section 2.11, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost or expense (unless the
Borrowers pay, as a condition precedent to such Lender’s agreement to take such action, for any
such cost or expense) and would not otherwise be disadvantageous to such Lender. The Borrowers
hereby, jointly and severally agree to pay all reasonable costs and expenses incurred by any Lender
in connection with any such designation or assignment.



(b) If any Lender requests compensation under Section 2.09 or if the Borrowers are
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.11, or if any Lender defaults in its obligation to fund
Loans hereunder, then the Borrowers may, at their sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to promptly assign and delegate, without
recourse, all its interests, rights and obligations under this Agreement to an assignee acceptable
to the Borrowers in their reasonable discretion (it being understood that it shall not be
unreasonable for the Borrowers to withhold their consent to an assignment to a Foreign Lender
that would subject the Borrowers to withholding in respect of this Agreement at the time of
such assignment) that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) the Borrowers shall have received the
prior written consent of the Administrative Agent and the Issuing Bank, which consent shall not
unreasonably


 


55









 






 be withheld or delayed, (ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and participations in LC Disbursements, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the
case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.09 or payments required to be made pursuant to Section
2.11, such assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior thereto, as a result of
a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such
assignment and delegation cease to apply.



ARTICLE III




CONDITIONS OF LENDING




Section 3.01 Initial Conditions Precedent. The effectiveness of the amendment and
restatement of the Existing Credit Agreement is subject to the following conditions precedent:



(a) Documentation. On or before the day on which the initial Borrowing is made or the
initial Swing Line Advance is made, or the initial Letter of Credit is issued, the Administrative
Agent and the Lenders shall have received the following, each dated on or before such day, duly
executed by all the parties thereto, each in form and substance satisfactory to the Administrative
Agent and the Lenders:




(i) this Agreement and all attached Exhibits and Schedules;




(ii) any Note requested by a Lender pursuant to Section 2.02(g) payable to the
order of such requesting Lender in the amount of its Revolving Commitment;




(iii) a certificate dated as of the Closing Date from a Responsible Officer of the
Borrowers stating that (A) all representations and warranties of such Person set forth in
this Agreement and in the other Loan Documents to which it is a party are true and correct
in all material respects; (B) no Default has occurred and is continuing; and (C) the
conditions in this Section 3.01 have been met;




(iv) to the extent any have been entered into on or after August 1, 2006, copies of
amendments to the certificate or articles of incorporation or other equivalent
organizational documents of each Loan Party, certified as of a recent date by the Secretary
of State of the state of its organization;




(v) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the
Closing Date and certifying (A) that attached thereto is a true and complete copy of any
amendments to the organizational documents of such Loan Party as in effect on the Closing
Date and at all times since a date prior to the date of the resolutions described in clause
(B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted
by the Board of Directors of such Loan Party authorizing the execution, delivery and
performance of the Loan Documents to which such Loan Party is a party and, in the case of
the Borrower, the borrowings hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect,
(C) that the certificate or articles
of incorporation or other organizational documents of such Loan Party have not been amended
since the date of the last amendment thereto shown on the certified copy thereof furnished
pursuant to clause (iv) above, and (D) as to the incumbency and specimen signature of each
officer executing any Loan Document, Notices of Borrowing or any other document delivered in
connection herewith on behalf of such Loan Party;



 


56









 






(vi) a certificate of another officer of each Loan Party as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing the certificate
pursuant to (v) above;




(vii) certificates from the appropriate Governmental Authority certifying as to the
good standing, existence and authority of each of the Loan Parties in all jurisdictions
where required by the Administrative Agent;




(viii) a favorable opinion dated as of the Closing Date of Paul, Hastings, Janofsky &
Walker LLP, counsel to the Loan Parties substantially similar to the opinion it delivered
pursuant to the Existing Credit Agreement;




(ix) a certificate from a Financial Officer of each Borrower dated as of the Closing
Date addressed to the Administrative Agent and each of the Lenders regarding the matters set
forth in Section 4.20;




(x) a copy of, or a certificate as to coverage under, the insurance policies required
by Section 5.04 and the applicable provisions of the Security Documents, each of
which shall be endorsed or otherwise amended to include a customary lender’s loss payable
endorsement and to name the Administrative Agent as an additional insured;




(xi) a Borrowing Base Report dated as of September 15, 2008;




(xii) a Compliance Certificate dated as of the Closing Date duly completed and executed
by a Financial Officer of each Borrower with respect to the July 31, 2008 financials;




(xiii) a copy of the risk management policy of the Borrowers (the “Risk Management
Policy”) in form and substance satisfactory to the Majority Lenders accompanied by a
certificate signed by a Responsible Officer certifying compliance with such Risk Management
Policy;




(xiv) copies of any amendments to Material Contracts reflected on Schedule 1.01(e) to
the Existing Credit Agreement in effect on or after August 1, 2006 and each of the Material
Contracts in effect on or after August 1, 2006 that are not reflected on Schedule 1.01(e) to
the Existing Credit Agreement, each certified as of the Closing Date by a Responsible
Officer of the Borrowers (A) as being true and correct copies of such documents as of the
Closing Date, (B) as being in full force and effect and (C) that no material term or
conditions thereof shall have been amended, modified or waived after the execution thereof
without the prior written consent of the Administrative Agent; and



(xv) such other documents, governmental certificates and agreements as the
Administrative Agent or any Lender may reasonably request.




 


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(b) Payment of Fees. On the Closing Date, the Borrowers shall have paid the fees
required to be paid to the Administrative Agent, the Arranger, and the Lenders on the Closing Date,
including, without limitation, the fees set forth in the Fee Letters and all other costs and
expenses which have been invoiced and are payable pursuant to Section 10.04.



(c) Due Diligence; Corporate Structure. The Administrative Agent and the Lenders
shall have completed satisfactory due diligence review of the assets, liabilities, business,
operations and condition (financial or otherwise) of the Parent and its Subsidiaries, and all
legal, financial, accounting, governmental, tax and regulatory matters, and fiduciary aspects of
the proposed financing and the terms and conditions of all material obligations of the Loan
Parties. The documentation reflecting the ownership, capital, corporate, tax, organizational and
legal structure of the Loan Parties shall be acceptable to the Administrative Agent.



(d) Security Documents. The Administrative Agent shall have received all appropriate
evidence required by the Administrative Agent in its sole discretion necessary to determine that
arrangements have been made for the Administrative Agent for the benefit of Secured Parties to have
an Acceptable Security Interest in the Collateral, including, without limitation, (i) the delivery
to the Administrative Agent of such financing statements under the Uniform Commercial Code for
filing in such jurisdictions as the Administrative Agent may require and (ii) lien, tax and
judgment searches conducted on Loan Parties reflecting no Liens other than Permitted Liens against
any of the Collateral as to which perfection of a Lien is accomplished by the filing of a financing
statement.



(e) Financial Statements. The Lenders shall have received true and correct copies of
(i) the Audited Financial Statements (ii) the draft unaudited consolidated balance sheets and
related statements of operations, cash flows and stockholders’ equity of the Parent and its
Subsidiaries, each as of and for the twelve-month period ended June 30, 2008 and the one-month
ended July 31, 2008 and including a reconciliation from GAAP to mark-to-market accounting, (iii)
the Projections in form and substance reasonably satisfactory to the Administrative Agent and the
Lenders, and (iv) such other financial information as the Administrative Agent may reasonably
request.



(f) Authorizations and Approvals. All Governmental Authorities and Persons shall have
approved or consented to the transactions contemplated hereby, including, without limitation, those
required in connection with the continued operation of the Parent and its Subsidiaries, to the
extent required, and such approvals shall be in full force and effect, and all
applicable waiting periods shall have expired without any action being taken or threatened
that would restrain, prevent or otherwise impose adverse conditions on this Agreement and the
actions contemplated hereby.



(g) Field Examination. The Administrative Agent shall have received a field
examination and review of the December 31, 2007 Borrowing Base in form and substance satisfactory
to the Administrative Agent.


 


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(h) No Proceeding or Litigation; No Injunctive Relief. No action, suit, investigation
or other proceeding (including, without limitation, the enactment or promulgation of a statute or
rule) by or before any arbitrator or any Governmental Authority shall be threatened or pending and
no preliminary or permanent injunction or order by a state or federal court shall have been entered
(i) in connection with this Agreement, the Secured Counterparty Contracts or any transaction
contemplated hereby or thereby or (ii) which, in any case, in the reasonable judgment of the
Administrative Agent, could reasonably be expected to cause a Material Adverse Effect.



(i) No Default. No Default shall have occurred and be continuing or would result from
such Advance or from the application of the proceeds therefrom.



(j) Representations and Warranties. The representations and warranties contained in
Article IV hereof and in each other Loan Document shall be true and correct before and after giving
effect to the Revolving Advances and to the application of the proceeds from such Revolving
Advances from the date of the Revolving Advances, as though made on and as of such date.



(k) No Material Adverse Effect. Since June 30, 2007, there has been no material
adverse change in the condition (financial or otherwise), results of operations, assets,
properties, business or prospects of the Parent and its Subsidiaries, taken as a whole.



Section 3.02 Conditions Precedent to Each Credit Event. The obligation of each Lender
to make a Revolving Advance on the occasion of each Borrowing (including the initial Borrowing) or
Convert to or Continue a Eurodollar Advance, the obligation of the Swing Line Lender to make any
Swing Line Advance, and the obligation of the Issuing Bank to issue, extend or increase Letters of
Credit shall be subject to the further conditions precedent that on the Borrowing Date, the date of
Continuation or Conversion, the date of the Swing Line Advance, or issuance, extension or increase
date of such Letters of Credit, the following statements shall be true (and each of the giving of
the applicable Notice of Borrowing or Notice of Conversion or Continuation and the acceptance by
the applicable Borrower of the proceeds of such Revolving Advance or Swing Line Advance or the
request for the issuance, extension or increase of a Letter of Credit shall constitute a
representation and warranty by such Borrower that on the date of such Revolving Advance or Swing
Line Advance, the date of such Conversion or Continuation, or the date of such issuance, extension
or increase such statements are true):



(a) the representations and warranties contained in Article IV and in each other Loan Document
are true and correct in all material respects on and as of the date of such Revolving Advance or
Swing Line Advance, Continuation or Conversion, or the issuance, extension or increase of such
Letter of Credit before and after giving effect to such Revolving Advance or
Swing Line Advance and to the application of the proceeds from such Revolving Advance or Swing
Line Advance, such Continuation or Conversion, or to the issuance, extension or increase of such
Letter of Credit, as applicable, as though made on, and as of such date;



(b) no Default has occurred and is continuing or would result from such Revolving Advance or
Swing Line Advance or from the application of the proceeds therefrom or from such issuance,
extension or increase of such Letter of Credit;


 


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(c) the Borrowing Base Availability is greater than or equal to zero after giving effect to
such Borrowing or the issuance, increase, or extension of such Letter of Credit;



(d) no material adverse change has occurred and is continuing with respect to the Collateral
detailed in the then current Borrowing Base Report; and



(e) in the case of making any Revolving Advances or Swing Line Advances, the Borrowers shall
have drawn in full the entire available amount under the Sowood Documents before the date of such
Revolving Advances or Swing Line Advances.



Section 3.03 Determinations Under Sections 3.01 and 3.02. For purposes of determining
compliance with the conditions specified in Sections 3.01 and 3.02, each Lender
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
the Lenders unless an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received written notice from such Lender prior to the
Borrowings hereunder specifying its objection thereto and such Lender shall not have made available
to the Administrative Agent such Lender’s ratable portion of such Borrowings.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES




Each Loan Party jointly and severally represents and warrants as follows:



Section 4.01 Existence; Subsidiaries. Each of the Loan Parties is (a) duly formed,
validly existing, and in good standing under the laws of the jurisdiction of its formation, (b)
duly qualified as a foreign entity and is licensed and in good standing in each jurisdiction where
its ownership, lease or operation of Property or conduct of its business requires such
qualification or license other than such failures to so qualify that could not, individually or in
the aggregate reasonably be expected to have a Material Adverse Effect. Each of the Loan Parties
is licensed and in good standing to supply natural gas or electricity or related products by each
of the state public utility commissions identified on Schedule 4.01, as the same may be
updated from time to time.



Section 4.02 Power and Authority. Each of the Loan Parties has the requisite power
and authority and all requisite governmental
licenses, authorizations, consents and approvals to (a) own its assets and carry on its
business, including without limitation, to supply natural gas or electricity or related products to
End Users in each of the jurisdictions identified in Schedule 4.01, and (b) execute,
deliver and perform the Loan Documents to which it is a party and to perform its obligations
thereunder. The execution, delivery, and performance by each Loan Party of this Agreement and the
other Loan Documents to which it is a party and the consummation of the transactions contemplated
hereby (a) have been duly authorized by all necessary organizational action, (b) do not and will
not (i) contravene the terms of any such Person’s organizational documents, (ii) violate any
material Legal Requirement, or (iii) conflict with or result in any breach or contravention of, or
the creation of any Lien under (A) the provisions of any indenture, instrument or material
agreement to which such Loan Party is a party or is subject, or by which it, or its Property, is
bound or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject.


 


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Section 4.03 Authorization and Approvals. No authorization, approval, consent,
exemption, or other action by, or notice to or filing with, any Governmental Authority or any other
Person is necessary or required on the part of any Loan Party in connection with (a) the execution,
delivery and performance by, or enforcement against, any Loan Party of this Agreement and the other
Loan Documents to which it is a party or the consummation of the Transactions or the transactions
contemplated hereby or thereby, (b) the grant by any Loan Party of the Liens granted by it pursuant
to the Loan Documents, or (c) the perfection or maintenance of the Liens created under the Loan
Documents (including the first priority nature thereof) (other than the filing of UCC-1 Financing
Statements), all of which have been duly obtained, taken, given or made and are in full force and
effect, except actions by, and notices to or filings with, Governmental Authorities (including,
without limitation, the SEC) that may be required in the ordinary course of business from time to
time or that may be required to comply with the express requirements of the Loan Documents
(including, without limitation, to release existing Liens on the Collateral or to comply with
requirements to perfect, and/or maintain the perfection of, Liens created for the benefit of the
Secured Parties).



Section 4.04 Enforceable Obligations. 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 a 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, except as such
enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, or similar law affecting creditors’ rights generally or general principles
of equity.



Section 4.05 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 Parent and its Subsidiaries
as of the date thereof and their results of operations 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 Parent and its Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Debt.



(b) The Projections have been prepared in good faith by the Parent, based on assumptions
believed by the Parent to be reasonable on the date hereof.



(c) Schedule 4.05 sets forth all material indebtedness and other liabilities, direct
or contingent, of the Parent and its Subsidiaries as of the date of such financial statements,
including liabilities for taxes, contingent liabilities and Debt.


 


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(d) Since June 30, 2007, there has been no event or circumstance, either individually or in
the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.



(e) The Borrowers are in compliance with the covenants set forth in Sections 6.17 through 6.22
as of June 30, 2008 and July 31, 2008 based on the draft financials ended June 30, 2008 and July
31, 2008.



Section 4.06 True and Complete Disclosure. As of the Closing Date, each Loan Party
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, could reasonably be expected to result in a
Material Adverse Effect. None of (a) the Confidential Information Memorandum or (b) any other
information, report, financial statement, exhibit or schedule furnished by or on behalf of any Loan
Party to the Administrative Agent or any Lender in connection with the negotiation of any Loan
Document or included therein or delivered pursuant thereto contained, contains or will contain any
misstatement of material fact or omitted, omits or will omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were, are or
will be made, not misleading; provided that, with respect to projected financial
information, the Loan Parties represent only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.



Section 4.07 Litigation. There are no actions, suits, proceedings, claims or disputes
pending or, to the knowledge of any Responsible Officer of a Loan Party after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against any Loan Party or any of their 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 thereby, or (b) either individually or in
the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse
Effect. No regulatory commission is currently conducting and has conducted within the five-year
period immediately preceding the date hereof, an investigation of the Parent or any of its
Subsidiaries, other than an investigation conducted by such regulatory commission in its routine
general administrative practice.



Section 4.08 Compliance with Laws. None of the Loan Parties or any of the
Subsidiaries or any of the Loan Parties’ operation of their respective material properties (a) is
in violation of, nor will the continued operation by the Loan Parties of their material properties
as currently conducted violate, any Legal Requirement (including any Environmental Law, but
excluding any Legal Requirement with respect to their ability to supply natural gas or electricity
or related products to End Users in each of the jurisdictions identified in Schedule 4.01)
the violation of which could reasonably be expected to have a Material Adverse Effect, (b) is in
default with respect to any judgment, writ, injunction, decree or order of any Governmental
Authority the default of which could reasonably be expected to have a Material Adverse Effect, or
(c) in material violation of any Legal Requirement with respect to their ability to supply natural
gas or electricity or related products to End Users in each of the jurisdictions identified in
Schedule 4.01.




 


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Section 4.09 No Default. None of the Loan Parties or any of its Subsidiaries is a
party to any agreement or instrument or subject to any corporate restriction that has resulted or
could, either individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. None of the Parent or any of its Subsidiaries is in default in any manner under any
provision of any indenture or other agreement or instrument evidencing Debt, any Material Contract
or any other material agreement or instrument to which it is a party or by which it or any of its
properties or assets are or may be bound, where such default could reasonably be expected to result
in a Material Adverse Effect. 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.



Section 4.10 Subsidiaries; Corporate Structure. Schedule 4.10 sets forth as
of the Closing Date a list of all Subsidiaries of the Parent and, as to each such Subsidiary, the
jurisdiction of formation and the outstanding Equity Interests therein and the percentage of each
class of such Equity Interests owned by the Parent and the Subsidiaries. The Equity Interests
indicated to be owned by the Parent and the Subsidiaries on Schedule 4.10 are fully paid
and non-assessable and are owned by the persons indicated on such Schedule, free and clear of all
Liens (other than Permitted Liens).



Section 4.11 Condition of Properties.



(a) Each Loan Party 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 minor defects in title that do not materially interfere with its ability to conduct its
business as currently conducted or to utilize such properties and assets for their intended
purposes. None of the property of Loan Parties is subject to Liens, other than Permitted Liens.



(b) Each Loan Party has complied in all material respects with all obligations under all
material leases to which it is a party and all such leases are in full force and effect. Each Loan
Party enjoys peaceful and undisturbed possession under all such material leases.



(c) Neither the business nor the material Properties of any Loan Party has been affected as a
result of any fire, explosion, earthquake, flood, drought, windstorm, accident, strike or other
labor disturbance, embargo, requisition or taking of Property or cancellation of
contracts, permits or concessions by a Governmental Authority, riot, activities of armed
forces or acts of God or of any public enemy.


 


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Section 4.12 Environmental Condition.



(a) Except as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, the Loan Parties (i) have obtained all Environmental Permits necessary for
the ownership and operation of their respective material Properties and the conduct of their
respective businesses; (ii) have been and are in compliance with all terms and conditions of such
Environmental Permits and with all other requirements of applicable Environmental Laws; (iii) have
not received notice of any violation or alleged violation of any Environmental Law or Environmental
Permit; and (iv) are not subject to any actual or contingent Environmental Claim.



(b) None of the present or previously owned or operated Properties of the Loan Parties or of
any of their present or former Subsidiaries, wherever located, (i) has been placed on or proposed
to be placed on the National Priorities List, CERCLIS, or their state or local analogs, nor has the
Parent or any of its Subsidiaries been otherwise notified of the designation, listing or
identification of any Property of such Loan Party or any of its present or former Subsidiaries as a
potential site for removal, remediation, cleanup, closure, restoration, reclamation, or other
response activity under any Environmental Laws (except as such activities may be required by permit
conditions); (ii) is subject to a Lien, arising under or in connection with any Environmental Laws,
that attaches to any revenues or to any Property owned or operated by the Loan Parties or any of
their present or former Subsidiaries, wherever located; or (iii) has been the site of any Release
(as defined under any Environmental Law) of Hazardous Substances from present or past operations
which has caused at the site or at any third-party site any condition that has resulted in or could
reasonably be expected to result in the need for Response (as defined under any Environmental Law)
and none of the Loan Parties or any of their present or former Subsidiaries has generated or
transported or has caused to be generated or transported Hazardous Substances to any third party
site which could reasonably be expected to result in the need for Response.



(c) Without limiting the foregoing, the present and future liability, if any, of the Parent or
any of its Subsidiaries, which could reasonably be expected to arise in connection with
requirements under Environmental Laws could not reasonably be expected to have a Material Adverse
Effect.



Section 4.13 Insurance.



(a) Schedule 4.13 sets forth a true, complete and correct description of all insurance
maintained by the Loan Parties as of the Closing Date. As of such date, such insurance is in full
force and effect and all premiums have been duly paid.



(b) The properties of the Loan Parties are insured with financially sound and reputable
insurance companies not Affiliates of any Loan Party, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where applicable Loan Party operates.


 


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Section 4.14 Taxes. Each Loan Party has filed all material Federal, state and other
tax returns and reports required to be filed, and have paid all material Federal, state and other
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 contested in
good faith by appropriate proceedings diligently conducted and for which adequate reserves have
been provided in accordance with GAAP. There is no written proposed tax assessment against the
Parent or any Subsidiary thereof that would, if made, have a Material Adverse Effect.



Section 4.15 ERISA Compliance.



(a) Except as could not, individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect, the Parent and its ERISA Affiliates is in compliance in all material
respects with the applicable provisions of ERISA and the Code and the regulations and published
interpretations thereunder.



(b) Except as could not, individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect, each Plan is in compliance in all material respects 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 Parent, nothing has occurred which would prevent, or cause the
loss of, such qualification. The Parent and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan.



(c) (i) No ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events, could reasonably be expected to result in material
liability of the Parent or any of its ERISA Affiliates; (ii) no Pension Plan has any Unfunded
Pension Liability; (iii) neither the Parent 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); (iv) neither the Parent 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 (v)
neither the Parent nor any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.



Section 4.16 Security Interests.



(a) The Pledge Agreement is effective to create in favor of the Administrative Agent, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in such Pledge Agreement) and, when such Collateral (to the extent such
Collateral constitutes a certificated security under the applicable Uniform Commercial Code) is
delivered to such Administrative Agent, such Pledge Agreement shall constitute a fully perfected
first priority Lien on, and security interest in, all right, title and interest of the pledgors
thereunder in such Collateral, in each case prior and superior in right to any other person.


 


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(b) The Security Agreement is effective to create in favor of the Administrative Agent, for
the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in such Security Agreement) and, when financing statements in appropriate
form are filed in the offices specified on Schedule 1 to the Security Agreement, such Security
Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the grantors thereunder in such portion of the Collateral in which a security
interest may be perfected by the filing of a financing statement under the applicable Uniform
Commercial Code, in each case prior and superior in right to any other person, other than Permitted
Liens.



Section 4.17 Bank Accounts. Schedule 4.17 sets forth the account numbers and
locations of all bank accounts of the Loan Parties as of the Closing Date.



Section 4.18 Labor Relations. Except as could not, individually or in the aggregate,
be reasonably expected to have a Material Adverse Effect, there (a) is no unfair labor practice
complaint pending against the Parent or any of its Subsidiaries or, to the knowledge of any
Responsible Officer of a Loan Party, threatened against any of them, before the National Labor
Relations Board (or any successor United States federal agency that administers the National Labor
Relations Act), and no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Parent or any of its Subsidiaries or, to the
knowledge of any Responsible Officer of a Loan Party, threatened against any of them, (b) are no
strikes, lockouts, slowdowns or stoppage against the Parent or any Subsidiary pending or, to the
knowledge of any Loan Party, threatened and (c) no union representation petition existing with
respect to the employees of the Parent or any of its Subsidiaries and no union organizing
activities are taking place. The hours worked by and payments made to employees of the Parent and
the Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable
federal, state, provincial, local or foreign law dealing with such matters, except where such
violation, either individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. All payments due from the Parent or any Subsidiary, or for which any
claim may be made against the Parent or any Subsidiary, on account of wages and employee health and
welfare insurance and other benefits, have been paid or accrued as a liability on the books of the
Parent or such Subsidiary, except where the failure to do the same, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect. The
consummation of the transactions contemplated hereby will not give rise to any right of termination
or right of renegotiation on the part of any union under any collective bargaining agreement to
which the Parent or any Subsidiary is bound.



Section 4.19 Intellectual Property. Each Loan Party owns or is licensed or otherwise
has full legal right to use all of the patents, trademarks, service marks, trade names, copyrights,
franchises, authorizations and other rights that are reasonably necessary for the operation of its
business, without conflict with the rights of any other Person with respect thereto that could
reasonably be expected to have a Material Adverse Effect.


 


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Section 4.20 Solvency. Immediately following the making of each Revolving Advance and
Swing Line Advance and after giving effect to the application of the proceeds of each Revolving
Advance and Swing Line Advance, (a) the fair value of the assets of each of the Borrowers, Holdings
and the Loan Parties, taken as a whole, will exceed their respective debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of the property of each
of the Borrowers, Holdings and the Loan Parties, taken as a whole, will be greater than the amount
that will be required to pay the probable liability of their respective debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become
absolute and matured; (c) each of the Borrowers, Holdings and the Loan Parties, taken as a whole,
will be able to pay their respective debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and (d) each of the Borrowers, Holdings
and the Loan Parties, taken as a whole, will not have unreasonably small capital with which to
conduct the business in which they are engaged as such business is now conducted and is proposed to
be conducted following the Closing Date.



Section 4.21 Senior Indebtedness. The obligations of the Loan Parties hereunder
constitute senior indebtedness (however denominated) in respect of any Subordinated Indebtedness of
the Parent and its Subsidiaries.



Section 4.22 Margin Regulations. None of the Loan Parties is engaged and will engage,
principally or as one of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U), or extending credit for the purpose of purchasing or
carrying margin stock. No part of the proceeds of any Revolving Advance or Swing Line Advance will
be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry any margin stock (within the meaning of Regulation U) or to refinance any Debt
originally incurred for such purpose, or for any other purpose that entails a violation of, or that
is inconsistent with, the provisions of the Regulations of the Board, including Regulation T, U or
X.



Section 4.23 Investment Company Act. None of the Parent, any Person Controlling the
Parent, or any Subsidiary is or is required to be registered as an “investment company” under the
Investment Company Act of 1940.



Section 4.24 Names and Locations. As of the Closing Date, Schedule 4.24 sets forth
(a) all legal names and all other names (including trade names, fictitious names and business
names) under which the Loan Parties currently conduct business, or has at any time during the past
five years conducted business, (b) the name of any entity which any Loan Party has acquired in
whole or in part or from whom any Loan Party has acquired a significant amount of assets within the
past five years, (c) the state or other jurisdiction of organization or incorporation for each Loan
Party and sets forth each Loan Party’s organizational identification number or specifically
designates that one does not exist, and (d) the location of all offices of the Loan Parties and the
locations of all inventory of the Borrowers and their Subsidiaries.



Section 4.25 Revisions or Updates to the Schedules. Should any of the information or
disclosures provided on Schedules 1.01(c), 4.01 or 4.24 originally attached hereto become
outdated or incorrect in any material respect, the Borrowers from time to time shall deliver to the
Administrative Agent and the Lenders such revisions or updates to such schedule(s) whereupon such
schedules shall be deemed to be amended by such revisions or updates, as may be necessary or
appropriate to update or correct such schedule(s), provided that, notwithstanding the foregoing, no
such revisions or updates shall be deemed to have amended, modified, or superseded any such
schedules as originally attached hereto, or to have cured any breach of warranty or representation
resulting from the inaccuracy or incompleteness of any such schedules, unless and until the
Administrative Agent shall have accepted in writing such revisions or updates to any such
schedules.


 


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ARTICLE V




AFFIRMATIVE COVENANTS




So long as the Revolving Advances or Swing Line Advances or any amount under any Loan Document
shall remain unpaid, any Lender shall have any Revolving Commitment hereunder, or there shall exist
any Letter of Credit Exposure, unless the Majority Lenders shall otherwise consent in writing, each
Loan Party shall:



Section 5.01 Preservation of Existence, Etc. Except as permitted by Section
6.03, (a) preserve, renew and maintain in full force and effect its legal existence and good
standing under the Legal Requirements of the jurisdiction of its formation, (b) in the case of the
Borrowers and their Subsidiaries, be licensed and in good standing to supply natural gas or
electricity or related products by each of the state public utility commissions identified on
Schedule 4.01 so long as the such Loan Party is still supplying natural gas or electricity
or related products in the relevant jurisdiction, (c) take all reasonable action to obtain,
preserve, renew, extend, maintain and keep in full force and effect all rights, privileges,
permits, licenses, authorizations and franchises necessary or desirable in the normal conduct of
its business, including, in the case of the Borrowers and their Subsidiaries, those rights,
privileges, permits, licenses, authorizations and franchises necessary to supply natural gas or
electricity or related products to End Users in each of the jurisdictions identified in
Schedule 4.01 so long as the such Loan Party is still supplying natural gas or electricity
or related products in the relevant jurisdiction, and (d) qualify and remain qualified as a foreign
entity in each jurisdiction in which qualification is necessary in view of its business and
operations or the ownership of its Properties other than such failures to so qualify that could
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



Section 5.02 Compliance with Laws, Etc. Comply (a) with all Legal Requirements
(including without limitation, all Environmental Laws and ERISA but excluding, in the case of the
Borrowers and their Subsidiaries, any Legal Requirement with respect to their ability to supply
natural gas or electricity or related products to End Users in each of the jurisdictions identified
in Schedule 4.01) applicable to it or to its business or property, except in such instances
in which such Legal Requirement is being contested in good faith by appropriate proceedings
diligently conducted and for which the failure
to so comply could not reasonably be expected to have a Material Adverse Effect and (b) in all
material respects with, in the case of the Borrowers and their Subsidiaries, any Legal Requirement
with respect to their ability to supply natural gas or electricity or related products to End Users
in each of the jurisdictions identified in Schedule 4.01.



Section 5.03 Maintenance of Property. (a) Maintain and preserve all Property material
to the conduct of its business and keep such Property in good repair, working order and condition,
(b) from time to time make, or cause to be made, all needful and proper repairs, renewals,
additions, improvements and replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times and (c) use the standard of care
typical in the industry in the operation and maintenance of its facilities.


 


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Section 5.04 Maintenance of Insurance.



(a) Maintain with financially sound and reputable insurance companies not Affiliates of any
Loan Party, insurance with respect to its Properties and business, to the extent and against loss
or damage of the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under similar circumstances
by such other Persons and such other insurance as may be required by law.



(b) (i) Cause all such policies covering any Collateral to be endorsed or otherwise amended to
include a customary lender’s loss payable endorsement, in form and substance reasonably
satisfactory to the Administrative Agent, which endorsement shall provide that, from and after the
Closing Date, if the insurance carrier shall have received written notice from the Administrative
Agent of the occurrence of an Event of Default, the insurance carrier shall pay all proceeds
otherwise payable to a Loan Party under such policies directly to the Administrative Agent; (ii)
deliver original or certified copies of all such policies to the Administrative Agent; cause each
such policy to provide that it shall not be canceled, modified or not renewed upon not less than 30
days’ prior written notice thereof by the insurer to the Administrative Agent; and (iii) deliver to
the Administrative Agent, prior to the cancellation, modification or nonrenewal of any such policy
of insurance, a copy of a renewal or replacement policy (or other evidence of renewal of a policy
previously delivered to the Administrative Agent) together with evidence satisfactory to the
Administrative Agent of payment of the premium therefor.



Section 5.05 Payment of Taxes, Etc. Pay and discharge as the same shall become due
and payable, all its obligations and liabilities in accordance with their terms, including (a) all
material taxes, assessments and governmental charges or levies imposed upon it or upon its income
or profits or in respect of its Property, 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 applicable Loan Party; (b) all lawful claims which, if unpaid, might by law
become a Lien upon its Property in violation of this Agreement; and (c) all Debt, as and when due
and payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Debt, including, without limitation, the Intercreditor Agreement.



Section 5.06 Reporting Requirements. Deliver to the Administrative Agent and each
Lender, in form and detail reasonably satisfactory to the Administrative Agent and the Lenders:



(a) Audited Annual Financials. As soon as available and in any event not later than
120 days after the end of each fiscal year of the Parent (beginning for the fiscal year ending June
30, 2008), copies of (i) the audited consolidated and unaudited consolidating balance sheets of the
Parent and its Subsidiaries, in each case, as at the end of such fiscal year, together with, in
each case, the related audited consolidated and unaudited consolidating statements of income or
operations, shareholders’ equity and cash flows for such fiscal year, and the notes thereto, all in
reasonable detail and setting forth in each case in comparative form the audited consolidated
figures as of the end of and for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP (subject only to normal year-end audit adjustments and the absence of
footnotes with respect to any consolidating statements) and (x) in the case of each of such audited
consolidated financial statements (excluding any statements in comparative form to be corresponding
figures from the consolidated budget), accompanied by a report and
opinion of an



 


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 independent
certified public accountant of nationally recognized standing reasonably acceptable to the Lenders,
which report and opinion shall be prepared in accordance with generally accepted auditing standards
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 and shall state that such consolidated
financial statements present fairly, in all material respects, the consolidated financial position
of the Parent and its respective Subsidiaries as at the end of such fiscal year and their
consolidated results of operations and cash flows for such fiscal year in conformity with GAAP; or
words substantially similar to the foregoing and that the examination by such accountants in
connection with such consolidated financial statements has been made in accordance with generally
accepted auditing standards, and (y) in the case of such unaudited consolidating financial
statements, certified by a Financial Officer of the Parent that such financial statements have been
prepared in accordance with GAAP consistently applied and presents fairly, in all material
respects, the information contained therein as at the date and for the periods covered thereby and
(ii) the consolidated and consolidating unaudited Non-GAAP Financial Reporting financial statements
of the Parent and its Subsidiaries for such fiscal year including a reconciliation to the GAAP
financial statements;



(b) Monthly Financials. As soon as available and in any event not later than 45 days
after the end of each month (beginning with the month ending August 31, 2008), (i) a consolidated
and, for the end of March, June, September, and December, consolidating balance sheet of the Parent
and its Subsidiaries as at the end of such month, and the related consolidated and, for the end of
March, June, September, and December, consolidating statements of income or operations,
shareholders’ equity and cash flows for such month and for the portion of the Parent’s fiscal year
then ended, and setting forth in each case with respect to such consolidated statements, in
comparative form the consolidated figures for the corresponding month of the previous fiscal year
and the corresponding portion of the previous fiscal year, all in reasonable detail and certified
by a Financial Officer of the Parent as fairly presenting in all material respects the financial
condition, results of operations, shareholders’ equity and cash flows of the Parent and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes and (ii) the Parent’s and its Subsidiaries’ consolidated and, for the end of
March, June, September, and December, consolidating Non-GAAP Financial
Reporting financial statements including a reconciliation with the GAAP financial statements
described in the foregoing clause (i) and a management discussion and analysis of the financial
results;



(c) Compliance Certificates. (i) Concurrently with the delivery of the financial
statements referred to in Section 5.06(a), a certificate of its independent certified
public accountants rendering the report thereon stating whether, in connection with their audit
examination, anything has come to their attention which would cause them to believe that any
Default or Event of Default with respect to accounting matters existed on the date of such
financial statements, and if such a condition or event has come to their attention, specifying in
reasonable detail the nature and period, if known, of existence thereof and (ii) concurrently with
the delivery of the financial statements referred to in Sections 5.06(a) and (b), a
duly completed Compliance Certificate signed by a Financial Officer of the Parent;


 


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(d) Management Letters. Promptly upon receipt thereof, copies of any detailed audit
reports, management letters and any reports as to material inadequacies in accounting controls
(including reports as to the absence of any such inadequacies) or recommendations submitted to the
board of directors (or the audit committee of the board of directors) of the Parent by independent
accountants in connection with the accounts or books of the Parent or any Subsidiary thereof, or
any audit of any of them;



(e) Borrowing Base Reports. (i) Within seven Business Days after the fifteenth and
last Business Day of each calendar month, a Borrowing Base Report as of the end of such applicable
period, together with supporting documentation reasonably acceptable to the Administrative Agent,
including without limitation, aggregate account receivable agings for each LDC and of End Users by
LDC, accounts payable agings, aggregate account receivables past due for each LDC and End Users by
LDC, a schedule of Imbalances and Eligible LDC Residual Contract Rights, copies of all Imbalance
statements from LDCs received since the delivery of the last Borrowing Base Report, potential First
Purchaser Liens, cash reconciliations, a schedule of inventory balances, a schedule of any net mark
to market gains or losses with respect to Swap Contracts, and a listing of outstanding loans,
letters of credit and offset reconciliations, each in such reasonable detail and in a format as the
Administrative Agent may require and (ii) within 60 days following the last day of each fiscal
quarter, a Borrowing Base Report as of the last day of such fiscal quarter, together with
supporting documentation reasonably acceptable to the Administrative Agent, setting forth (A) the
actual Borrowing Base as of the end of such fiscal quarter, (B) any significant discrepancies in
the Borrowing Base since the date of the Borrowing Base Report delivered on the last day of such
fiscal quarter and (C) a statement explaining the reasons for any such discrepancies;



(f) Risk Management Policy Certification and Report. (i) Within seven Business Days
after the fifteenth and last Business Day of each calendar month, a certificate in substantially
the form of the attached Exhibit K from a Responsible Officer of a Borrower certifying that the
Borrowers are in compliance with the Borrower’s Risk Management Policy; (ii) simultaneously with
any modification of the Risk Management Policy, a written notice with a description of such
modification, a copy of such modification, and, if the Majority Lenders have not consented to such
modification, a certification that the modification does not materially change the Risk Management
Policy; and (iii) within seven Business Days after the last Business
Day of each calendar month, a monthly comprehensive risk management report in a format
reasonably acceptable to the Administrative Agent, setting forth the Borrowers’ overall hedging
positions, forward book, inventory positions, and transportation and storage capacities;



(g) Marketing Report. Within seven Business Days after the last Business Day of each
calendar month, a monthly comprehensive marketing report detailing (i) the Borrowers’ and their
Subsidiaries’ acquisition of any new End User accounts by LDC and by fixed or floating price
contract and specifying the weighted average costs for each new End User and whether such
acquisitions were through organic customer growth or acquisition from a third party and (ii) the
natural gas and electricity break even price for each LDC, all in a format reasonably acceptable to
the Administrative Agent;



(h) Securities Law Filings and other Public Information. 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 Parent, and copies of all annual, regular, periodic
and special reports and registration statements which the Parent may file or be required to file
with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934 or any other
securities Governmental Authority, and not otherwise required to be delivered to the Administrative
Agent pursuant hereto;


 


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(i) USA Patriot Act. Promptly, following a request by any Lender, all documentation
and other information that such Lender reasonably requests in order to comply with its ongoing
obligations under applicable “know your customer” and anti-money laundering rules and regulations,
including the USA Patriot Act; and



(j) Parent Guarantees. (i) With the delivery of the financial statements under
Section 5.01(b), a list of the Parent’s guarantees of obligations of its Subsidiaries, including
the name of each beneficiary and the maximum amount guaranteed, and (ii) promptly, and in any event
with five Business Days after receipt thereof, any notice of default or claim delivered under any
such guarantees; and



(k) Other Information. Such other information respecting the business, Properties or
Collateral, or the condition or operations, financial or otherwise, of the Parent and its
Subsidiaries as the Administrative Agent or any Lender may from time to time reasonably request.



Section 5.07 Other Notices. Deliver to the Administrative Agent and each Lender
prompt written notice of the following:



(a) Defaults. The occurrence of any Default or Event of Default or any other Debt of
any Loan Party being declared when due and payable before its expressed maturity, or any holder of
such Debt having the right to declare such Debt due and payable before its expressed maturity,
because of the occurrence of any default (or any event which, with notice and/or the lapse of time,
shall constitute any default) under such Debt;



(b) Litigation. The filing or commencement of, or any threat or notice of intention
of any person to file or commence, any action, suit or proceeding, whether at law or in equity or
by or before any Governmental Authority, against the Parent, any Subsidiary or any Affiliate
thereof, or any material development in any such action, suit, proceeding, that, in either
case, could reasonably be expected to result in a Material Adverse Effect; and



(c) ERISA Events. The occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in liability of the
Loan Parties in an aggregate amount exceeding $500,000.00;



(d) Environmental Notices. A copy of any form of notice, summons, material
correspondence or citation received from any Governmental Authority or any other Person, concerning
(i) material violations or alleged violations of Environmental Laws, which seeks or threatens to
impose liability therefor, (ii) any material action or omission on the part of the Parent or any of
its Subsidiaries in connection with Hazardous Material, (iii) any notice of potential
responsibility or liability under any Environmental Law, or (iv) concerning the filing of a Lien
other than a Permitted Lien upon, against or in connection with the Parent or any of its
Subsidiaries, or any of their leased or owned material Property, wherever located;



 


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(e) Collateral. Furnish to the Administrative Agent:




(i) written notice of:




(A) any change of its legal name, corporate structure, jurisdiction of
organization or formation or its organizational identification number within 30 days
before the occurrence thereof;




(B) an Asset Disposition within 30 days before the occurrence thereof;




(C) a casualty or condemnation with respect to any portion of Collateral with a
market value in excess of $500,000.00 promptly and in any event within five Business
Days after the occurrence thereof;




(D) an account in excess of $250,000.00 or accounts in excess of $500,000.00 in
the aggregate becoming subject to any dispute or claim or other circumstances known
to any Loan Party that may materially impair the validity or collectibility of such
accounts promptly and in any event within five Business Days after the occurrence
thereof;




(E) any material correspondence received by any Loan Party from any insurer
with respect to any insurance maintained in accordance with Section 5.04 promptly
and in any event with five Business Days after the receipt thereof;




(F) a Borrower or any of its Subsidiaries holding or obtaining any (1) Chattel
Paper, (2) Instrument, or (3) Letter of Credit, each in excess of $250,000.00
individually and $500,000.00 in the aggregate promptly and in any event with two
Business Days after the receipt thereof;




(G) Collateral with an aggregate value in excess of $500,000.00 at any time
being in the possession or control of any warehouse or bailee not previously
disclosed promptly and in any event within 10 Business Days before the
occurrence thereof;




(H) Collateral with an aggregate value in excess of $500,000.00 being of a type
where a Lien may be registered, recorded or filed under, or notice thereof given
under, any federal statute or regulation or any material Collateral constitutes a
claim against the United States of America, or any State or municipal government or
any department, instrumentality or agency thereof, the assignment of which claim is
restricted by law promptly and in any event within five Business Days of the
existence thereof;




(I) a new LDC with which a Borrower or any of its Subsidiaries has entered into
any agreement and a copy of all such agreements within five Business Days after the
occurrence thereof; and


 


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(J) any notice received from an LDC of default or claim under any agreement
between a Borrower or any of its Subsidiaries and such LDC promptly and in any event
within two Business Days after the receipt thereof and




(ii) from time to time upon request, statements and schedules further identifying,
updating, and describing the Collateral and such other information, reports and evidence
concerning the Collateral, as Collateral Agent may reasonably request, all in reasonable
detail;



(f) Casualties and Takings. Any actual or constructive loss by reason of fire,
explosion, theft or other casualty, of any Property of any Loan Party or any taking of title to, or
the use of, any Property of any Loan Party pursuant to eminent domain or condemnation proceedings
or any settlement or compromise thereof, in each case, with a value equal to or greater than
$1,000,000.00, and a certificate of a Responsible Officer of the Borrowers describing the nature
and status of such occurrence;



(g) Material Contracts. Prompt written notice of (i) any nonrenewal of the initial
term or any renewal term under any Material Contract, (ii) any event or condition which results in,
or could be expected to result in, an early termination or cancellation of any Material Contract,
and (iii) any default by a Borrower or, to the knowledge of a Borrower, any other Person party to
any Material Contract; and



(h) Material Changes. Any development that has resulted in, or could reasonably be
expected to result in, a Material Adverse Effect.



Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer
of the Borrowers setting forth details of the occurrence referred to therein and stating what
action the Borrowers have taken and propose to take with respect thereto. Each notice pursuant to
Section 5.07(a) shall describe with particularity any and all provisions of this Agreement
and any other Loan Document that have been breached.



Section 5.08 Books and Records; Inspection. (a) Keep proper records and books of
account in which full, true and correct
entries will be made in accordance with GAAP and all Legal Requirements, reflecting all
financial transactions and matters involving the assets and business of the Loan Parties and their
Subsidiaries; (b) maintain such books and records of account in material conformity with all
applicable requirements of any Governmental Authority having regulatory jurisdiction over the Loan
Parties and their Subsidiaries, as the case may be; (c) from time-to-time during regular business
hours upon reasonable prior notice to the applicable Loan Party or Subsidiary, permit
representatives and independent contractors of the Administrative Agent and each Lender, for
purposes of performing a Collateral field examination, (i) to visit and inspect any of its
Properties, (ii) to examine its corporate, financial and operating records, and make copies thereof
or abstracts therefrom and (iii) to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants, all at the expense of the Borrowers and at such
reasonable times during normal business hours and as often as may be reasonably desired, (d) permit
the Administrative Agent, upon request, to conduct, or hire a third party to conduct, on behalf of
the Secured Parties, a review of position reports and Risk Management Policies of the Borrowers and
their Subsidiaries, and (e) within 180 days after the Closing, permit the Administrative Agent or
its designee to perform, on behalf of the Secured Parties and at the expense of the Borrowers, one
assessment of the Borrowers’ procedures, policies and systems relating to the Risk Management
Policy. Unless a Default has occurred and is continuing, the Collateral field exams shall be
performed no more often than on a semi-annual basis commencing on the date three months following
the Closing Date at the Borrowers’ expense. Any additional Collateral field examinations shall be
at the Lenders’ expense unless a Default has occurred and is continuing at the time of such review.


 


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Section 5.09 Use of Proceeds. Use the proceeds of the Revolving Advances, the Swing
Line Advances, and Letters of Credit only for working capital purposes, including the purchase and
sale of natural gas or electricity, including to facilitate the Borrowers’ and their Subsidiaries’
purchase, transportation, storage and sale of natural gas or electricity, for Swap Contracts
related to hedging of natural gas or electricity, for margin financing of natural gas or
electricity.



Section 5.10 Nature of Business. Maintain and operate such business in substantially
the manner in which it is presently conducted and operated.



Section 5.11 Risk Management Policy. Comply with the Risk Management Policy delivered
on the Closing Date and any amendments to such Risk Management Policy.



Section 5.12 Additional Guarantors. Notify the Administrative Agent at the time that
any Person becomes a Subsidiary of the Parent, and promptly thereafter (and in any event within 30
days), (a) cause such Person to (i) become a Guarantor by executing and delivering to the
Administrative Agent a counterpart of the Guaranty or such other document as the Administrative
Agent shall deem appropriate for such purpose, (ii) deliver to the Administrative Agent documents
of the types referred to in clauses Section 3.01(a)(viii), (ix) and (x) and
favorable opinions of counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in clause (i)), all in
form, content and scope reasonably satisfactory to
the Administrative Agent and (iii) execute such other Security Documents as the Administrative
Agent or any Lender may reasonably request, in each case to secure the Obligations and (b) cause
the stockholder of such Person to execute a Pledge Agreement pledging 100% of its interests in the
Equity Interest of such Person to secure the Obligations and such evidence of corporate authority
to enter into and such legal opinions in relation to such Pledge Agreement as the Administrative
Agent may reasonably request, along with share certificates pledged thereby and appropriately
executed stock powers in blank; provided that, no new Subsidiary that is a controlled foreign
corporation under Section 957 of the Code shall be required to become a Guarantor or enter into any
Security Documents if such Guaranty or the entering into of such Security Documents would
reasonably be expected to result in any material incremental income tax liability and the Parent or
any Subsidiary domiciled in the United States that is an equity holder of a controlled foreign
corporation under Section 957 of the Code shall only be required to pledge 65% of the Equity
Interest of such controlled foreign corporation pursuant to the applicable Pledge Agreement.



 


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Section 5.13 Additional Collateral Requirements.



(a) Accounts. At their own expense, use its reasonable efforts to assure prompt
payment of all amounts due or to become due under accounts;



(b) Deposit Accounts. Establish lockboxes and blocked accounts (collectively,
“Blocked Accounts”) in the name of a Borrower or any of its Subsidiaries with such banks
(“Collecting Banks”) as are reasonably acceptable to the Administrative Agent (subject to
irrevocable instructions acceptable to Administrative Agent as hereinafter set forth) or with the
Administrative Agent and all invoices evidencing accounts (other than accounts payable to an LDC)
shall bear a notice that such invoices are payable to such Blocked Accounts and in which a Borrower
or one of its Subsidiaries, as applicable, and each LDC will immediately deposit all payments made
for inventory or other payments constituting proceeds of Collateral, in the case of the Borrowers
and their Subsidiaries, in the identical form in which such payment was made, whether by cash or
check. The Collecting Banks shall acknowledge and agree, pursuant to an Account Control Agreement,
that all payments made to the Blocked Accounts are for the benefit of the Administrative Agent and
the Secured Parties, and that the Collecting Banks have no right to setoff against the Blocked
Accounts, other than for customary charges of the Collecting Bank for depositary services. Upon
the occurrence and continuance of an Event of Default, each Borrower and each Subsidiary shall
irrevocably instruct each Collecting Bank to promptly transfer all payments or deposits (with
certain exceptions as agreed to by the Administrative Agent) into the Blocked Accounts into the
Administrative Agent’s Account on each Business Day. If any Loan Party shall receive any monies,
checks, notes, drafts or any other payments relating to and/or proceeds of accounts or other
Collateral, such Person shall hold such instrument or funds in trust for the Administrative Agent,
and, immediately upon receipt thereof, shall remit the same or cause the same to be remitted, in
kind, to the Blocked Accounts or after the occurrence and continuance of an Event of Default, to
the Administrative Agent at its address set forth in Section 10.02 below.



Section 5.14 Further Assurances in General. Execute any and all further documents,
financing statements, agreements and
instruments, and take all such further actions (including the filing and recording of
financing or continuation statements or amendments thereto (or similar documents required by any
laws of any applicable jurisdiction)), which may be required under any Legal Requirement, or which
the Administrative Agent or the Majority Lenders may reasonably request, all at the expense of the
Borrowers. Each Borrower also agrees to provide to the Administrative Agent, from time to time
upon request, evidence reasonably satisfactory to the Administrative Agent as to the perfection and
priority of the Liens created or intended to be created by the Security Documents. Each Borrower
agrees not to effect or permit any change referred to in Section 5.07(e)(i)(A) unless all
filings have been made under the Uniform Commercial Code or otherwise that are required in order
for the Administrative Agent to continue at all times following such change to have, and each Loan
Party agrees to take all necessary action to ensure that the Administrative Agent does continue at
all times to have, a valid, legal and perfected security interest in all the Collateral. Each
Borrower also agrees promptly to notify the Administrative Agent if any material portion of the
Collateral is damaged or destroyed.



Section 5.15 Secured Counterparty Guaranty Maintain in full force for any Secured
Counterparty without an Investment Grade Rating, a Secured Counterparty Parent Guaranty or
Acceptable Credit Support.



Section 5.16 Borrowing Base Draw down the entire available amount under the Sowood
Documents if at any time the Borrowing Base Availability is less than $10,000,000.



Section 5.17 Sowood Borrowing Draw down the entire available amount under the Sowood
Documents on or before November 7, 2008.


 


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ARTICLE VI




NEGATIVE COVENANTS




So long as the Revolving Advances or the Swing Line Advances or any amount under any Loan
Document shall remain unpaid, any Lender shall have any Revolving Commitment, or there shall exist
any Letter of Credit Exposure, unless the Majority Lenders otherwise consent in writing, no Loan
Party shall:



Section 6.01 Liens, Etc. Create, assume, incur or suffer to exist, any Lien on or in
respect of any of its Property whether now owned or hereafter acquired, other than the following
(“Permitted Liens”):



(a) Liens pursuant to any Loan Document;



(b) Excepted Liens;



(c) Liens existing on the Closing Date and described in Schedule 6.01; provided that
such Liens shall secure only those obligations which they secure on the date hereof and extensions,
renewals and replacements thereof permitted hereunder;



(d) Liens arising out of judgments or awards in respect of which the Parent or any of the
Subsidiaries shall in good faith be prosecuting an appeal or proceedings for review in respect of
which there shall be secured a subsisting stay of execution pending such appeal or proceedings;
provided that the aggregate amount of all such judgments or awards (and any cash and the fair
market value of any property subject to such Liens) does not exceed $500,000.00 at any time
outstanding;



(e) Liens securing Debt permitted under Section 6.02(e)(i) and purchase money security
interests securing Debt permitted under Section 6.02(e)(ii) in any fixed or capital assets
and improvements thereto or equipment hereafter acquired (or, in the case of improvements,
constructed) by the Parent or any of its Subsidiaries; provided that (i) such Liens do not
at any time encumber any property other than the property financed by such Debt and the Proceeds
thereof, (ii) the Debt secured thereby does not exceed the lesser of the cost or fair market value
of the property being acquired or financed on the date of acquisition or financing, and (iii) in
the case of purchase money security interests, such security interests are created within 120 days
after such acquisition (or completion of such improvements);



(f) rights of set-off of banks and other Persons in the ordinary course of banking and trading
arrangements;



(g) Liens in favor of the Secured Counterparties (as defined in the Intercreditor Agreement)
and Sowood which are subject to the Intercreditor Agreement;


 


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(h) security interests (i) in inventory held by and granted to an LDC in the ordinary course
of business and (ii) in accounts purchased and collected by and granted to an LDC that has agreed
to make payment to the Borrowers or one of their Subsidiaries for such accounts in the ordinary
course of business; and



(i) other Liens securing obligations, actual or contingent, in an aggregate amount not greater
than $200,000.00 at any time.



Section 6.02 Debts, Guaranties and Other Obligations. Create, assume, suffer to exist
or in any manner become or be liable, in respect of any Debt except:



(a) Debt under the Loan Documents;



(b) (i) Debt existing on the Closing Date and described in Schedule 6.02, Debt under
the Sowood Documents, Debt under the Senior Notes and (ii) any refinancings, extensions, renewals
or replacements of such Debt to the extent the principal amount of such Debt is not increased (it
being understood that any accrued but unpaid fees or interest added to any principal amount shall
not constitute an increase of such Debt for these purposes), neither the final maturity nor the
weighted average life to maturity of such Debt is decreased, such Debt, if subordinated to the
obligations of a Loan Party hereunder, remains so subordinated on terms (in their entirety) no less
favorable to the Lenders and no more restrictive on the Loan Parties than the Subordinated
Indebtedness being refinanced;



(c) Debt of the Borrowers to Guarantors, and of Guarantors to the Borrowers or other
Guarantors; provided that (i) such Debt is subordinated to the Obligations pursuant to a
subordination agreement in form and substance reasonably acceptable to the Administrative Agent;
and (ii) any such loans and advances made by a Loan Party shall be evidenced by a promissory note
pledged to the Administrative Agent for the ratable benefit of the Secured Parties;



(d) Guarantees of the Parent or any Wholly-Owned Subsidiary in respect of Debt or other
obligations otherwise permitted hereunder of the Parent or any Wholly-Owned Subsidiary;



(e) (i) Debt incurred to finance the acquisition, construction or improvement of any fixed or
capital assets and (ii) Debt in respect of Capital Leases and Synthetic Lease Obligations and
extensions, renewals and replacements of any such Debt that do not increase the outstanding
principal amount thereof; provided that (i) in the case of Debt to finance the acquisition,
construction or improvements of fixed or capital assets, such Debt is incurred prior to or within
120 days after such acquisition or the completion of such construction or improvement and (ii) the
aggregate principal amount of Debt permitted by this paragraph shall not exceed $4,000,000.00 at
any time outstanding;



(f) obligations (contingent or otherwise) of any Borrower or any Wholly-Owned Subsidiary
existing or arising under any Swap Contract, provided that such obligations are (or were)
entered into by such Person in the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments, investments, assets, or property held or
reasonably anticipated by such Person, or changes in the value of securities issued by such Person,
and not for purposes of speculation or taking a “market view”; and


 


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(g) unsecured Debt in an aggregate principal amount not to exceed $2,000,000.00 at any time
outstanding.



Section 6.03 Merger or Consolidation. 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, except that, so long as no Default exists or would result therefrom:



(a) any Subsidiary may merge with (i) a Borrower or the Parent, provided that such
Borrower or the Parent, as the case may be, shall be the continuing or surviving Person, or (ii)
any one or more other Wholly-Owned Subsidiaries, provided that when any Guarantor is
merging with another Wholly-Owned Subsidiary, the Guarantor shall be the continuing or surviving
Person and when any Wholly-Owned Subsidiary is merging with another Subsidiary, the Wholly-Owned
Subsidiary shall be the continuing or surviving Person; and



(b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Parent, any Borrower or to another Wholly-Owned Subsidiary;
provided that if the transferor in such a transaction is a Guarantor, then the transferee
must either be a Borrower or a Guarantor.



Section 6.04 Asset Sales. Make any Asset Disposition or enter into any agreement to
make any Asset Disposition, except:



(a) Asset Dispositions of equipment or real property to the extent that (i) Asset Disposition
is in the ordinary course of business and (ii) (x) such property is exchanged for credit against
the purchase price of similar replacement property or (y) the proceeds of such Disposition are
reasonably promptly applied to the purchase price of such replacement property;



(b) Asset Dispositions of property by the Parent or any Wholly-Owned Subsidiary to the Parent
or to a Wholly-Owned Subsidiary in the ordinary course of business; provided that if the
transferor of such property is a Guarantor, the transferee thereof must either be a Borrower or a
Guarantor; and



(c) Asset Dispositions by the Parent and its Wholly-Owned Subsidiaries to any Person that is
not a Loan Party or a Subsidiary of any Loan Party not otherwise permitted under this Section
6.04; provided that (i) at the time of such Disposition, no Default or Event of Default
shall exist or would result from such Disposition and (ii) the aggregate book value of all property
Disposed of in reliance on this clause (c) in any fiscal year shall not exceed $1,000,000.00 (or
the equivalent in any other currency); and



(d) Asset Dispositions permitted by Section 6.03, Investments permitted by Section
6.05 and Restricted Payments permitted by Section 6.06.


 


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Section 6.05 Investments and Acquisitions. Make any Investments or Acquisitions
except:



(a) Investments held by any Loan Party in the form of Cash Equivalents;



(b) Existing Investments in Subsidiaries and other Investments in existence on the Closing
Date and described in Schedule 6.05;



(c) advances to officers, directors and employees of the Parent and Wholly-Owned Subsidiaries
in an aggregate amount not to exceed $500,000.00 at any time outstanding, for travel,
entertainment, relocation and analogous ordinary business purposes;



(d) Investments of a Loan Party in another Loan Party;



(e) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;



(f) Guarantees permitted by Section 6.02;



(g) Investments in newly-formed Subsidiaries that become Guarantors pursuant to Section
5.10;



(h) Investments under Swap Contracts permitted under Section 6.02(g);



(i) Acquisition of certain customer accounts from (a) Commerce Energy, Inc. and (b) Catalyst
Natural Gas, LLC, which acquisitions shall not exceed $100,000.00 in the aggregate so long as both
before and after giving effect to such acquisition, no Default or Event of Default exists or will
exist or would result therefrom; and



(j) other Investments not exceeding $1,000,000.00 in the aggregate in any fiscal year of the
Parent.



Section 6.06 Restricted Payments. Declare or make, directly or indirectly, any
Restricted Payment or defease, redeem, repurchase, retire or acquire the notes issued under the
Senior Notes or incur any obligation (contingent or otherwise) to do so, except that:



(a) each Wholly-Owned Subsidiary of the Parent may make Restricted Payments to any other
Wholly-Owned Subsidiary or the Parent;



(b) the Parent may declare and make dividend payments or other distributions payable to the
holders of its Equity Interests solely in the common stock or other common equity interests of such
Person;



(c) the Parent may (i) purchase, redeem or otherwise acquire shares of its common stock or
other common equity interests or warrants or options to acquire any such shares held by any current
or former officer, director or employee (or their assigns, heirs or estates); provided that
the aggregate price paid for all such purchases, redemptions or acquisitions shall not exceed
$2,000,000.00 in any twelve month period and (ii) repurchase Equity Interests deemed to occur upon
the exercise of stock options or warrants to the extent such Equity Interests represent a portion
of the exercise price of those options or warrants or corresponding statutory withholding taxes due
in connection with such exercise;


 


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(d) the Parent may purchase, redeem or otherwise acquire shares of its stock or other equity
interests or warrants or options to acquire any such shares with the proceeds received from the
substantially concurrent issue of new shares of its stock or other equity interests;



(e) any Loan Party may defease, redeem, repurchase, retire or acquire Subordinated
Indebtedness or the Senior Notes (i) with the net cash proceeds from a substantially concurrent
incurrence of Debt permitted by Section 6.02(b) (other than Debt incurred under the Sowood
Documents), (ii) with the net proceeds from the issuance of Equity Interests, or (iii) in the case
of the Senior Notes, for an amount not to exceed $12,006,000, so long as the purchase price
therefor is equal to 100% or less of their par value and paid with cash on hand of any Loan Party;



(f) the Parent or any of its Subsidiaries may pay management, consulting, advisory fees, and
other transactions fees to (i) Greenhill Capital Partners pursuant to the agreements listed on the
attached Schedule 6.08 in the amounts set forth in such agreements and (ii) its Affiliates
in the ordinary course of business not to exceed $500,000.00 (not including legal fees and
expenses) in any fiscal year; and



(g) any payments permitted under Section 6.14 may be made.



Section 6.07 Change in Nature of Business. Engage in any line of business
substantially different from those lines of business conducted by the Parent and its Subsidiaries
on the date hereof or any business substantially related or incidental thereto.



Section 6.08 Transactions With Affiliates. Enter into any transaction of any kind with
any Affiliate of the Parent, whether or not in the ordinary course of business, including, without
limitation, any payment by the Parent or any of its Wholly-Owned Subsidiaries of any management,
consulting or similar fees to any Affiliate, whether pursuant to a management agreement or
otherwise, other than on fair and reasonable terms substantially as favorable or more favorable to
the Parent or such Subsidiary as would be obtainable by the Parent or such Subsidiary at the time
in a comparable arm’s length transaction with a Person other than an Affiliate, other than (a)
transactions between Loan Parties, (b) employment agreements entered into the ordinary course of
business, (c) the issuance of equity securities, (d) Restricted Payments and Investments permitted
by this Agreement, (e) otherwise expressly provided for in this Agreement, or (f) pursuant to
arrangements existing on the date hereof and set forth on Schedule 6.08.



Section 6.09 Agreements Restricting Liens and Distributions. Create or otherwise
cause or suffer to exist any prohibition, encumbrance or restriction which prohibits or otherwise
(a) restricts the ability (i) of any Subsidiary to make Restricted Payments to any Loan Party or to
otherwise transfer property to any Loan Party, (ii) of any Subsidiary to Guarantee the Debt of any
Loan Party, or (iii) of the Parent or any Subsidiary to create, incur, assume or suffer to exist
Liens on property of such Person; provided, however, that the preceding
restrictions shall not apply to prohibitions, encumbrances or restrictions under or by reason of:
(A) agreements or instruments governing Debt set forth on Schedule 6.09 and any amendments
or other modifications thereto (including any refinancing thereof); provided that such amendments
or modifications are no more restrictive, taken as a whole, with respect to such prohibition,
encumbrance or restriction than those contained in those agreements as in effect on the Closing
Date, (B) applicable law, rule, regulation or order, (C) customary non-assignment provisions in
contracts, leases, real property licenses entered into in the ordinary course of business or (D)
(with respect to clause (iii) only), any negative pledge incurred or provided in favor of any
holder of Debt permitted under Section 6.02(e) solely to the extent any such negative
pledge relates to the Property financed by or the subject of such Debt; or (b) 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.


 


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Section 6.10 Limitation on Accounting Changes or Changes in Fiscal Periods. Permit
(a) any change in any of its accounting policies affecting the presentation of financial statements
or reporting practices, except as required or permitted by GAAP or (b) the fiscal year of the
Parent or any of its Subsidiaries to end on a day other than June 30 or change the Parent’s method
of determining fiscal quarters.



Section 6.11 Limitation on Speculative Hedging. (a) Purchase, assume, or hold a
speculative position in any
commodities market or futures market or enter into any Swap Contract for speculative purposes,
(b) be party to or otherwise enter into any Swap Contract which (i) is entered into for reasons
other than as a part of its normal business operations as a risk management strategy and/or hedge
against changes resulting from market conditions related to the Borrowers’ or their Subsidiaries’
operations, (ii) is longer than three years in duration, or (iii) obligates any Loan Party to any
margin call requirements not permitted under this Agreement, or (c) materially change its Risk
Management Policy without the Majority Lenders’ prior written consent.



Section 6.12 Operating Leases. Enter into or remain liable upon any Operating Lease,
except for Operating Leases which have Operating Lease Obligations of not more than $2,000,000.00
at any one time outstanding.



Section 6.13 Sale and Leaseback Transactions and other Off-Balance Sheet Liabilities.
Enter into or suffer to exist any (a) Sale and Leaseback Transaction or (b) any other transaction
pursuant to which it incurs or has incurred Off-Balance Sheet Liabilities, except for Swap
Contracts permitted to be incurred under the terms of Section 6.02.



Section 6.14 Subordinated Debt. Except as expressly permitted in Section 2 of the
Intercreditor Agreement: (a) make any optional, mandatory or scheduled payments on account of
principal or interest (whether by redemption, purchase, retirement, defeasance, set-off or
otherwise) in respect of Subordinated Indebtedness; or (b) permit any waiver, supplement,
modification, amendment, termination or release of any indenture, instrument or agreement pursuant
to which any Subordinated Indebtedness is outstanding if such waiver, supplement, modification,
amendment, termination or release would (i) increase the maximum principal amount of such
Subordinated Indebtedness or the ordinary interest rate or the default interest rate on such
Subordinated Indebtedness; (ii) change the dates upon which payments of principal or interest are
due on such Subordinated Indebtedness; (iii) change any event of default or add any covenant with
respect to such Subordinated Indebtedness; (iv) change the payment, redemption or prepayment
provisions of such Subordinated Indebtedness; (v) change the subordination provisions thereof; or
(vi) change or amend any other term if such change or amendment would materially increase the
obligations of the obligor or confer additional material rights on the holder of such Subordinated
Indebtedness in a manner adverse to any Loan Party or any Secured Party.


 


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Section 6.15 Amendment of Material Contracts. Amend, modify or supplement any
Material Contract, including, the Secured Counterparty Contracts, and the Senior Notes, if such
amendment, modification or supplement would materially increase the obligations of the obligor or
be materially adverse to the interests of any Loan Party or any Secured Party.



Section 6.16 Capital Expenditures. Make or become legally obligated to make any
Capital Expenditure in respect of the purchase or other acquisition of any fixed or capital asset
(excluding normal replacements and maintenance which are properly charged to current operations but
including Acquisitions), except for Capital Expenditures in the ordinary course of business not
exceeding in the aggregate for the Parent and its Subsidiaries $3,000,000.00 for each fiscal year;
provided, however that the amount of permitted Capital Expenditures in respect of any
fiscal year commencing with the fiscal year
ending on June 30, 2009, shall be increased by the unused amount of permitted Capital
Expenditures for the immediately preceding fiscal year (and in determining any such unused amount,
Capital Expenditures during any fiscal year will be applied first against any amounts carried
forward from the prior year).



Section 6.17 Minimum Consolidated Tangible Net Worth. Permit Consolidated Tangible
Net Worth at any time to be less than the sum of (a) $30,000,000.00 plus (b) an amount equal to 50%
of the sum of (i) the positive year-to-date Consolidated Net Income (plus, to the extent deducted
from Consolidated Net Income, non-cash compensation expenses) through such date and (ii) other than
for the then current fiscal year, the positive Consolidated Net Income (plus, to the extent
deducted from Consolidated Net Income, non-cash compensation expenses) for each full fiscal year
ending on and after June 30, 2007 plus (c) an amount equal to 100% of the net proceeds from any
equity issued by the Parent.



Section 6.18 Minimum Consolidated Working Capital. Permit the Consolidated Working
Capital at any time to be less than $138,500,000; provided that (a) such amount shall be reduced on
a dollar for dollar basis by (i) the purchase price paid for the redemption of the Senior Notes
permitted under Section 6.06(e)(iii) and (ii) any repayment of all or any portion of the principal
outstanding under the Sowood Documents on or after December 17, 2007, and (b) such amount shall be
increased on a dollar for dollar basis by any advances made under the Sowood Documents on or after
December 17, 2007.



Section 6.19 Maximum Aggregate Negative EBITDA. Permit the negative Consolidated
EBITDA to be less than ($2,000,000.00) during any consecutive three-month period beginning with the
first full month before any day on which the Borrowing Base Availability is less than
$30,000,000.00 and continuing for each three-month period thereafter until the Borrowing Base
Availability is more than $30,000,000.00 for three consecutive months.



Section 6.20 Interest Coverage Ratio. Permit, as of last day of any month occurring
during any period set forth below, the ratio of Consolidated EBITDA for the twelve months then
ending to Consolidated Interest Expense for such period set forth below to be less than the ratio
set forth below opposite such period:



	 	 	 	 	 
	Period	 	Interest Coverage Ratio	 
	 
	 	 	 	 
	Through August 31, 2008
	 	 	1.40 to 1.00	 
	 
	 	 	 	 
	From September 1, 2008 through the Maturity Date
	 	 	1.60 to 1.00	 






 


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Section 6.21 Average Leverage Ratio. Permit the Leverage Ratio at any time during the
relevant period set forth below to be greater than the ratio set forth below opposite such period:



	 	 	 	 	 
	 	 	Maximum	 
	Relevant Period	 	Leverage Ratio	 
	 
	 	 	 	 
	Through August 31, 2008
	 	 	4.75 to 1.00	 
	 
	 	 	 	 
	From September 1, 2008 through September 30, 2008
	 	 	4.50 to 1.00	 
	 
	 	 	 	 
	From October 1, 2008 through January 31, 2009
	 	 	4.00 to 1.00	 
	 
	 	 	 	 
	From February 1, 2009 through the Maturity Date
	 	 	3.75 to 1.00	 






Section 6.22 Monthly Leverage Ratio. Permit the Leverage Ratio at any time at the end
of each month to be greater than 4.50 to 1.00.



ARTICLE VII




EVENTS OF DEFAULT




Section 7.01 Events of Default. The occurrence of any of the following events shall
constitute an “Event of Default” under any Loan Document:



(a) Payment. Any Borrower shall fail to pay (i) any principal of any Revolving
Advance or Swing Line Advance (including, without limitation, any mandatory prepayment required by
Section 2.07) or reimburse any drawing under any Letter of Credit when the same becomes due
and payable, or (ii) any interest on the Revolving Advances or Swing Line Advances, any fees,
reimbursements, indemnifications, or other amounts payable in connection with the Obligations, this
Agreement or under any other Loan Document within three Business Days after the same becomes due
and payable;


 


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(b) Representation and Warranties. Any representation or statement made or deemed to
be made by any Borrower or any other Loan Party (or any of their respective officers) in this
Agreement, in any other Loan Document, or in connection with this Agreement or any other Loan
Document shall prove to have been incorrect in any material respect when made or deemed to be made;



(c) Covenant Breaches. Any Loan Party shall (i) fail to perform or observe any
covenant contained in Sections 5.01, 5.07(a), 5.09, 5.11, and
5.12 and Article VI of this Agreement (provided that, with respect to
Section 6.23 only, such failure shall remain unremedied for 15 days) or (ii) fail to
perform or observe any other term or covenant set forth in this Agreement or in any other Loan
Document which is not covered by clause (i) above or any other provision of this
Section 7.01 if such failure shall remain unremedied for 30 days;



(d) Cross-Default. (i)  Any Loan Party shall fail to pay any principal of or premium
or interest on any of its Debt which, individually or in the aggregate, is outstanding in a
principal amount of at least $5,000,000.00 (or the equivalent in any other currency) individually
or when aggregated with all such Debt of the Person so in default (but excluding Debt evidenced by
the Revolving Advances and the Swing Line Advances) when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise), (ii) any other
event shall occur or condition shall exist under any agreement or instrument relating to Debt which
is outstanding in a principal amount of at least $5,000,000.00 (or the equivalent in any other
currency) individually or when aggregated with all such Debt of the Person so in default (but
excluding Debt evidenced by the Revolving Advances and the Swing Line Advances), if the effect of
such event or condition is to accelerate, or to permit the acceleration of, the maturity of such
Debt; or (iii) any such Debt shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), prior to the stated maturity thereof;



(e) Insolvency. Any Loan Party shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, commences negotiations
with one or more of its creditors with a view to rescheduling any of its indebtedness which it
would not otherwise be able to pay as it falls due or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against the Parent or any of its
Subsidiaries seeking to adjudicate it as a bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a receiver, trustee or other similar
official for it or for any substantial part of its property and, in the case of any such proceeding
instituted against such Person, either such proceeding shall remain undismissed for a period of 60
days or any of the actions sought in such proceeding shall occur; or such Person shall take any
action to authorize any of the actions set forth above in this paragraph (e) or any analogous
procedure or step is taken in any jurisdiction.



(f) Judgments. Any judgment, decree or order for the payment of money shall be
rendered against any Loan Party in an amount in excess of $2,500,000.00 (or the equivalent in any
other currency) and either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect;


 


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(g) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of a Loan Party
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an
aggregate amount in excess of $5,000,000.00, or (ii) the Parent 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 $5,000,000.00; or



(h) Loan Documents. Any Loan Document, at any time after its execution and delivery
and for any reason other than as expressly permitted hereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party or any other Person 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



(i) Security Documents. The Administrative Agent and the Lenders shall fail to have
an Acceptable Security Interest in a material portion of the Collateral;



(j) Material Contracts. There shall have been a termination or cancellation of, or a
default that would permit the termination or cancellation of, any Material Contract and such
termination or cancellation could reasonably be expected to have a Material Adverse Effect; or



(k) Change in Control. A Change of Control shall occur; or



(l) Secured Counterparty Event. A Secured Counterparty Event shall occur.



Section 7.02 Optional Acceleration of Maturity. If any Event of Default (other than
an Event of Default pursuant to paragraph (e) of Section 7.01) shall have occurred
and be continuing, then, and in any such event:



(a) the Administrative Agent (i) shall at the request, or may with the consent, of the
Majority Lenders, by notice to the Borrowers, declare the Commitments and the obligation of each
Lender, the Swing Line Lender, and the Issuing Bank to make extensions of credit hereunder,
including making Revolving Advances, Swing Line Advances, and issuing Letters of Credit, to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may
with the consent, of the Majority Lenders, by notice to the Borrowers, declare all principal,
interest, fees, reimbursements, indemnifications, and all other amounts payable under this
Agreement and the other Loan Documents to be forthwith due and payable, whereupon all such amounts
shall become and be forthwith due and payable in full, without notice of intent to demand, demand,
presentment for payment, notice of nonpayment, protest, notice of protest, grace, notice of
dishonor, notice of intent to accelerate, notice of acceleration, and all other notices, all of
which are hereby expressly waived by each Borrower;



(b) each Borrower shall, on demand of the Administrative Agent at the request or with the
consent of the Majority Lenders, deposit with the Administrative Agent into the LC Cash Collateral
Account an amount of cash in Dollars equal to 105% of the outstanding Letter of Credit Exposure as
security for the Obligations to the extent the Letter of Credit Obligations are not otherwise paid
at such time; and


 


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(c) the Administrative Agent shall at the request of, or may with the consent of, the Majority
Lenders proceed to enforce its rights and remedies under the Security Documents, this Agreement,
and any other Loan Document for the ratable benefit of the Lenders by appropriate proceedings.



Section 7.03 Automatic Acceleration of Maturity. If any Event of Default pursuant to
paragraph (e) of Section 7.01 shall occur:



(a) (i) the Commitments and the obligation of each Lender, the Swing Line Lender and the
Issuing Bank to make extensions of credit hereunder, including making Revolving Advances and Swing
Line Advances and issuing Letters of Credit, shall terminate, and (ii) all principal, interest,
fees, reimbursements, indemnifications, and all other amounts payable under this Agreement and the
other Loan Documents shall become and be forthwith due and payable in full, without notice of
intent to demand, demand, presentment for payment, notice of nonpayment, protest, notice of
protest, grace, notice of dishonor, notice of intent to accelerate, notice of acceleration, and all
other notices, all of which are hereby expressly waived by each Borrower;



(b) each Borrower shall deposit with the Administrative Agent into the LC Cash Collateral
Account an amount of cash in Dollars equal to 105% of the outstanding Letter of Credit Exposure as
security for the Obligations to the extent the Letter of Credit Obligations are not otherwise paid
at such time; and



(c) the Administrative Agent shall at the request of, or may with the consent of, the Majority
Lenders proceed to enforce its rights and remedies under the Security Documents, this Agreement,
and any other Loan Document for the ratable benefit of the Lenders by appropriate proceedings.



Section 7.04 Non-exclusivity of Remedies. No remedy conferred upon the Administrative
Agent, the Swing Line Lender, the Issuing Bank and the Lenders is intended to be exclusive of any
other remedy, and each remedy shall be cumulative of all other remedies existing by contract, at
law, in equity, by statute or otherwise.



Section 7.05 Right of Set-off. If an Event of Default shall have occurred and be
continuing, each Lender, the Issuing Bank, the Swing Line Lender, 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, Swing Line Lender, the Issuing Bank or any such
Affiliate to or for the credit or the account of any Loan Party against any and all of the
obligations of such Loan Party now or hereafter existing under this Agreement or any other Loan
Document to such Lender, the Swing Line Lender, or the Issuing Bank, irrespective of whether or not
such Lender, the Swing Line Lender, or the Issuing Bank shall have made any demand under this
Agreement or any other Loan Document and although such obligations of such Loan Party may be
contingent or unmatured or are owed to a branch or office of such Lender, the Swing Line Lender, or
the Issuing Bank different from the
branch or office holding such deposit or obligated on such indebtedness. The rights of each
Lender, the Swing Line Lender, the Issuing Bank and their respective Affiliates under this Section
are in addition to other rights and remedies (including other rights of setoff) that such Lender,
the Swing Line Lender, the Issuing Bank or their respective Affiliates may have. Each Lender, the
Swing Line Lender, and the Issuing Bank agrees to notify the Parent 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.


 


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Section 7.06 Application of Proceeds. From and during the continuance of any Event of
Default, any monies or property actually received by the Administrative Agent pursuant to this
Agreement or any other Loan Document, the exercise of any rights or remedies under any Security
Document or any other agreement with any Loan Party which secures any of the Obligations, shall be
applied in the following order:



(a) First, to payment of the reasonable expenses, liabilities, losses, costs, duties,
fees, charges or other moneys whatsoever (together with interest payable thereon) as may have been
paid or incurred in, about or incidental to any sale or other realization of Collateral, including
reasonable compensation to the Administrative Agent and its agents and counsel, and to the ratable
payment of any other unreimbursed reasonable expenses and indemnities for which the Administrative
Agent or any Secured Party is to be reimbursed pursuant to this Agreement or any other Loan
Document, in each case that are then due and payable;



(b) Second, to the ratable payment of accrued but unpaid fees of the Administrative
Agent, commitment fees, letter of credit fees, and fronting fees owing to the Administrative Agent,
the Issuing Bank, and the Lenders in respect of the Revolving Advances, and Letters of Credit under
this Agreement;



(c) Third, to the ratable payment of accrued but unpaid interest on the Revolving
Advances and the Swing Line Advances then due and payable under this Agreement;



(d) Fourth, ratably, according to the then unpaid amounts thereof, without preference
or priority of any kind among them, to the ratable payment of all other Obligations then due and
payable which relate to Revolving Advances, the Swing Line Advances, and Letters of Credit and
which are owing to the Administrative Agent, the Issuing Bank, the Swing Line Lender and the
Lenders;



(e) Fifth, ratably, according to the unpaid termination amounts thereof, to the
payment of all obligations of any Borrower or its Subsidiaries owing to any Swap Counterparty under
any Swap Contract, if any, then due and payable;



(f) Sixth, to the ratable payment of any other outstanding Obligations then due and
payable; and



(g) Seventh, any excess after payment in full of all Obligations shall be paid to the
Parent or any other Loan Party as appropriate or to such other Person who may be lawfully entitled
to receive such excess.


 


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Section 7.07 Administrative Agent’s Account. The Borrowers and the Administrative
Agent shall establish a Collateral Account and each Borrower shall execute any documents and
agreements, including the Administrative Agent’s standard form assignment of deposit accounts, that
the Administrative Agent reasonably requests in connection therewith to establish the Collateral
Account and grant the Administrative Agent an Acceptable Security Interest in such account and the
funds therein. Each Borrower hereby pledges to the Administrative Agent and grants the
Administrative Agent a security interest in the Collateral Account, all funds held therein from
time to time, and all proceeds thereof as security for the payment of the Obligations. Funds held
in the Collateral Account shall be held as cash collateral for the Obligations and promptly applied
by the Administrative Agent to any outstanding Obligations for Revolving Advances, Letter of Credit
Exposure, or Swing Line Advances that exist or occur. After the occurrence and continuance of an
Event of Default, funds held in the Collateral Account shall be held as cash collateral for the
Obligations and promptly applied by the Administrative Agent to any outstanding Obligations that
exist or occur. Provided that no Default or Event of Default has occurred and is continuing, to
the extent that any surplus funds are held in the Collateral Account above the sum of the
outstanding Revolving Advance and Swing Line Advances, the Administrative Agent may release to the
Borrowers at either Borrower’s written request any funds held in the Collateral Account. The
Administrative Agent shall exercise reasonable care in the custody and preservation of any funds
held in the Collateral Account and shall be deemed to have exercised such care if such funds are
accorded treatment substantially equivalent to that which the Administrative Agent accords its own
property, it being understood that the Administrative Agent shall not have any responsibility for
taking any necessary steps to preserve rights against any parties with respect to any such funds.
Funds held in the Administrative Agent’s Account shall be invested in Cash Equivalents maintained
with, and under the sole dominion and control of, the Administrative Agent or in another investment
if mutually agreed upon by the Borrowers and the Administrative Agent, but the Administrative Agent
shall have no other obligation to make any other investment of the funds therein. The
Administrative Agent shall exercise reasonable care in the custody and preservation of any funds
held in the Administrative Agent’s Account and shall be deemed to have exercised such care if such
funds are accorded treatment substantially equivalent to that which the Administrative Agent
accords its own property, it being understood that the Administrative Agent shall not have any
responsibility for taking any necessary steps to preserve rights against any parties with respect
to any such funds.



ARTICLE VIII




THE GUARANTY




Section 8.01 Liabilities Guaranteed. Each Guarantor hereby, jointly and severally,
irrevocably and unconditionally guarantees the prompt payment at maturity of the Obligations.


 


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Section 8.02 Nature of Guaranty. This guaranty is an absolute, irrevocable, completed
and continuing guaranty of payment and not a
guaranty of collection, and no notice of the Obligations or any extension of credit already or
hereafter contracted by or extended to any Borrower need be given to any Guarantor. This guaranty
may not be revoked by any Guarantor and shall continue to be effective with respect to the
Obligations arising or created after any attempted revocation by such Guarantor and shall remain in
full force and effect until the Obligations are paid in full and the Commitments are terminated,
notwithstanding that from time to time prior thereto no Obligations may be outstanding. The
Borrowers and the Lenders may modify, alter, rearrange, extend for any period and/or renew from
time to time, the Obligations, and the Lenders may waive any Default or Events of Default without
notice to any Guarantor and in such event each Guarantor will remain fully bound hereunder on the
Obligations. This guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment of the Obligations is rescinded or must otherwise be returned by any of the
Lenders upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise, all as
though such payment had not been made. This guaranty may be enforced by the Administrative Agent
and any subsequent holder of any of the Obligations and shall not be discharged by the assignment
or negotiation of all or part of the Obligations. Each Guarantor hereby expressly waives
presentment, demand, notice of non-payment, protest and notice of protest and dishonor, notice of
Default or Event of Default, and also notice of acceptance of this guaranty, acceptance on the part
of the Lenders being conclusively presumed by the Lenders’ request for this guaranty and the
Guarantors’ being party to this Agreement.



Section 8.03 Agent’s Rights. Each Guarantor authorizes the Administrative Agent,
without notice or demand and without affecting any Guarantor’s liability hereunder, to take and
hold security for the payment of its obligations under this Article VIII and/or the
Obligations, and exchange, enforce, waive and release any such security; and to apply such security
and direct the order or manner of sale thereof as the Administrative Agent in its discretion may
determine, and to obtain a guaranty of the Obligations from any one or more Persons and at any time
or times to enforce, waive, rearrange, modify, limit or release any of such other Persons from
their obligations under such guaranties.



Section 8.04 Guarantor’s Waivers.



(a) General. Each Guarantor waives any right to require any of the Lenders to (i)
proceed against either Borrower or any other person liable on the Obligations, (ii) enforce any of
their rights against any other guarantor of the Obligations, (iii) proceed or enforce any of their
rights against or exhaust any security given to secure the Obligations, (iv) have either Borrower
joined with any Guarantor in any suit arising out of this Article VIII and/or the
Obligations, or (v) pursue any other remedy in the Lenders’ powers whatsoever. It is agreed between
the Guarantors and the Lenders that the foregoing waivers are of the essence of the transaction
contemplated by this Agreement and the other Loan Documents and that, but for this Guaranty and
such waivers, the Lenders would not extend or continue to extend credit under this Agreement. The
Lenders shall not be required to mitigate damages or take any action to reduce, collect or enforce
the Obligations. Each Guarantor waives any defense arising by reason of any disability, lack of
corporate authority or power, or other defense of any Borrower or any other guarantor of the
Obligations, and shall remain liable hereon regardless of whether any Borrower or any other
guarantor be found not liable thereon for any reason. Whether and when to exercise any of the
remedies of the Lenders under any of the Loan Documents shall be in the sole and
absolute discretion of the Administrative Agent, and no delay by the Administrative Agent in
enforcing any remedy, including delay in conducting a foreclosure sale, shall be a defense to any
Guarantor’s liability under this Article VIII.


 


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(b) Marshalling, etc. In addition to the waivers contained in Section 8.04(a) hereof,
the Guarantors waive, and agree that they shall not at any time insist upon, plead or in any manner
whatsoever claim or take the benefit or advantage of, any appraisal, valuation, stay, extension,
marshaling of assets or redemption laws, or exemption, whether now or at any time hereafter in
force, which may delay, prevent or otherwise affect the performance by the Guarantors of their
obligations under, or the enforcement by the Administrative Agent or the Lenders of, this Guaranty.
The Guarantors hereby waive diligence, presentment and demand (whether for nonpayment or protest
or of acceptance, maturity, extension of time, change in nature or form of the Obligations,
acceptance of further security, release of further security, composition or agreement arrived at as
to the amount of, or the terms of, the Obligations, notice of adverse change in the Borrowers’
financial condition or any other fact which might materially increase the risk to the Guarantors)
with respect to any of the Obligations or all other demands whatsoever and waive the benefit of all
provisions of law which are or might be in conflict with the terms of this Article VIII. The
Guarantors, jointly and severally, represent, warrant and agree that, as of the date of this
Guaranty, their obligations under this Guaranty are not subject to any offsets or defenses of any
kind against the Administrative Agent, the Lenders, the Borrowers or any other Person that executes
a Loan Document. The Guarantors further jointly and severally agree that their obligations under
this Guaranty shall not be subject to any counterclaims, offsets or defenses of any kind which may
arise in the future against the Administrative Agent, the Lenders, the Borrowers or any other
Person that executes a Loan Document.



(c) Subrogation. Until the Obligations have been paid in full, each Guarantor waives
all rights of subrogation or reimbursement against the Borrowers, whether arising by contract or
operation of law (including, without limitation, any such right arising under any federal, state or
other applicable bankruptcy or insolvency laws) and waives any right to enforce any remedy which
the Lenders now have or may hereafter have against any Borrower, and waives any benefit or any
right to participate in any security now or hereafter held by the Administrative Agent or any
Lender.



Section 8.05 Maturity of Obligations, Payment. Each Guarantor agrees that if the
maturity of any of the Obligations is accelerated by bankruptcy or otherwise, such maturity shall
also be deemed accelerated for the purpose of this Article VIII without demand or notice to
any Guarantor. Each Guarantor will, forthwith upon notice from the Administrative Agent, jointly
and severally pay to the Administrative Agent the amount due and unpaid by the Borrowers and
guaranteed hereby. The failure of the Administrative Agent to give this notice shall not in any way
release any Guarantor hereunder.



Section 8.06 Agent’s Expenses. If any Guarantor fails to pay the Obligations after
notice from the Administrative Agent of any Borrower’s failure to pay any Obligations at maturity,
and if the Administrative Agent obtains the services of an attorney for collection of amounts owing
by any Guarantor hereunder, or obtaining advice of counsel in respect of any of their rights under
this Article VIII, or if suit is
filed to enforce this Article VIII, or if proceedings are had in any bankruptcy,
probate, receivership or other judicial proceedings for the establishment or collection of any
amount owing by any Guarantor hereunder, or if any amount owing by any Guarantor hereunder is
collected through such proceedings, each Guarantor jointly and severally agrees to pay to the
Administrative Agent the Administrative Agent’s reasonable attorneys’ fees.


 


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Section 8.07 Liability. It is expressly agreed that the liability of each Guarantor
for the payment of the Obligations guaranteed hereby shall be primary and not secondary.



Section 8.08 Events and Circumstances Not Reducing or Discharging any Guarantor’s
Obligations. Each Guarantor hereby consents and agrees to each of the following to the fullest
extent permitted by law, and agrees that each Guarantor’s obligations under this Article
VIII shall not be released, diminished, impaired, reduced or adversely affected by any of the
following, and waives any rights (including without limitation rights to notice) which each
Guarantor might otherwise have as a result of or in connection with any of the following:



(a) Modifications, etc. Any renewal, extension, modification, increase, decrease,
alteration or rearrangement of all or any part of the Obligations, or this Agreement or any
instrument executed in connection therewith, or any contract or understanding between any Borrower
and any of the Lenders, or any other Person, pertaining to the Obligations, or the waiver or
consent by the Administrative Agent or the Lenders with respect to any of the provisions hereof or
thereof, or any modification or termination of the terms of any intercreditor or subordination
agreement pursuant to which claims of other creditors against any Guarantor or Borrower are
subordinated to the claims of the Lenders or pursuant to which the Obligations are subordinated to
claims of other creditors;



(b) Adjustment, etc. Any adjustment, indulgence, forbearance or compromise that might
be granted or given by any of the Lenders to any Borrower or any Guarantor or any Person liable on
the Obligations;



(c) Condition of any Borrower or any Guarantor. The insolvency, bankruptcy
arrangement, adjustment, composition, liquidation, disability, dissolution, death or lack of power
of any Borrower or any other Guarantor or any other Person at any time liable for the payment of
all or part of the Obligations; or any dissolution of any Borrower or any other Guarantor, or any
sale, lease or transfer of any or all of the assets of any Borrower or any other Guarantor, or any
changes in the shareholders, partners, or members of any Borrower or any other Guarantor; or any
reorganization of any Borrower or any other Guarantor;



(d) Invalidity of Obligations. The invalidity, illegality or unenforceability of all
or any part of the Obligations, or any document or agreement executed in connection with the
Obligations, for any reason whatsoever, including without limitation the fact that the Obligations,
or any part thereof, exceed the amount permitted by law, the act of creating the Obligations or any
part thereof is ultra vires, the officers or representatives executing the documents or otherwise
creating the Obligations acted in excess of their authority, the Obligations violate applicable
usury laws, either Borrower has valid defenses, claims or offsets
(whether at law, in equity or by agreement) which render the Obligations wholly or partially
uncollectible from such Borrower, the creation, performance or repayment of the Obligations (or the
execution, delivery and performance of any document or instrument representing part of the
Obligations or executed in connection with the Obligations, or given to secure the repayment of the
Obligations) is illegal, uncollectible, legally impossible or unenforceable, or this Agreement or
other documents or instruments pertaining to the Obligations have been forged or otherwise are
irregular or not genuine or authentic;




 


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(e) Release of Obligors. Any full or partial release of the liability of either
Borrower from the Obligations or any part thereof, of any co-guarantors, or any other Person now or
hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to
pay, perform, guarantee or assure the payment of the Obligations or any part thereof, it being
recognized, acknowledged and agreed by any Guarantor that such Guarantor may be required to pay the
Obligations in full without assistance or support of any other Person, and no Guarantor has been
induced to enter into this Article VIII on the basis of a contemplation, belief,
understanding or agreement that other parties other than the Borrowers will be liable to perform
the Obligations, or the Lenders will look to other parties to perform the Obligations;



(f) Other Security. The taking or accepting of any other security, collateral or
guaranty, or other assurance of payment, for all or any part of the Obligations;



(g) Release of Collateral etc. Any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment (including without limitation negligent, willful,
unreasonable or unjustifiable impairment) of any collateral, property or security, at any time
existing in connection with, or assuring or securing payment of, all or any part of the
Obligations;



(h) Care and Diligence. The failure of the Lenders or any other Person to exercise
diligence or reasonable care in the preservation, protection, enforcement, sale or other handling
or treatment of all or any part of such collateral, property or security;



(i) Status of Liens. The fact that any collateral, security, security interest or lien
contemplated or intended to be given, created or granted as security for the repayment of the
Obligations shall not be properly perfected or created, or shall prove to be unenforceable or
subordinate to any other security interest or lien, it being recognized and agreed by each
Guarantor that no Guarantor is entering into this Article VIII in reliance on, or in
contemplation of the benefits of, the validity, enforceability, collectibility or value of any of
the collateral for the Obligations;



(j) Payments Rescinded. Any payment by either Borrower to the Lenders is held to
constitute a preference under the bankruptcy laws, or for any reason the Lenders are required to
refund such payment or pay such amount to the Borrowers or someone else; or



(k) Other Actions Taken or Omitted. Any other action taken or omitted to be taken
with respect to this Agreement, the Obligations, or the security and collateral therefor, whether
or not such action or omission prejudices any Guarantor or increases the likelihood that any
Guarantor will be required to pay the Obligations pursuant to the terms hereof, it being the
unambiguous and unequivocal intention of each Guarantor that each Guarantor shall be obligated to
joint and severally pay the Obligations when due, notwithstanding any occurrence, circumstance,
event, action, or omission whatsoever, whether contemplated or uncontemplated, and whether or not
otherwise or particularly described herein, except for the full and final payment and satisfaction
of the Obligations.



 


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Section 8.09 Subordination of All Guarantor Claims.



(a) As used herein, the term “Guarantor Claims” shall mean all debts and liabilities of either
Borrower or any Subsidiary of either Borrower to any Guarantor, whether such debts and liabilities
now exist or are hereafter incurred or arise, or whether the obligation of such Borrower or such
Subsidiary thereon be direct, contingent, primary, secondary, several, joint and several, or
otherwise, and irrespective of whether such debts or liabilities be evidenced by note, contract,
open account, or otherwise, and irrespective of the person or persons in whose favor such debts or
liabilities may, at their inception, have been, or may hereafter be created, or the manner in which
they have been or may hereafter be acquired by any Guarantor. The Guarantor Claims shall include
without limitation all rights and claims of any Guarantor against either Borrower or any Subsidiary
of either Borrower arising as a result of subrogation or otherwise as a result of such Guarantor’s
payment of all or a portion of the Obligations. Until the Obligations shall be paid and satisfied
in full, all Revolving Commitments have expired or been terminated and all Letters of Credit have
expired or been cash collateralized on the terms set forth in this Agreement and each Guarantor
shall have performed all of its obligations hereunder, no Guarantor shall receive or collect,
directly or indirectly, from either Borrower or any Subsidiary of either Borrower or any other
party any amount upon the Guarantor Claims.



(b) Each Borrower and each Guarantor hereby (i) authorizes the Administrative Agent and the
Lenders to demand specific performance of the terms of this Section 8.09, whether or not
either Borrower or any Guarantor shall have complied with any of the provisions hereof applicable
to it, at any time when it shall have failed to comply with any provisions of this Section
8.09 which are applicable to it and (ii) irrevocably waives any defense based on the adequacy
of a remedy at law, which might be asserted as a bar to such remedy of specific performance.



(c) Upon any distribution of assets of any Loan Party in any dissolution, winding up,
liquidation or reorganization (whether in bankruptcy, insolvency or receivership proceedings or
upon an assignment for the benefit of creditors or otherwise):




(i) The Lenders shall first be entitled to receive payment in full of the Obligations
before either Borrower or any Guarantor is entitled to receive any payment on account of the
Guarantor Claims.




(ii) Any payment or distribution of assets of any Loan Party of any kind or character,
whether in cash, property or securities, to which either Borrower or any Guarantor would be
entitled except for the provisions of this Section 8.09(c), shall be paid by the
liquidating trustee or agent or other Person making such payment or distribution directly to
the Lenders, to the extent necessary to make payment in full of all Obligations remaining
unpaid after giving effect to any concurrent payment or distribution or provisions therefor
to the Lenders.



(d) No right of the Lenders or any other present or future holders of any Obligations to
enforce the subordination provisions herein shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of any Loan Party or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by either Borrower or any Guarantor with the
terms hereof, regardless of any knowledge thereof which any such holder may have or be otherwise
charged with.


 


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Section 8.10 Claims in Bankruptcy. In the event of receivership, bankruptcy,
reorganization, arrangement, debtor’s relief, or other insolvency proceedings involving either
Borrower or any Subsidiary of either Borrower, as debtor, the Lenders shall have the right to prove
their claim in any proceeding, so as to establish their rights hereunder and receive directly from
the receiver, trustee or other court custodian, dividends and payments which would otherwise be
payable upon Guarantor Claims. Each Guarantor hereby assigns such dividends and payments to the
Lenders. Should the Administrative Agent or any Lender receive, for application upon the
Obligations, any such dividend or payment which is otherwise payable to any Guarantor, and which,
as between either Borrower or any Subsidiary of either Borrower and any Guarantor, shall constitute
a credit upon the Guarantor Claims, then upon payment in full of the Obligations and the expiration
or cash collateralization of the Letters of Credit in accordance with the terms of this Agreement
and termination of the Revolving Commitments, such Guarantor shall become subrogated to the rights
of the Lenders to the extent that such payments to the Lenders on the Guarantor Claims have
contributed toward the liquidation of the Obligations and such subrogation shall be with respect to
that proportion of the Obligations which would have been unpaid if the Administrative Agent or a
Lender had not received dividends or payments upon the Guarantor Claims.



Section 8.11 Payments Held in Trust. In the event that notwithstanding Sections
8.09 and 8.10 above, any Guarantor should receive any funds, payments, claims or
distributions which is prohibited by such Sections, such Guarantor agrees to hold in trust for the
Lenders an amount equal to the amount of all funds, payments, claims or distributions so received,
and agrees that it shall have absolutely no dominion over the amount of such funds, payments,
claims or distributions except to pay them promptly to the Administrative Agent, and each Guarantor
covenants promptly to pay the same to the Administrative Agent.



Section 8.12 Benefit of Guaranty. The provisions of this Article VIII are for
the benefit of the Lenders, their successors, and their permitted transferees, endorsees and
assigns. In the event all or any part of the Obligations are transferred, endorsed or assigned by
the Lenders, as the case may be, to any Person or Persons in accordance with the terms of this
Agreement, any reference to the “Lenders” herein, as the case may be, shall be deemed to refer
equally to such Person or Persons.



Section 8.13 Reinstatement. This Article VIII shall remain in full force and
effect and continue to be effective in the event any petition is filed by or against any Borrower,
any Guarantor or any other Loan Party for liquidation or reorganization, in the event that any of
them becomes insolvent or makes an assignment for the benefit of creditors or in the event a
receiver, trustee or similar Person is appointed for all or any significant part of any of their
assets, and shall continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Obligations, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by the Lenders, whether
as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the Obligations shall be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.


 


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Section 8.14 Liens Subordinate. Each Guarantor agrees that any liens, security
interests, judgment liens, charges or other encumbrances upon either Borrower’s or any Subsidiary
of either Borrower’s assets securing payment of the Guarantor Claims shall be and remain inferior
and subordinate to any liens, security interests, judgment liens, charges or other encumbrances
upon either Borrower’s or any Subsidiary of either Borrower’s assets securing payment of the
Obligations, regardless of whether such encumbrances in favor of any Guarantor, the Administrative
Agent or the Lenders presently exist or are hereafter created or attach.



Section 8.15 Guarantor’s Enforcement Rights. Without the prior written consent of the
Lenders, no Guarantor shall (a) exercise or enforce any creditor’s right it may have against either
Borrower or any Subsidiary of either Borrower, or (b) foreclose, repossess, sequester or otherwise
take steps or institute any action or proceeding (judicial or otherwise, including without
limitation the commencement of or joinder in any liquidation, bankruptcy, rearrangement, debtor’s
relief or insolvency proceeding) to enforce any lien, mortgages, deeds of trust, security interest,
collateral rights, judgments or other encumbrances on assets of either Borrower or any Subsidiary
of either Borrower held by Guarantor.



Section 8.16 Limitation. It is the intention of the Guarantors and each Secured Party
that the amount of the Obligations guaranteed by each Guarantor shall be in, but not in excess of,
the maximum amount permitted by fraudulent conveyance, fraudulent transfer and similar Legal
Requirement applicable to such Guarantor. Accordingly, notwithstanding anything to the contrary
contained in this Article VIII or in any other agreement or instrument executed in
connection with the payment of any of the Obligations guaranteed hereby, the amount of the
Obligations guaranteed by a Guarantor under this Article VIII shall be limited to an
aggregate amount equal to the largest amount that would not render such Guarantor’s obligations
hereunder subject to avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provision of any other applicable law.




Section 8.17 Contribution Rights.



(a) To the extent that any payment is made under this Guaranty (a “Guarantor
Payment”), by a Guarantor, which Guarantor Payment, taking into account all other Guarantor
Payments then previously or concurrently made by all other Guarantors, exceeds the amount which
such Guarantor would otherwise have paid if each Guarantor had paid the aggregate Obligations
satisfied by such Guarantor Payment in the same proportion that such Guarantor’s Allocable Amount
(as defined below) (in effect immediately prior to such Guarantor Payment) bore to the aggregate
Allocable Amounts of all of the Guarantors in effect immediately prior to the making of such
Guarantor Payment, then, following the date on which the Obligations shall be paid and satisfied in
full and the expiration or cash collateralization of the Letters of Credit in accordance with the
terms of this Agreement and termination of the Revolving Commitments and each Guarantor shall have
performed all of its obligations hereunder, such Guarantor shall be entitled to receive
contribution and indemnification payments from, and be reimbursed by, each of the other Guarantors
for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect
immediately prior to such Guarantor Payment.



(b) As of any date of determination, the “Allocable Amount” of any Guarantor shall be equal to
the maximum amount of the claim which could then be recovered from such Guarantor under this
Guaranty without rendering such claim voidable or avoidable under Section
548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent
Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.


 


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(c) This Section 8.17 is intended only to define the relative rights of the Guarantors
and nothing set forth in this Section 8.17 is intended to or shall impair the obligations
of the Guarantors, jointly and severally, to pay any amounts as and when the same shall become due
and payable in accordance with the terms of this Guaranty.



(d) The rights of the parties under this Section 8.17 shall be exercisable upon the
date the Obligations shall be paid and satisfied in full and the expiration or cash
collateralization of the Letters of Credit in accordance with the terms of this Agreement and
termination of the Revolving Commitments and each Guarantor shall have performed all of its
obligations hereunder.



(e) The parties hereto acknowledge that the right of contribution and indemnification
hereunder shall constitute assets of any Guarantor to which such contribution and indemnification
is owing.



Section 8.18 Release of Guarantors. Upon the sale or disposition of any Guarantor
pursuant to the terms of this Agreement to any Person other than either Borrower or any other
Guarantor, the Collateral Agent shall, at the Borrowers’ expense, execute and deliver to such
Guarantor such documents as such Guarantor shall reasonably require and take any other actions
reasonably required to evidence or effect the release of such Guarantor from this Agreement and the
other Loan Documents.



ARTICLE IX




THE ADMINISTRATIVE AGENT




Section 9.01 Appointment and Authority. Each of the Lenders and the Issuing Bank
hereby irrevocably appoints SG 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 such 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 Issuing Bank, and no
Loan Party shall have rights as a third party beneficiary of any of such provisions.



Section 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 Parent 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.


 


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Section 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
Majority 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 Parent or any of its Affiliates that is communicated to or obtained by the Person serving as
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 Majority 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) 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 Parent or either Borrower, a Lender or the Issuing Bank.



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 III or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



Section 9.04 Reliance by the 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 Revolving Advance,
Swing Line Advance, or the issuance of a Letter of Credit, that by its
terms must be fulfilled to the satisfaction of a Lender or the Issuing Bank, the Administrative
Agent may presume that such condition is satisfactory to such Lender or the Issuing Bank unless the
Administrative Agent shall have received notice to the contrary from such Lender or the Issuing
Bank prior to the making of such Revolving Advance, Swing Line Advance, or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for a
Loan Party), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.



 


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Section 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 the Administrative Agent.



Section 9.06 Resignation of the Administrative Agent. The Administrative Agent may at
any time give notice of its resignation to the Lenders, the Issuing Bank and the Borrowers. Upon
receipt of any such notice of resignation, the Majority Lenders shall have the right, and provided
that no Default or Event of Default exists, with the consent of the Borrowers (which consent shall
not be unreasonably withheld or delayed), to appoint a successor, which shall be a Lender with an
office in New York, or an Affiliate of any such Lender with an office in New York. If no such
successor shall have been so appointed by the Majority Lenders and shall have accepted such
appointment within 60 days after the retiring Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lenders and the Issuing Bank, appoint a
successor Administrative Agent meeting the qualifications set forth above provided and consented to
by the Borrowers (provided that no Default or Event of Default exists and which consent shall not
be unreasonably withheld or delayed) that if the Administrative Agent shall notify the Borrowers
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 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 Issuing Bank 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 such Administrative Agent shall instead be made by or to each Lender and the Issuing Bank
directly, until such time as the Majority Lenders appoint a successor Administrative Agent as
provided for above in this paragraph. Upon the acceptance of a successor’s appointment as 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 paragraph).
The fees payable by
the Borrowers 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.




 


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Section 9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and
the Issuing Bank 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 decision
to enter into this Agreement. Each Lender and the Issuing Bank 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.



Section 9.08 Indemnification. WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED
HEREBY ARE CONSUMMATED, THE LENDERS SEVERALLY AGREE TO INDEMNIFY UPON DEMAND THE ADMINISTRATIVE
AGENT AND THE ISSUING BANK, IN THEIR CAPACITY AS ADMINISTRATIVE AGENT AND ISSUING BANK, AND EACH
RELATED PARTY OF ANY OF THE FOREGOING (TO THE EXTENT NOT REIMBURSED BY THE LOAN PARTIES), ACCORDING
TO THEIR RESPECTIVE PRO RATA SHARES, AND HOLD HARMLESS SUCH INDEMNITEE FROM AND AGAINST ANY AND ALL
INDEMNIFIED LIABILITIES (AS DEFINED IN SECTION 10.05) IN ALL CASES, WHETHER OR NOT CAUSED BY OR
ARISING, IN WHOLE OR IN PART, OUT OF THE NEGLIGENCE OF ANY RELATED PARTY; PROVIDED,
HOWEVER THAT NO LENDER SHALL BE LIABLE FOR THE PAYMENT TO ANY INDEMNITEE FOR ANY PORTION OF
SUCH INDEMNIFIED LIABILITIES TO THE EXTENT DETERMINED IN A FINAL, NONAPPEALABLE JUDGMENT BY A COURT
OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH RELATED PARTY’S OWN GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT; PROVIDED, HOWEVER, THAT NO ACTION TAKEN IN ACCORDANCE WITH THE
DIRECTIONS OF THE MAJORITY LENDERS SHALL BE DEEMED TO CONSTITUTE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT FOR PURPOSES OF THIS SECTION. WITHOUT LIMITATION OF THE FOREGOING, EACH LENDER AGREES
TO REIMBURSE THE ADMINISTRATIVE AGENT AND THE ISSUING BANK PROMPTLY UPON DEMAND FOR ITS RATABLE
SHARE OF ANY OUT-OF-POCKET EXPENSES (INCLUDING ALL FEES, EXPENSES AND DISBURSEMENTS OF ANY LAW FIRM
OR OTHER EXTERNAL COUNSEL INCURRED BY THE ADMINISTRATIVE AGENT OR THE ISSUING BANK IN CONNECTION
WITH THE PREPARATION, EXECUTION, DELIVERY, ADMINISTRATION, MODIFICATION, AMENDMENT, OR ENFORCEMENT
(WHETHER THROUGH NEGOTIATIONS, LEGAL PROCEEDINGS, OR OTHERWISE) OF, OR LEGAL ADVICE IN RESPECT OF
RIGHTS OR RESPONSIBILITIES UNDER, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, TO THE EXTENT
THAT THE ADMINISTRATIVE AGENT OR THE ISSUING BANK IS NOT REIMBURSED FOR SUCH BY THE LOAN PARTIES.
THE UNDERTAKING IN THIS SECTION SHALL SURVIVE TERMINATION OF THE COMMITMENTS, THE PAYMENT OF ALL
OTHER OBLIGATIONS AND THE RESIGNATION OF THE ADMINISTRATIVE AGENT.


 


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Section 9.09 Collateral and Guaranty Matters.



(a) The Lenders irrevocably authorize the Administrative Agent, at its option and in its
discretion, without the necessity of any notice to or further consent from the Secured Parties:




(i) to release any Lien on any property granted to or held by the Administrative Agent
under any Security Document (i) upon termination of the Revolving Commitments and payment in
full of all Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (ii) that is sold or to be sold as part
of or in connection with any sale permitted hereunder or under any other Loan Document, or
(iii) subject to Section 10.01, if approved, authorized or ratified in writing by
the Majority Lenders;




(ii) to take any actions with respect to any Collateral or Security Documents which may
be necessary to perfect and maintain Acceptable Security Interests in and Liens upon the
Collateral granted pursuant to the Security Documents; and




(iii) to take any action in exigent circumstances as may be reasonably necessary to
preserve any rights or privileges of the Secured Parties under the Loan Documents or
applicable Legal Requirements.



(b) Upon the request of the Administrative Agent at any time, the Lenders will confirm in
writing the Administrative Agent’s authority to release particular types or items of Collateral
pursuant to this Section 9.09.



(c) Each Loan Party hereby irrevocably appoints the Administrative Agent as such Loan Party’s
attorney-in-fact, with full authority to, after the occurrence and during the continuance of an
Event of Default, act for such Loan Party and in the name of such Loan Party to, in the
Administrative Agent’s discretion upon the occurrence and during the continuance of an Event of
Default, (i) file one or more financing or continuation statements, and amendments thereto,
relative to all or any part of the Collateral without the signature of such Loan Party where
permitted by law, (ii) to receive, endorse, and collect any drafts or other instruments, documents,
and chattel paper which are part of the Collateral, (iii) to ask, demand, collect, sue for,
recover, compromise, receive, and give acquittance and receipts for moneys due and to become due
under or in respect of any of the Collateral, (iv) to file any claims or take any action or
institute any proceedings which the Administrative Agent may reasonably deem necessary or desirable
for the collection of any of the Collateral or otherwise to enforce the rights of the
Administrative Agent with respect to any of the Collateral and (v) if any Loan Party fails to
perform any covenant contained in this Agreement or the other Security Documents after the
expiration of any applicable grace periods, the Administrative Agent may itself perform, or cause
performance of, such covenant, and such Loan Party shall pay for the expenses of the
Administrative Agent incurred in connection therewith in accordance with Section 10.04. The
power of attorney granted hereby is coupled with an interest and is irrevocable.


 


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(d) The powers conferred on the Administrative Agent under this Agreement and the other
Security Documents are solely to protect its interest in the Collateral and shall not impose any
duty upon it to exercise any such powers. Beyond the safe custody thereof, the Administrative
Agent and each Lender shall have no duty with respect to any Collateral in its possession or
control (or in the possession or control of any agent or bailee) or with respect to any income
thereon or the preservation of rights against prior parties or any other rights pertaining thereto.
The Administrative Agent shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which the Administrative Agent accords its own property. Neither the
Administrative Agent nor any Lender shall be liable or responsible for any loss or damage to any of
the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any
warehouseman, carrier, forwarding agency, consignee, broker or other agent or bailee selected by
Borrower or selected by the Administrative Agent in good faith.



Section 9.10 Intercreditor Agreement and Security Documents. Each Lender hereby
further authorizes the Administrative Agent, on behalf of and for the benefit of Secured Parties,
without further authorization or consent of the Lenders, to enter into the Intercreditor Agreement,
Amendment No. 1 to the Intercreditor Agreement in substantially in the form distributed to the
Lenders, and each Security Document as secured party, exercise all the powers, rights and remedies
under the Intercreditor Agreement and the other Security Documents for the benefit of Secured
Parties in accordance with the terms thereof, and each Lender agrees to be bound by the terms of
the Intercreditor Agreement and each such Security Document, provided that the
Administrative Agent shall not enter into or consent to any amendment, modification, termination or
waiver of any provision contained in any such Security Document or the Intercreditor Agreement
except as otherwise permitted by Section 10.01.



Section 9.11 No Other Duties, etc. Anything herein to the contrary notwithstanding,
none of the Arranger or the Syndication Agent or Sole Bookrunner 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
Issuing Bank.


 


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ARTICLE X




MISCELLANEOUS




Section 10.01 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or any other Loan Document (other than the Fee Letters), and no consent to any departure
by the Parent or any other Loan Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Majority Lenders or by the Administrative Agent, with the
consent of the Majority Lenders and the Borrowers and then such amendment, waiver or consent shall
be effective only in the specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent shall:



(a) waive any condition set forth in Section 3.01 without the written consent of each
Lender;



(b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 7.02) without the written consent of such Lender;



(c) postpone any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayment 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 or amount of interest specified herein on, any
Revolving Advance, Swing Line Advance, or Reimbursement Obligation, or (subject to clause (v) of
the second proviso to this Section 10.01) any fees or other amounts payable hereunder or
under any other Loan Document without the prior written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Majority Lenders shall be
necessary to waive any obligation of either Borrower to pay interest at the Default Rate;



(e) change Section 2.02 or 2.12 in a manner that would alter the pro rata sharing of
payments required thereby without the written consent of each Lender;



(f) change any provision of this Section, or the definition of “Majority 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 directly affected thereby;



(g) release any Guarantor from the Guaranty or all or any substantial portion of the
Collateral without the written consent of each Lender; provided, however, that any Guarantor or
Collateral may be released if they are sold or transferred as permitted hereunder; or



(h) amend, modify, terminate or waive any provision contained in Section 2, 3, or 5 of the
Intercreditor Agreement without the consent of all of the Lenders,



and, provided further, that (i) no amendment, waiver or consent shall, unless in writing
and signed by the Issuing Bank in addition to the Lenders required above, affect the rights or
duties of the Issuing Bank under this Agreement or any Letter of Credit Application 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; (iv) Section 10.06(g) may not be amended, waived or otherwise modified
without the consent of each Granting Lender all or any part of whose Revolving Advances are being
funded by a SPC at the time of such amendment, waiver or other modification; and (v) the Fee
Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by
the parties thereto.


 


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Section 10.02 Notices, Etc.



(a) General. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in paragraph (c) 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, sent by telecopier or (subject
to subsection (c) below) electronic mail address as follows:




(i) if to either Borrower or any other Loan Party, the Administrative Agent, the
Issuing Bank or the Swing Line Lender, to the address, facsimile number, electronic mail
address or telephone number specified for such Person on Schedule 10.02 or to such
other address, facsimile number, electronic mail address or telephone number as shall be
designated by such party in a notice to the other parties; and




(ii) if to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as shall be designated by such
party in a notice to the Administrative Agent.



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 on the next Business Day for the recipient) and confirmed received.
Notices delivered through electronic communications to the extent provided in paragraph (c) below,
shall be effective as provided in said paragraph (c). In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder.



(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be
transmitted and/or signed by facsimile. The effectiveness of any such documents and signatures
shall, subject to applicable Legal Requirements, have the same force and effect as manually-signed
originals and shall be binding on all Loan Parties, the Administrative Agent and the Lenders. The
Administrative Agent may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request or
deliver the same shall not limit the effectiveness of any facsimile document or signature.



(c) Limited Use of Electronic Mail. Notices and other communications to the Lenders
and the Issuing Bank 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 in its sole discretion, provided that the foregoing shall not apply to notices to any
Lender or the Issuing Bank pursuant to Article II if such Lender or the Issuing Bank, 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 Borrowers 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.




 


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(d) Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic Borrowing Notices
and Swing Line Loan Notices) purportedly given by or on behalf of a Loan Party 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 BORROWERS SHALL, JOINTLY AND SEVERALLY,
INDEMNIFY THE ADMINISTRATIVE AGENT, THE ISSUING BANK, EACH LENDER AND THEIR RELATED PARTIES FROM
ALL LOSSES, COSTS, EXPENSES AND LIABILITIES RESULTING FROM THE RELIANCE BY SUCH PERSON ON EACH
NOTICE PURPORTEDLY GIVEN BY OR ON BEHALF OF A BORROWER; PROVIDED THAT SUCH INDEMNITY SHALL NOT BE
AVAILABLE TO THE EXTENT THAT SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS,
DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS ARE DETERMINED BY A COURT OF
COMPETENT JURISDICTION BY FINAL AND NON-APPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PERSON SEEKING INDEMNIFICATION. All telephonic
notices to and other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such recording.



Section 10.03 No Waiver; Cumulative Remedies. No failure on the part of any Lender 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 such right 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 in this Agreement are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.



Section 10.04 Costs and Expenses. The Borrowers shall, jointly and severally pay (i)
all reasonable out-of-pocket expenses incurred by the Administrative Agent and their Affiliates
(including the reasonable fees, charges and disbursements of 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 Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the Issuing Bank
(including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the Issuing Bank) 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 Revolving Advances or Swing
Line Advances 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. The foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Administrative Agent and the cost of independent public accountants and
other outside experts retained by the Administrative Agent or any Lender. All amounts due under
this Section 10.04 shall be payable within ten Business Days after demand therefor. The
agreements in this Section shall survive the termination of the Commitments and repayment of all
other Obligations.



 


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Section 10.05 Indemnification. THE BORROWERS SHALL, JOINTLY AND SEVERALLY INDEMNIFY
THE ADMINISTRATIVE AGENT, EACH LENDER AND THE ISSUING BANK, 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 LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS,
DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES, OR DISBURSEMENTS (INCLUDING ALL REASONABLY
INCURRED FEES, EXPENSES AND DISBURSEMENTS OF ANY LAW FIRM OR OTHER EXTERNAL COUNSEL) OF ANY KIND OR
NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST ANY INDEMNITEE IN ANY
WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (A) THE EXECUTION, DELIVERY, ENFORCEMENT,
PERFORMANCE, OR ADMINISTRATION OF THIS AGREEMENT, ANY LOAN DOCUMENT, OR ANY OTHER AGREEMENT, LETTER
OR INSTRUMENT DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBY, (B) ANY COMMITMENT, REVOLVING ADVANCE, SWING
LINE ADVANCE, OR LETTER OF CREDIT OR THE USE OR PROPOSED USE OF THE PROCEEDS THEREFROM (INCLUDING
ANY REFUSAL BY THE ISSUING BANK 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), (C) ANY ACTION TAKEN OR OMITTED BY THE ADMINISTRATIVE AGENT OR THE ISSUING BANK
UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (INCLUDING THE ADMINISTRATIVE AGENT’S AND THE
ISSUING BANK’S OWN NEGLIGENCE), (D) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS
MATERIALS ON OR FROM ANY PROPERTY CURRENTLY OR FORMERLY OWNED OR OPERATED BY THE BORROWER, ANY
SUBSIDIARY OR ANY OTHER LOAN PARTY, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE
BORROWER, ANY SUBSIDIARY OR ANY OTHER LOAN PARTY, OR (E) ANY ACTUAL OR PROSPECTIVE CLAIM,
LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY (INCLUDING ANY INVESTIGATION OF, PREPARATION FOR, OR DEFENSE OF
ANY PENDING
OR THREATENED CLAIM, INVESTIGATION, LITIGATION OR PROCEEDING) AND REGARDLESS OF WHETHER ANY
INDEMNITEE IS A PARTY THERETO (ALL THE FOREGOING, COLLECTIVELY, THE “INDEMNIFIED
LIABILITIES”); PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE
AVAILABLE TO THE EXTENT THAT SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS,
DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS ARE DETERMINED BY A COURT OF
COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE.



 


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TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO LOAN PARTY SHALL ASSERT, AND HEREBY
WAIVES, ANY CLAIM AGAINST ANY INDEMNITEE, 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 SHALL BE LIABLE FOR ANY DAMAGES
ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF ANY INFORMATION OR OTHER MATERIALS DISTRIBUTED BY
IT 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.



ALL AMOUNTS DUE UNDER THIS SECTION 10.05 SHALL BE PAYABLE WITHIN TEN BUSINESS DAYS
AFTER DEMAND THEREFOR. THE AGREEMENTS IN THIS SECTION SHALL SURVIVE THE RESIGNATION OF THE
ADMINISTRATIVE AGENT, THE REPLACEMENT OF ANY LENDER, THE TERMINATION OF THE COMMITMENTS AND THE
REPAYMENT, SATISFACTION OR DISCHARGE OF ALL THE OTHER OBLIGATIONS.




Section 10.06 Successors and Assigns.



(a) Generally. The terms and provisions of this Agreement and the other Loan
Documents shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way
of participation in accordance with the provisions of subsection (d) of this Section, (iii) by way
of pledge or assignment of a security interest subject to the restrictions of subsection (f) or (i)
of this Section, or (iv) to an SPC in accordance with the provisions of subsection (h) of this
Section (and any other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this 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 Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


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(b) Assignments by Lenders. Any Lender may assign to one or more Eligible Assignees
all or any portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Revolving Advances owing to it, participations
in Letter of Credit Obligations and in Swing Line Advances) at the time owing to it);
provided, however, that




(i) except in the case of an assignment of the entire remaining amount of the assigning
Lender’s Revolving Commitment and the Revolving Advances owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an SPC (as defined in subsection (g)
of this Section) with respect to a Lender, the aggregate amount of the Revolving Commitments
and Revolving Advances of such Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such assignment)
shall not be less than $5,000,000.00;




(ii) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance; and




(iii) each Eligible Assignee (other than an Eligible Assignee that is a Lender or an
Affiliate of a Lender) shall pay to the Administrative Agent a $3,500 processing and
recording fee. Any such assignment need not be ratable as among the Facilities.



Upon such execution, delivery, acceptance and recording thereof by the Administrative Agent
pursuant to paragraph (c) of this Section, from and after the effective date specified in each
Assignment and Acceptance, (A) the Eligible Assignee thereunder shall be a party hereto for all
purposes and, to the extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (B)
such assigning Lender thereunder shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of such Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the
benefits of Sections 2.09, 2.11, 10.04 and 10.05 with respect to
facts and circumstances occurring prior to the effective date of such assignment). 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 shall maintain at its Applicable Lending
Office a copy of each Assignment and Acceptance delivered to and accepted by it and a register for
the recordation of the names and addresses of the Lenders and the Commitments of, and principal
amount of the Revolving Advances owing to, each Lender from time to time (the “Register”).
The entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and each of the Loan Parties, the Administrative Agent, the Issuing Bank, and
the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection by any Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior notice.


 


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(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural
person or either Borrower or any of either 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 Revolving Commitment and/or the Revolving Advances
(including such Lender’s participations in Letter of Credit Obligations and/or Swing Line Advances)
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 Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement 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 directly affects
such Participant. Subject to subsection (e) of this Section, the Borrowers agree that each
Participant shall be entitled to the benefits of Sections 2.08, 2.09, 2.11,
10.04 and 10.05 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 7.05 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.12 as though it
were a Lender.



(e) A Participant shall not be entitled to receive any greater payment under Section
2.09 or 2.11 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrowers’ prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.11
unless the Borrowers are notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section 2.11(e) as
though it were a Lender.



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



(h) Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may
create a security interest in all or any portion of the Revolving Advances owing to it and the
Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by
such Fund as security for such obligations or securities, provided that unless and until
such trustee actually becomes a Lender in compliance with the other provisions of this Section
10.06, (i) no such pledge shall release the pledging Lender from any of its obligations under
the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a
Lender under the Loan Documents even though such trustee may have acquired ownership rights with
respect to the pledged interest through foreclosure or otherwise.



Section 10.07 Confidentiality. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority (including any self-regulatory authority, such as the National Association
of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those



 


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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
Borrowers and its obligations, (g) with the consent of the Borrowers or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a
source other than the Borrowers. For purposes of this Section, “Information” means all information
received from any Loan Party relating to any Loan Party or any of their respective businesses,
other than any such information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by any Loan Party, provided that, in the case of
information received from a Loan Party after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



Section 10.08 Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement.



Section 10.09 Survival of Representations, etc. All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by the Administrative
Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default at the time of any Revolving Advance or
Swing Line Advance, and shall continue in full force and effect as long as any Revolving Advance or
Swing Line Advance or any other Obligation hereunder shall remain unpaid or unsatisfied or any
Letter of Credit shall remain outstanding.



Section 10.10 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.


 


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Section 10.11 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 Revolving Advances or, if it exceeds such unpaid principal, refunded to the Borrowers.
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.



Section 10.12 Governing Law. This Agreement and each of the other Loan Documents
shall be governed by and construed in accordance with the laws of the State of New York and the
applicable laws of the United States of America.




Section 10.13 Joint and Several Liability.



(a) Each of the Borrowers is accepting joint and several liability hereunder in consideration
of the financial accommodations to be provided by the Secured Parties under this Agreement with
respect to the Revolving Advances, Swing Line Advances, and Reimbursement Obligations, for the
mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the
undertakings of each of the Borrowers to accept joint and several liability for the Obligations of
each of them.



(b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other
Borrower, with respect to the payment and performance of all of the Obligations arising under this
Agreement, it being the intention of the parties hereto that all the Obligations shall be the joint
and several obligations of all the Borrowers without preferences or distinction among them.



(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect
to any of the Obligations hereunder as and when due or to perform any of such Obligations in
accordance with the terms thereof, then in each such event the other Borrower will make such
payment with respect to, or perform, such Obligation.



(d) The obligations of each Borrower under the provisions of this Section 10.13
constitute full recourse obligations of such Borrower enforceable against it to the full extent of
its properties and assets, irrespective of the validity, regularity or enforceability of this
Agreement or any other circumstance whatsoever.



 


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(e) Except as otherwise expressly provided herein or in the other Loan Documents, each
Borrower hereby waives notice of acceptance of its joint and several liability, notice of any and
all Revolving Advances or Swing Line Advances made or Letters of Credit issued under this
Agreement, notice of occurrence of any Default or Event of Default, or of any demand for any
payment under this Agreement, notice of any action at any time taken or omitted by any Secured
Party under or in respect of any of the Obligations hereunder, any requirement of diligence and,
generally, all demands, notices and other formalities of every kind in connection with this
Agreement. Each Borrower hereby assents to, and waives notice of, any extension or postponement of
the time for the payment of any of the Obligations hereunder, the acceptance of any partial payment
thereon, any waiver, consent or other action or acquiescence by any Secured
Party at any time or times in respect of any default by any Borrower in the performance or
satisfaction of any term, covenant, condition or provision of this Agreement, any and all other
indulgences whatsoever by the Secured Parties in respect of any of the Obligations hereunder, and
the taking, addition, substitution or release, in whole or in part, at any time or times, of any
security for any of such Obligations or the addition, substitution or release, in whole or in part,
of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any
other action or delay in acting or failure to act on the part of the Secured Parties including,
without limitation, any failure strictly or diligently to assert any right or to pursue any remedy
or to comply fully with applicable laws or regulations thereunder, which might, but for the
provisions of this Section 10.13, afford grounds for terminating, discharging or relieving such
Borrower, in whole or in part, from any of its obligations under this Section 10.13, it being the
intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied,
the obligations of such Borrower under this Section 10.13 shall not be discharged except by
performance and then only to the extent of such performance. The obligations of each Borrower
under this Section 10.13 shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to the
other Borrower. The joint and several liability of the Borrowers hereunder shall continue in full
force and effect notwithstanding any absorption, merger, amalgamation or any other change
whatsoever in the name, membership, constitution or place of formation of either Borrower.



(f) The provisions of this Section 10.13 are made for the benefit of the Secured Parties and
their successors and assigns, and may be enforced by them in accordance with the terms of this
Agreement from time to time against either of the Borrowers as often as occasion therefor may arise
and without requirement on the part of any Secured Party first to marshall any of their claims or
to exercise any of their rights against the other Borrower or to exhaust any remedies available to
them against the other Borrower or to resort to any other source or means of obtaining payment of
any of the Obligations hereunder or to elect any other remedy. The provisions of this Section
10.13 shall remain in effect until all the Obligations hereunder shall have been paid in full or
otherwise fully satisfied and the Revolving Commitments have been terminated. If at any time, any
payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must
otherwise be restored or returned by any Secured Party upon the insolvency, bankruptcy or
reorganization of the Borrowers, or otherwise, the provisions of this Section 10.13 will forthwith
be reinstated in effect, as though such payment had not been made.




Section 10.14 SUBMISSION TO JURISDICTION.



(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED
STATES FOR THE EASTERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWERS, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWERS, THE ADMINISTRATIVE
AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
THE BORROWERS, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.


 


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(b) Each Loan Party has irrevocably appointed CT Corporation System (the “Process
Agent”), with an office on the date hereof at 111 Eighth Ave., New York, New York, 10011, as
its agent to receive on its behalf and on behalf of its property service of copies of any summons
or complaint or any other process which may be served in any action. Such service may be made by
mailing or delivering a copy of such process to such Loan Party in care of the Process Agent at the
Process Agent’s above address, and each Loan Party hereby irrevocably authorizes and directs the
Process Agent to accept such service on its behalf. As an alternative method of service, each Loan
Party also irrevocably consents to the service of any and all process in any such action or
proceeding by the mailing of copies of such process to it at the address specified for it on the
signature pages of this Agreement.



(c) Nothing in this Section 10.14 shall affect the right of the Administrative Agent
or any other Lender to serve legal process in any other manner permitted by law or affect the right
of the Administrative Agent or any Lender to bring any action or proceeding against any Loan Party
(as a Borrower or as a Guarantor) in the courts of any other jurisdiction.



Section 10.15 WAIVER OF JURY. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT
ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.



Section 10.16 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS AMONG THE PARTIES. 



[Signature pages follow]





 


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EXECUTED as of the date first above written.



	 	 	 	 	 
	 	BORROWERS:



MXENERGY INC.

 	 
	 	By:  	/s/ Carole R. Artman-Hodge
 	 
	 	 	Carole R. Artman-Hodge 	 
	 	 	Executive Vice President 	 
	 
	 	MXENERGY ELECTRIC INC.

 	 
	 	By:  	/s/ Carole R. Artman-Hodge
 	 
	 	 	Carole R. Artman-Hodge 	 
	 	 	Executive Vice President 	 
	 
	 	GUARANTORS:



MXENERGY HOLDINGS INC.

 	 
	 	By:  	/s/ Carole R. Artman-Hodge
 	 
	 	 	Carole R. Artman-Hodge 	 
	 	 	Executive Vice President 	 
	 
	 	ONLINE CHOICE INC.

MXENERGY GAS CAPITAL HOLDINGS CORP.

MXENERGY ELECTRIC CAPITAL HOLDINGS CORP.

MXENERGY GAS CAPITAL CORP.

MXENERGY ELECTRIC CAPITAL CORP.

MXENERGY CAPITAL HOLDINGS CORP.

INFOMETER.COM INC.

MXENERGY CAPITAL CORP.

 	 
	 	By:  	/s/ Carole R. Artman-Hodge
 	 
	 	 	Carole R. Artman-Hodge 	 
	 	 	Vice President 	 
	 
	 	MXENERGY SERVICES INC.

 	 
	 	By:  	/s/ Carole R. Artman-Hodge
 	 
	 	 	Carole R. Artman-Hodge 	 
	 	 	Chief Operating Officer 	 



 


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	 	ADMINISTRATIVE AGENT:



SOCIÉTÉ GÉNÉRALE,

as Administrative Agent

 	 
	 	By:  	/s/ Barbara Paulsen
 	 
	 	 	Name:  	Barbara Paulsen 	 
	 	 	Title:  	Managing Director 	 
	 
	 	By:  	     /s/ Chung-Taek Oh
 	 
	 	 	Name:  	Chung-Taek Oh 	 
	 	 	Title:  	Vice President 	 
	 
	 	LENDERS:



SOCIÉTÉ GÉNÉRALE

 	 
	 	By:  	/s/ Barbara Paulsen
 	 
	 	 	Name:  	Barbara Paulsen 	 
	 	 	Title:  	Managing Director 	 
	 	 	 
	 	By:  	     /s/ Chung-Taek Oh
 	 
	 	 	Name:  	Chung-Taek Oh 	 
	 	 	Title:  	Vice President 	 
	 
	 	WACHOVIA BANK, N.A.

 	 
	 	By:  	/s/ John Puckhaber
 	 
	 	 	Name:  	John Puckhaber 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	CoBANK, ACB

 	 
	 	By:  	/s/ Dale Keyes
 	 
	 	 	Name:  	Dale Keyes 	 
	 	 	Title:  	Vice President 	 



 


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	 	MORGAN STANLEY BANK

 	 
	 	By:  	/s/ Stephen B. King
 	 
	 	 	Name:  	Stephen B. King 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	LASALLE BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ David Maiorella
 	 
	 	 	Name:  	David Maiorella 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	ALLIED IRISH BANKS p.l.c.

 	 
	 	By:  	/s/ Vaughn Buck
 	 
	 	 	Name:  	Vaughn Buck 	 
	 	 	Title:  	Executive Vice President 	 
	 	 	 
	 	By:  	                                              /s/ Mark Connelly
 	 
	 	 	Name:  	Mark Connelly 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	RZB FINANCE LLC

 	 
	 	By:  	/s/ Astrid Wilke
 	 
	 	 	Name:  	Astrid Wilke 	 
	 	 	Title:  	Vice President 	 
	 	 	 
	 	By:  	                                              /s/ Pearl Geffers
 	 
	 	 	Name:  	Pearl Geffers 	 
	 	 	Title:  	First Vice President 	 




 


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