EX-4.1









Exhibit 4.1






CREDIT AGREEMENT,



dated as of March 30, 2007




among




ASHMORE ENERGY INTERNATIONAL,

as the Cayman Borrower




AEI FINANCE HOLDING LLC,

as the U.S. Borrower




and




VARIOUS FINANCIAL INSTITUTIONS FROM TIME TO TIME

PARTIES HERETO,

as the Lenders




 






CREDIT SUISSE,

CAYMAN ISLANDS BRANCH,

as Administrative Agent




JPMORGAN CHASE BANK, N.A.,

as Collateral Agent




CREDIT SUISSE SECURITIES (USA) LLC and J.P. MORGAN SECURITIES, INC.,

as Joint Lead Arrangers, Joint Bookrunners and Joint Syndication Agents




and




CREDIT SUISSE SECURITIES (USA) LLC, 
as Sole
Structuring and Sole Documentation Agent






 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	PAGE	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	SECTION 1.1 Defined Terms
	 	 	1	 
	SECTION 1.2 Use of Defined Terms
	 	 	26	 
	SECTION 1.3 Cross-References
	 	 	26	 
	SECTION 1.4 Accounting and Financial Determinations
	 	 	27	 
	SECTION 1.5 Treatment of Certain Non-consolidated or Non-controlled Subsidiaries
	 	 	27	 
	SECTION 1.6 Subsidiaries’ Submission to Applicable Law and Contractual and
Fiduciary Duties
	 	 	28	 
	 
	 	 	 	 
	ARTICLE II COMMITMENTS, BORROWING PROCEDURES AND NOTES
	 	 	28	 
	SECTION 2.1 Commitments
	 	 	28	 
	SECTION 2.1.1 Term Loan Commitments
	 	 	28	 
	SECTION 2.1.2 Revolving Loan Commitments
	 	 	28	 
	SECTION 2.1.3 Synthetic Revolving Deposit Account
	 	 	29	 
	SECTION 2.2 Borrowing Procedures
	 	 	32	 
	SECTION 2.2.1 Term Loan Borrowing Procedures
	 	 	33	 
	SECTION 2.2.2 Revolving Loan Borrowing Procedures
	 	 	33	 
	SECTION 2.2.3 Synthetic Revolving Deposits; Synthetic Revolving Loan Borrowing
Procedures
	 	 	33	 
	SECTION 2.3 Continuation and Conversion Elections
	 	 	33	 
	SECTION 2.4. Funding
	 	 	34	 
	SECTION 2.5 Register; Notes
	 	 	34	 
	SECTION 2.6 Increase in Revolving Loan Commitment Amount
	 	 	35	 
	 
	 	 	 	 
	ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
	 	 	36	 
	SECTION 3.1 Repayments and Prepayments; Application
	 	 	36	 
	SECTION 3.1.1 Repayments and Prepayments
	 	 	36	 
	SECTION 3.1.2 Application
	 	 	40	 
	SECTION 3.2 Interest Provisions
	 	 	40	 
	SECTION 3.2.1 Rates; Fees
	 	 	40	 
	SECTION 3.2.2 Post-Maturity Rates
	 	 	41	 
	SECTION 3.2.3 Payment Dates
	 	 	41	 
	SECTION 3.3 Fees
	 	 	42	 
	SECTION 3.3.1 Revolving Loan Commitment Fee
	 	 	42	 
	 
	 	 	 	 
	ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
	 	 	42	 
	SECTION 4.1 LIBO Rate Lending Unlawful
	 	 	42	 
	SECTION 4.2 Deposits Unavailable
	 	 	43	 
	SECTION 4.3
Increased LIBO Rate Loan Costs, etc.
	 	 	43	 
	SECTION 4.4 Funding Losses
	 	 	44	 
	SECTION 4.5 Increased Capital Costs
	 	 	44	 
	SECTION 4.6 Taxes
	 	 	44	 
	SECTION 4.7 Payments, Computations, etc.
	 	 	47	 
	SECTION 4.8 Sharing of Payments
	 	 	48	 
	SECTION 4.9 Setoff
	 	 	48	 






i









 






	 	 	 	 	 
	 	 	PAGE	 
	 
	 	 	 	 
	SECTION 4.10 Replacement of Lenders
	 	 	49	 
	SECTION 4.11 Mitigation
	 	 	50	 
	 
	 	 	 	 
	ARTICLE V CONDITIONS TO LOANS
	 	 	50	 
	SECTION 5.1 Conditions to Closing
	 	 	50	 
	SECTION 5.1.1 Resolutions, etc.
	 	 	50	 
	SECTION 5.1.2 Certificates
	 	 	51	 
	SECTION 5.1.3 Delivery of Loan Documents; Notes
	 	 	51	 
	SECTION 5.1.4 Collateral Security Arrangements
	 	 	51	 
	SECTION 5.1.5 Opinions of Counsel
	 	 	51	 
	SECTION 5.1.6 Closing Fees, Expenses, etc.
	 	 	52	 
	SECTION 5.1.7 Satisfactory Legal Form
	 	 	52	 
	SECTION 5.1.8 Patriot Act Disclosures
	 	 	52	 
	SECTION 5.1.9 Financial Statements
	 	 	52	 
	SECTION 5.1.10 Compliance with Warranties, No Default, etc.
	 	 	52	 
	SECTION
5.1.11 Solvency, etc.
	 	 	52	 
	SECTION 5.1.12 Necessary Consents; Acknowledgments
	 	 	52	 
	SECTION 5.1.13 Rating of Loans
	 	 	53	 
	SECTION 5.1.14 Evidence of Insurance
	 	 	53	 
	SECTION 5.1.15 Existing Indebtedness
	 	 	53	 
	SECTION 5.2 Conditions to Revolving Loan and Synthetic Revolving Loan Borrowings
	 	 	53	 
	SECTION 5.2.1 Borrowing Request
	 	 	53	 
	SECTION 5.2.2 Closing Conditions
	 	 	53	 
	SECTION 5.2.3 Representations and Warranties
	 	 	53	 
	SECTION 5.2.4 No Default
	 	 	53	 
	 
	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	53	 
	SECTION 6.1 Organization, etc.
	 	 	54	 
	SECTION 6.2 Due Authorization, Non-Contravention, etc.
	 	 	54	 
	SECTION 6.3 Government Approval, Regulation, etc.
	 	 	54	 
	SECTION 6.4 Validity, etc.
	 	 	55	 
	SECTION 6.5 Financial Information
	 	 	55	 
	SECTION 6.6 No Material Adverse Change; Solvency
	 	 	55	 
	SECTION 6.5 Litigation
	 	 	55	 
	SECTION 6.8 Subsidiaries
	 	 	56	 
	SECTION 6.9 Ownership of Properties
	 	 	56	 
	SECTION 6.10 Taxes
	 	 	56	 
	SECTION 6.11 Pension and Welfare Plans
	 	 	56	 
	SECTION 6.12 Environmental Warranties
	 	 	56	 
	SECTION 6.13 Accuracy of Information
	 	 	57	 
	SECTION 6.14 Regulations U and X
	 	 	58	 
	SECTION 6.15 Absence of Any Undisclosed Liabilities
	 	 	58	 
	SECTION 6.16 Labor Matters
	 	 	58	 
	SECTION 6.17 Legal Form
	 	 	58	 
	SECTION 6.18 Ranking
	 	 	59	 
	SECTION 6.19 Collateral
	 	 	59	 
	SECTION 6.20 Commercial Activity; Absence of Immunity
	 	 	59	 






ii









 






	 	 	 	 	 
	 	 	PAGE	 
	 
	 	 	 	 
	
SECTION 6.21 Subsidiary Distributions
	 	 	59	 
	 
	 	 	 	 
	ARTICLE VII COVENANTS
	 	 	60	 
	SECTION 7.1 Affirmative Covenants
	 	 	60	 
	SECTION 7.1.1 Financial Information, Reports, Notices, etc.
	 	 	60	 
	SECTION 7.1.2 Maintenance of Existence; Compliance with Laws, etc.
	 	 	62	 
	SECTION 7.1.3 Maintenance of Properties
	 	 	63	 
	SECTION 7.1.4 Insurance
	 	 	63	 
	SECTION 7.1.5 Books and Records
	 	 	63	 
	SECTION 7.1.6 Environmental Law Covenant
	 	 	64	 
	SECTION 7.1.7 Use of Proceeds
	 	 	64	 
	SECTION 7.1.8 Collateral Requirements and Further Assurances
	 	 	65	 
	SECTION 7.1.9 Hedging Obligations
	 	 	65	 
	SECTION 7.1.10 Post-Closing Covenant
	 	 	65	 
	SECTION 7.2 Negative Covenants
	 	 	66	 
	SECTION 7.2.1 Business Activities
	 	 	66	 
	SECTION 7.2.2 Indebtedness
	 	 	66	 
	SECTION 7.2.3 Liens
	 	 	69	 
	SECTION 7.2.4 Financial Covenants
	 	 	71	 
	SECTION 7.2.5 Investments
	 	 	71	 
	SECTION 7.2.6 Financial Payments, etc.
	 	 	73	 
	SECTION 7.2.7 Capital Expenditures, etc.
	 	 	73	 
	SECTION 7.2.8 No Prepayment of Other Debt
	 	 	74	 
	SECTION 7.2.9 Issuance of Capital Securities
	 	 	74	 
	SECTION 7.2.10 Consolidation, Merger, Permitted Acquisitions, etc.
	 	 	75	 
	SECTION 7.2.11 Permitted Dispositions
	 	 	75	 
	SECTION 7.2.12 Modification of Certain Agreements
	 	 	76	 
	SECTION 7.2.13 Transactions with Affiliates
	 	 	77	 
	SECTION 7.2.14 Restrictive Agreements, etc.
	 	 	77	 
	SECTION 7.2.15 Sale and Leaseback
	 	 	78	 
	SECTION 7.2.16 U.S. Borrower
	 	 	78	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT
	 	 	78	 
	SECTION 8.1 Listing of Events of Default
	 	 	78	 
	SECTION 8.1.1 Non-Payment of Obligations
	 	 	79	 
	SECTION 8.1.2 Breach of Warranty
	 	 	79	 
	SECTION 8.1.3 Non-Performance of Certain Covenants and Obligations
	 	 	79	 
	SECTION 8.1.4 Non-Performance of Other Covenants and Obligations
	 	 	79	 
	SECTION 8.1.5 Default on Other Indebtedness
	 	 	79	 
	SECTION 8.1.6 Judgments
	 	 	80	 
	SECTION 8.1.7 Pension Plans
	 	 	80	 
	SECTION 8.1.8 Change in Control
	 	 	80	 
	SECTION 8.1.6 Bankruptcy, Insolvency, etc.
	 	 	80	 
	SECTION 8.1.10 Impairment of Security, etc.
	 	 	81	 
	SECTION 8.1.11 Failure of Subordination
	 	 	81	 
	SECTION 8.2 Action if Bankruptcy
	 	 	81	 
	SECTION 8.3 Action if Other Event of Default
	 	 	81	 
	SECTION 8.4 Effect of Cure
	 	 	82	 






iii









 






	 	 	 	 	 
	 	 	PAGE	 
	 
	 	 	 	 
	ARTICLE IX THE AGENTS
	 	 	82	 
	SECTION 9.1 Actions
	 	 	82	 
	SECTION 9.2 Funding Reliance, etc.
	 	 	83	 
	SECTION 9.2.1 Lenders
	 	 	83	 
	SECTION 9.2.2 Borrowers
	 	 	83	 
	SECTION 9.3 Exculpation
	 	 	83	 
	SECTION 9.4 Successor
	 	 	84	 
	SECTION 9.5 Loans by the Administrative Agent
	 	 	84	 
	SECTION 9.6 Credit Decisions
	 	 	85	 
	SECTION 9.7 Copies, etc.
	 	 	85	 
	SECTION 9.8 Reliance by Agents
	 	 	85	 
	SECTION 9.9 Defaults
	 	 	85	 
	SECTION 9.10
Appointment of Supplemental Agent, Sub-Agent; etc.
	 	 	86	 
	SECTION 9.11 Posting of Approved Electronic Communications
	 	 	86	 
	SECTION 9.12 Release of Liens
	 	 	88	 
	SECTION 9.13 New Intercreditor Agreement
	 	 	88	 
	SECTION 9.14 Withholding Tax
	 	 	88	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS PROVISIONS
	 	 	88	 
	SECTION 10.1 Waivers, Amendments, etc.
	 	 	89	 
	SECTION 10.2 Notices; Time
	 	 	90	 
	SECTION 10.3 Payment of Costs and Expenses
	 	 	90	 
	SECTION 10.4 Indemnification
	 	 	91	 
	SECTION 10.5 Survival
	 	 	92	 
	SECTION 10.6 Severability
	 	 	92	 
	SECTION 10.7 Headings
	 	 	92	 
	SECTION 10.8 Execution in Counterparts, Effectiveness, etc.
	 	 	92	 
	SECTION 10.9 Governing Law; Entire Agreement
	 	 	93	 
	SECTION 10.10 Successors and Assigns
	 	 	93	 
	SECTION 10.11 Sale and Transfer of Loans; Participations in Loans and Commitments
	 	 	93	 
	SECTION 10.12 Other Transactions
	 	 	96	 
	SECTION 10.13 Forum Selection and Consent to Jurisdiction
	 	 	96	 
	SECTION 10.14 Waiver of Jury Trial
	 	 	97	 
	SECTION 10.15 Judgment Currency
	 	 	97	 
	SECTION 10.16 Confidentiality
	 	 	98	 
	SECTION 10.17 Independence of Covenants and Default Provisions
	 	 	99	 
	SECTION 10.18 Counsel Representation
	 	 	99	 
	SECTION 10.19 No Immunity
	 	 	99	 
	SECTION 10.20 Patriot Act
	 	 	99	 
	SECTION 10.21 Joint and Several Obligations
	 	 	99	 






Exhibit A — Borrowing Request

Exhibit B — Closing Date Certificate

Exhibit C — Compliance Certificate

Exhibit D — Continuation/Conversion Notice

Exhibit E — Intercreditor Agreement




iv









 





Exhibit F — Lender Assignment Agreement

Exhibit G — Promissory Note

Exhibit H — Borrowers’ Counsel Opinion

Exhibit I — Other Counsel Opinion

Exhibit J — Solvency Certificate




Schedule I — Disclosure Schedule

Schedule II — Lender Percentages and Offices





v











 





CREDIT AGREEMENT




     THIS CREDIT AGREEMENT, dated as of March 30, 2007, is among ASHMORE ENERGY
INTERNATIONAL, an exempted company with limited liability incorporated in the Cayman
Islands (the “Cayman Borrower”), AEI FINANCE HOLDING LLC, a Delaware limited
liability company (the “U.S. Borrower” and, together with the Cayman Borrower,
each, a “Borrower” and, together, the “Borrowers”), the various financial
institutions and other Persons from time to time parties hereto (the “Lenders”),
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as administrative agent (in such capacity, the
“Administrative Agent”), JPMORGAN CHASE BANK, N.A. as collateral agent
(in such capacity, the “Collateal Agent”), CREDIT SUISSE SECURITIES
(USA) LLC and J.P. MORGAN SECURITIES, INC., as joint lead arrangers, joint bookrunners
and joint syndication agents (in such capacity, the “Joint Lead Arrangers”) and
CREDIT SUISSE SECURITIES (USA) LLC, as sole structuring and sole documentation agent (in
such capacity, the “Documentation Agent”).



WITNESSETH:




     WHEREAS, the Borrowers have requested that the Lenders make Term Loans to the
Borrowers in an aggregate principal amount not exceeding $1,000,000,000 and the Cayman
Borrower has requested that the Lenders extend Commitments to make Revolving Loans in an
aggregate principal amount not exceeding $395,000,000 and Synthetic Revolving Deposits in
an aggregate principal amount not exceeding $105,000,000; and



     WHEREAS, the Lenders are willing, on the terms and subject to the conditions
hereinafter set forth, to extend the Commitments and make Loans to the applicable
Borrower;



     NOW, THEREFORE, the parties hereto agree as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




     SECTION 1.1 Defined Terms. The following terms (whether or not underscored)
when used in this Agreement, including its preamble and recitals, shall, except where the
context otherwise requires, have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):



     “Administrative Agent” is defined in the preamble and includes each
other Person appointed as the successor Administrative Agent pursuant to Section
9.4.



     “Affected Lender” is defined in Section 4.10.



     “Affiliate” of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such Person.
“Control” of a Person means the power, directly or indirectly, (a) to vote 10% or more of
the Capital Securities (on a fully diluted basis) of such Person having ordinary voting
power for the election of directors, managing members or general partners (as applicable)
or (b) to direct or cause the direction of the management and policies of such Person
(whether by contract or otherwise); provided that none



 









 







of the “Purchasers” identified in the Note Purchase Agreement shall be “Affiliates” of
the Cayman Borrower or any of its Subsidiaries.



     “Agents” means the Administrative Agent and the Collateral Agent.



     “Agreement” means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended, supplemented,
amended and restated or otherwise modified from time to time and in effect on such date.



     “Alternate Base Rate” means, on any date and with respect to all Base Rate
Loans, a fluctuating rate of interest per annum (rounded upward, if necessary, to the
next highest 1/16 of 1%) equal to the higher of



     (a)   the Base Rate in effect on such day; and



     (b)   the
Federal Funds Rate in effect on such day plus
1⁄2 of 1%.


Changes in the rate of interest on that portion of any Loans maintained as Base Rate
Loans will take effect simultaneously with each change in the Alternate Base Rate. The
Administrative Agent will give notice promptly to the Borrowers and the Lenders of
changes in the Alternate Base Rate; provided, that the failure to give such
notice shall not affect the Alternate Base Rate in effect after such change.




     “Applicable Law” means all applicable laws, statutes, ordinances, codes,
rules, regulations, regulatory norms, administrative resolutions, orders and decrees of
a Governmental Authority.



     “Applicable Margin” means with respect to (a) all Loans maintained as Base
Rate Loans, 1.75% per annum and (b) all Loans maintained as LIBO Rate Loans, 3.00% per
annum.



     “Approved Bank” means any bank that has a credit rating of A3 or higher
from Moody’s or A- or higher from S&P.



     “Approved Fund” means any Person (other than a natural Person) that (a) is
or will be engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course, and (b) is administered
or managed by a Lender, an Affiliate of a Lender or a Person or an Affiliate of a Person
that administers or manages a Lender.



     “Ashmore” means Ashmore Investment Management Limited.



     “Assumption Agreement” is defined in Section
2.6(d)(ii).



     “Authorized Officer” means, relative to each Borrower and each Guarantor,
those of its officers, general partners or managing members (as applicable) whose
signatures and incumbency shall have been certified to the Administrative Agent and the
Lenders pursuant to Section 5.1.1(b) or pursuant to a certificate delivered to
the Administrative Agent and the Lenders after the Closing Date in form and substance
satisfactory to the Administrative Agent.



2









 





     “Base Rate” means, at any time, the rate of interest then most recently
established by the Administrative Agent in New York as its base rate for Dollars loaned
in the United States. The Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions of credit.



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



     “Base Return” means, in respect of the Synthetic Revolving Deposits for any
Investment Period, an amount equal to the sum of the product calculated for each day
during such Investment Period of (x) the aggregate amount of the Synthetic Revolving
Deposits as of such day less the principal amount of Synthetic Revolving Loans that have
not been reimbursed pursuant to Section 2.1.3(d)(i) as of such day multiplied by
(y) the difference of (i) the LIBO Rate (Reserved Adjusted) for such Investment Period if
such Synthetic Revolving Deposits were deemed to be a LIBO Rate Loan hereunder (exclusive
of any Applicable Margin that would otherwise be applicable thereto) minus (ii) an amount
equal to ten basis points per annum, in each case, computed on the basis of a year of 360
days and payable for the actual number of days elapsed occurring during such Investment
Period.



     “Borrowers” is defined in the preamble.



     “Borrowing Request” means a Loan request and certificate duly executed by an
Authorized Officer of the Cayman Borrower substantially in the form of Exhibit A
hereto.



     “Bridge Credit Agreement” means the Credit Agreement, dated as of May 23,
2006, among the Cayman Borrower, the Lenders referred to therein, ABN AMRO Bank N.V., as
Administrative Agent, and LaSalle Bank National Association, as Collateral Agent.



     “Business Day” means (a) any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be closed in New York, New
York or Luxembourg and (b) relative to the making, continuing, prepaying or repaying of
any LIBO Rate Loans, any day which is a Business Day described in clause (a)
above and which is also a day on which dealings in Dollars are carried on in the London
interbank eurodollar market.



     “Call Premium” is defined in Section 3.1.1(h).



     “Capital Expenditures” means, for any Person for any period, the aggregate
amount of (a) all expenditures of such Person and its Subsidiaries on a consolidated
basis for fixed or capital assets made during such period which, in accordance with GAAP,
would be classified as capital expenditures and (b) Capitalized Lease Liabilities
incurred by such Person and its Subsidiaries during such period. For purposes of this
definition, the purchase price of any plant, property or equipment that is purchased
with, or reimbursed by, the trade-in of existing plant, property or equipment, or with
insurance proceeds or condemnation proceeds, shall be reduced by the credit granted by
the seller of such property, plant or equipment being traded in at such time, or the
amount of such insurance proceeds or condemnation proceeds, as the case may be.



     “Capital Securities” means, with respect to any issuer, all shares,
interests, participations or other equivalents (however designated, whether voting or
non-voting) of such issuer’s capital,




3











 




whether now existing or issued after the date hereof, including common shares, preferred
shares, membership interests in a limited liability company, limited or general
partnership interests in a partnership or any other equivalent of such ownership
interest.




     “Capitalized Lease Liabilities” means, with respect to any Person, all
monetary obligations of such Person and its Subsidiaries under any leasing or similar
arrangement which have been (or, in accordance with GAAP, should be) classified as
capitalized leases, and for purposes of each Loan Document the amount of such obligations
shall be the capitalized amount thereof, determined in accordance with GAAP, and the
stated maturity thereof shall be the date of the last payment of rent or any other amount
due under such lease prior to the first date upon which such lease may be terminated by
the lessee without payment of a premium or a penalty.



     “Cash Collateralized” means, with respect to any letter of credit, the
deposit of immediately available funds maintained by the issuer of such letter of credit
(or its designated agent), in an amount equal to not less than 100% of the face amount of
such letter of credit.



     “Cash Equivalent Investment” means, at any time, any of the following
entered into in the ordinary course of business and not for speculative purposes:




     (a) any direct obligation of (or unconditionally guaranteed by) any of the
following:




     (i) the United States, a State thereof (or any agency or political
subdivision thereof, to the extent such obligations are supported by the
full faith and credit of the United States or a State thereof), maturing not
more than one year after such time,




     (ii) any member state of the European Union on the date hereof,
maturing not more than one year after such time, that is rated Aa2 or higher
by Moody’s or AA- or higher by S&P, or




     (iii) with respect to Cash Equivalent Investments made by any Person
whose principal place of business is not in the United States or such a
member state of the European Union, the government of the jurisdiction of
such Person’s principal place of business 732 days after such time;




     (b) commercial paper maturing not more than 270 days from the date of issue,
which is issued by (i) a Person (other than an Affiliate of the Cayman Borrower or
any of its Subsidiaries) organized under the laws of any State of the United States
or of the District of Columbia or of any member state of the European Union, and
rated Al or higher by S&P or P-l or higher by Moody’s, or (ii) any Lender (or its
holding company);




     (c) any certificate of deposit, time or demand deposits, bankers acceptance,
export notes or other obligations or undertakings, maturing not more than 732 days
after its date of issuance, which is issued or guaranteed by either:




     (i) any bank organized under the laws of the United States (or any
State thereof), or any member state of the European Union on the date
hereof, and



4









 







which has (A) a credit rating of A2 or higher from Moody’s or A or higher
from S&P and (B) a combined capital and surplus greater than $500,000,000,




     (ii) with respect to Cash Equivalent Investments made by any Person
whose principal place of business is in a jurisdiction other than the
United States or such a member state of the European Union, a bank
operating such other jurisdiction that either (A) has a long-term local
currency rating of A2 or higher from Moody’s, A or higher from S&P or A or
higher from Fitch, or (B) is ranked (by any applicable governmental
regulatory authority or by any reputable, non-governmental ranking
organization) as one of the top three banks in such jurisdiction (ranked by
total assets),




     (iii) any bank (or any class or type of bank), to the extent that any
Subsidiary of the Cayman Borrower is required by the terms of any of its
Indebtedness to maintain any deposits with such bank (or a bank of such
class or type), but only to the extent so required,




     (iv) any bank to the extent that any Subsidiary of the Cayman Borrower
maintains any deposits with such bank in the ordinary course of business, so
long as no such deposit is outstanding for longer than 14 days, or




     (v) any bank located in the jurisdiction of any business owned by the
Cayman Borrower so long as the aggregate outstanding amount of all
investments maintained at such bank pursuant to this clause (c)(v)
does not exceed $2,000,000 at any time;




     (d) any repurchase agreement having a term of 365 days or less entered into
with any Lender or any commercial banking institution satisfying the criteria set
forth in clause (c)(i) which (i) is secured by a fully perfected security
interest in any obligation of the type described in clause (a) and (ii) has
a market value at the time such repurchase agreement is entered into of not less
than 100% of the repurchase obligation of such commercial banking institution
thereunder;




     (e) shares of money market mutual funds or similar funds which invest
exclusively in assets of the type described in clauses (a) through (d)
(other than clauses (a)(iii), (c)(iii), (c)(iv) or (c)(v) above);




     (f) with respect to any Subsidiary of the Cayman Borrower that has received
financing on a project-finance basis and any other Subsidiary located in the same
jurisdiction as such project-finance Subsidiary, any investment with cash permitted
by terms of the loan documentation governing such project financing and which is
pledged to the lenders under such loan documentation; or




     (g) deposits with banks that have (A) a credit rating of A2 or higher from
Moody’s or A or higher from S&P or A or higher from Fitch or is ranked (by any
applicable governmental regulatory authority or by any reputable, non-governmental
ranking organization) as one of the top three banks in such jurisdiction (ranked by
total assets) and (B) a combined capital and surplus greater than $500,000,000,
which deposits



5









 







are made by Subsidiaries for purposes of servicing accounts payable and accounts
receivable.



     “Casualty Event” means the damage, destruction or condemnation, as the case
may be, of property of any Person or any of its Subsidiaries.



     “Cayman Borrower” is defined in the preamble.



     “Change in Control” means at any time, (i) any person or group (within the
meaning of Sections 13(d) and 14(d) under the Exchange Act), other than (a) the funds
managed by Ashmore and (b) each of the other shareholders of the Cayman Borrower as of
the date of this Agreement shall become the ultimate “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of Capital
Securities representing 50% or more of the Capital Securities of the Cayman Borrower on a
fully diluted basis, by means other than pursuant to or following an initial public
offering of the Capital Securities of the Cayman Borrower and (ii) the Cayman Borrower
shall cease to beneficially own and control 100% of the membership and other equity
ownership interests in the U.S. Borrower.



     “Closing Date” means the date on which each of the conditions precedent set
forth in Section 5.1 are satisfied or waived and the Term Loans and Synthetic
Revolving Deposits are made.



     “Closing Date Certificate” means the closing date certificate executed and
delivered by an Authorized Officer of the Borrowers, substantially in the form of
Exhibit B hereto.



     “Closing Date Projections” means the projections described in Item
6.5(b) of the Disclosure Schedule hereto.



     “Code” means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time to time.



     “Collateral Agent” is defined in the preamble.



     “Collateral Coverage Ratio” means, on any date, the ratio of (i) total
assets of the Cayman Borrower, less current liabilities (other than the current portion
of Stand-alone Senior Secured Debt) of the Cayman Borrower to (ii) Stand-alone Senior
Secured Debt.



     “Commitment” means, relative to any Lender, such Lender’s obligation (if
any) to make Loans and/or Synthetic Revolving Deposits pursuant to Section 2.1.



     “Commitment Increase” is defined in Section 2.6(a).



     “Commitment Termination Date” means the date on which any Commitment
Termination Event occurs. Upon such date, the Commitments shall terminate automatically
and without any further action.



     “Commitment Termination Event” means




6












 






     (a) the occurrence of any Event of Default with respect to either Borrower
described in Section 8.1.9; or




     (b) the occurrence and continuance of any other Event of Default and either




     (i) the declaration of all or any portion of the Loans to be due and
payable pursuant to Section 8.3, or




     (ii) the giving of notice by the Administrative Agent, acting at the
direction of the Required Lenders, to the Borrowers that the Commitments
have been terminated.



     “Communications” is defined in Section 9.11.



     “Compliance Certificate” means a certificate duly completed and executed by
an Authorized Officer of the Cayman Borrower, substantially in the form of Exhibit
C hereto, together with such changes thereto as the Administrative Agent may
reasonably request for the purpose of monitoring compliance with the financial covenants
contained herein.



     “Consolidated Debt” means, on any date, the outstanding principal amount of
all Indebtedness of the Cayman Borrower and its Subsidiaries (calculated on a
consolidated basis in accordance with GAAP) of the types referred to in clause
(a), clause (b), clause (c) and clause (g) of the definition
of “Indebtedness” (other than any Subordinated Debt) and any Contingent Liability in
respect of any of the foregoing.



     “Consolidated EBITDA” means, for any Person for any applicable period, the sum of:




     (a) such Person’s Consolidated Net Income, plus




     (b) to the extent deducted in determining such Person’s Consolidated Net
Income, the sum of (i) amounts attributable to amortization, (ii) income tax and
franchise tax expense (to the extent based on such Person’s income), (iii) such
Person’s Consolidated Interest Expense, (iv) depreciation, depletion, impairment
and abandonment of assets, and (v) minority interests,



     provided that the following shall be excluded from the calculation of
Consolidated EBITDA:




     (A) any gains and losses (whether cash or non-cash) on the sale of assets not
in the ordinary course of business,




     (B) other non-cash items (such other non-cash items to include realized or
unrealized non-cash currency exchange gain or loss),




     (C) any extraordinary or non-recurring item or expense (whether cash or non-cash), and



7









 






     (D) any non-cash payments made by the Cayman Borrower in respect of its
long-term incentive payment arrangements (including the Cayman Borrower’s sales
incentive plan and stock incentive plan, in each case, as in effect on the Closing
Date).



     “Consolidated Interest Expense” means, for any applicable period, the
aggregate accrued interest expense of the Cayman Borrower and its Subsidiaries
(calculated on a consolidated basis in accordance with GAAP) for such period, including
the portion of any payments made in respect of Capitalized Lease Liabilities allocable
to interest expense.



     “Consolidated Leverage Ratio” means, as of the last day of any period of
four consecutive Fiscal Quarters, the ratio of:




     (a) Consolidated Net Debt outstanding on the last day of such period, to




     (b) Consolidated EBITDA for such period (provided that, for the
purposes of calculating the Consolidated Leverage Ratio, Consolidated EBITDA for
the Fiscal Quarter ending March 31, 2006 shall be deemed to be $256,000,000,
Consolidated EBITDA for the Fiscal Quarter ending June 30, 2006 shall be deemed to
be $181,000,000 and Consolidated EBITDA for the fiscal quarter ending September 30,
2006 shall be deemed to be $187,000,000).



     “Consolidated Net Debt” means, on any date, Consolidated Debt less cash and
Cash Equivalent Investments held by the Cayman Borrower or its Subsidiaries, whether or
not restricted.



     “Consolidated Net Income” means, for any Person for any period, the
aggregate of all amounts which would be included as net income on the consolidated
financial statements of such Person and its Subsidiaries for such period (as determined
in accordance with GAAP).



     “Contingent Liability” means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently liable
upon (by direct or indirect agreement, contingent or otherwise (including by reason of
such Person being a general partner of another Person), to provide funds for payment, to
supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor
against loss) the Indebtedness of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of dividends or
other distributions upon the Capital Securities of any other Person. The amount of any
Person’s obligation under any Contingent Liability shall (subject to any limitation set
forth therein) be deemed to be the outstanding principal amount of the debt, obligation
or other liability guaranteed thereby.



     “Continuation/Conversion Notice” means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the applicable
Borrower, substantially in the form of Exhibit D hereto.



     “Controlled Group” means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Cayman Borrower, are treated
as a single employer under Section 414(b) or 414(c) of the Code or Section 4001 of
ERISA.



8









 





     “Cuiaba Intercompany Debt” means all outstanding amounts owing by (a) EPE
— Empresa Produtora de Energia Ltda. in respect of intercompany loans from Enron
Netherlands Holding B.V. (which loans were assigned to Enron Corp. and subsequently
assigned to the Cayman Borrower) and EPE Holding Ltd., (b) Gasocidente do Mato Grosso
Ltda. in respect of an intercompany loan from Enron Netherlands Holdings B.V. (which
loans were assigned to Enron Corp. and subsequently assigned to the Cayman Borrower) and
(c) Gas Oriente Boliviano Ltda. in respect of an intercompany loan from Prisma Energy
International Bolivia Holding Limited (which loans were assigned to Prisma Energy
Luxembourg S.à r.l. and subsequently assigned to Prisma Energy Spain, S.L.).



     “Cuiaba/Shell Intercompany Debt” means all outstanding amounts owing by (a)
EPE — Empresa Produtora de Energia Ltda. in respect of intercompany loans from Shell
International Investments Limited, (b) Gasocidente do Mato Grosso Ltda. in respect of an
intercompany loan from Shell Gas International Investments Limited and (c) Gas Oriente
Boliviano Ltda. in respect of an intercompany loan from Shell Gas Latin America B.V.



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



     “Disclosure Schedule” means the Disclosure Schedule attached hereto as Schedule
I.



     “Disposition” (or similar words such as “Dispose”) means, with
respect to any Person, any sale, transfer, lease, contribution or other conveyance
(including by way of merger) of, or the granting of options, warrants or other rights to,
any of such Person’s assets (including accounts receivable and Capital Securities of
Subsidiaries) to any other Person in a single transaction or series of transactions.



     “Documentation Agent” is defined in the preamble.



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



     “Domestic Office” means the office of a Lender designated as its “Domestic
Office” on Schedule II hereto or in a Lender Assignment Agreement, or such other
office within the United States as may be designated from time to time by notice from
such Lender to the Administrative Agent and the Borrowers.



     “Effective Date” means the date this Agreement becomes effective pursuant to
Section 10.8.



     “Entitled Person” is defined in Section 10.15.



     “Environmental Laws” means all applicable statutes, laws, ordinances, codes,
rules and regulations (including consent decrees and administrative orders) relating to
public health and safety (with respect to exposure to Hazardous Materials) and protection
of the environment.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto of similar import, together with the
regulations thereunder, in



9









 




each case as in effect from time to time. References to Sections of ERISA also refer
to any successor Sections thereto.




     “Event of Default” is defined in Section 8.1.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Excluded Subsidiary” means a Subsidiary that represents directly or through
direct or indirect ownership interest in any other Person less than 3.5% of the
Consolidated EBITDA of the Cayman Borrower and its Subsidiaries for the most recently
ended Fiscal Year.



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



     “Fee Letter” means, the confidential Fee Letter, dated January 31, 2007,
among the Cayman Borrower, Credit Suisse Securities (USA) LLC and J.P. Morgan
Securities, Inc.



     “Fiscal Quarter” means a quarter ending on the last day of March, June,
September or December.



     “Fiscal Year” means any period of twelve consecutive calendar months ending
on December 31; references to a Fiscal Year with a number corresponding to any calendar
year (e.g., the “2007 Fiscal Year”) refer to the Fiscal Year ending on December
31 of such calendar Year.



     “Fitch” means Fitch, Inc.



     “F.R.S. Board” means the Board of Governors of the Federal Reserve System
or any successor thereto.



     “GAAP” means generally accepted accounting principles in the United States from
time to time.



     “GAAP Change” is defined in Section 1.4(b).



     “Governmental Authority” means the government of the United States or any
other nation or any political subdivision of any thereof, whether provincial, state or
local, and any agency, authority, instrumentality, regulatory body, court, central bank
or other Person exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.



10









 





     “Guarantor” means each of (a) Prisma Energy Nicaragua Holdings Ltd., (b) AEI
Colombia Ltd., (c) Prisma Energy Colombia Holdings Ltd., (d) Prisma Energy CB Limited,
(e) Prisma Energy Luxembourg S.à r.l., (f) Prisma Energy Brazil Power Holdings Ltd., (g)
Prisma Energy Brazil PD Holdings Ltd., (h) ETB — Energia Total do Brasil Ltda., (i)
Prisma Energy Brazil Finance Ltd., (j) Ashmore Energy International Financing LLC, (k)
Ashmore Energy International LLC, (l) Prisma Energy Dominicana Holding Limited, (m)
Prisma Energy Dominican Republic Ltd., (n) Prisma Energy Dominican Republic Operations
Ltd., (o) Prisma Energy Guatemala Holdings Ltd. and (p) to the extent not prohibited by
applicable law or any contractual limitation applicable to it, each newly acquired or
formed Subsidiary (acquired or formed after the Closing Date) that is a top-tier holding
company Subsidiary of the Cayman Borrower holding (directly or indirectly) the Capital
Securities of any operating-level company of the Cayman Borrower.



     “Guaranty” means the (i) Guaranty by each Guarantor (other than ETB —
Energia Total do Brasil Ltda.) and (ii) Guaranty by ETB — Energia Total do Brasil Ltda.,
in each case, dated as of the date hereof, in favor of the Collateral Agent, for the
benefit of the Secured Parties.



     “Hazardous Material” means any pollutant or contaminant or hazardous,
dangerous or toxic chemical, waste, material or substance (including any petroleum
product) within the meaning of any applicable statute, law, regulation, code, rule,
ordinance or requirement (including consent decrees and administrative orders) of any
Governmental Authority relating to or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material, all as
amended.



     “Hedging Agreement” means, with respect to any Person, collectively, any
agreement that sets forth any Hedging Obligations of such Person or any of its
Subsidiaries that is entered into by such Person or any of its Subsidiaries and under
which the counterparty of such agreement is (or at the time such agreement was entered
into, was) a Lender or an Affiliate of a Lender.



     “Hedging Obligations” means, with respect to any Person, all liabilities of
such Person under currency exchange agreements, interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest rates,
currency exchange rates or commodity prices. For purposes of the definition of
“Indebtedness” in this Section 1.1, the net amount of any Hedging Obligations on any date
shall be the net amount payable (if any) by such Person on such date if such Hedging
Obligations were to be terminated or unwound on such date.



     “herein,” “hereof,” “hereto,” “hereunder” and similar terms
contained in any Loan Document refer to such Loan Document as a whole and not to any
particular Section, paragraph or provision of such Loan Document.



     “Immaterial Guarantor” means any Guarantor other than a Material Guarantor.



     “Impermissible Qualification” means any qualification or exception to the
opinion or certification of any independent public accountant as to any financial
statement




     (a) which is of a “going concern” or similar nature;



11









 






     (b) which relates to the limited scope of examination of matters relevant to
such financial statement; or




     (c) which relates to the treatment or classification of any item in such
financial statement and which, as a condition to its removal, would require an
adjustment to such item the effect of which would cause an Event of Default to
occur.



     “including” and “include” means including without limiting the
generality of any description preceding such term, and, for purposes of each Loan
Document, the parties hereto agree that the rule of ejusdem generis shall not be
applicable to limit a general statement, which is followed by or referable to an
enumeration of specific matters, to matters similar to the matters specifically
mentioned.



     “Increase Date” is defined in Section 2.6(a).




     “Indebtedness” of any Person means:




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




     (b) all obligations, contingent or otherwise, relative to the face amount of
all letters of credit, whether or not drawn, and banker’s acceptances issued for
the account of such Person (provided that, except for purposes of
Section 8.1.5, “Indebtedness” shall not include (x) any letter of credit
listed on Item 7.2.2 of the Disclosure Schedule, and any renewals or
replacements thereof to the extent not increasing the face amount thereof, and (y)
any additional letters of credit issued after the Closing Date, in an aggregate
face amount not to exceed $50,000,000, in the case of each of clauses (x)
and (y), to the extent that such letters of credit are Cash Collateralized);




     (c) all Capitalized Lease Liabilities of such Person other than power purchase
agreements and fuel supply and transportation agreements that are treated as such;




     (d) all obligations secured by any Lien expressly granted by such Person on
any property or assets owned or held by such Person regardless of whether the
obligations secured thereby shall have been assumed by such Person or is
nonrecourse to the credit of such Person; provided, that the amount of any
Indebtedness of others that constitutes Indebtedness of such Person solely by
reason of this clause shall, in the event that such Indebtedness is limited
recourse to such property (without recourse to such Person), for purposes of this
Agreement, be equal to the lesser of the amount of such obligation and the fair
market value of the property or assets to which the Lien attaches, determined in
good faith by such Person;




     (e) net Hedging Obligations of such Person;




     (f) whether or not so included as liabilities in accordance with GAAP, all
obligations of such Person to pay the deferred purchase price of property or
services (excluding trade accounts payable in the ordinary course of business which
are not overdue for a period of more than 90 days or, if overdue for more than 90
days, as to



12









 






which a dispute exists and adequate reserves in conformity with Local GAAP have
been established on the books of such Person);




     (g) obligations arising under Synthetic Leases; and




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



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



     “Indemnified Liabilities” is defined in Section 10.4.



     “Indemnified Parties” is defined in Section 10.4.



     “Intercreditor Agreement” means an Intercreditor Agreement among the
Administrative Agent, the Collateral Agent, the Borrowers and the other parties referred
to in Section 9.13, substantially in the form of Exhibit E, as the same
may be amended, supplemented, amended and restated or otherwise modified from time to
time.



     “Interest Period” means, relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or continued
as, or converted into, a LIBO Rate Loan pursuant to Sections 2.3 or 2.4 and shall
end on (but exclude) the day which numerically corresponds to such date one, two, three
or six months thereafter (or, if such month has no numerically corresponding day, on the
last Business Day of such month), or any period shorter than one month that is agreed to
by each of the Lenders, as the applicable Borrower may select in its relevant notice
pursuant to Sections 2.3 or 2.4; provided, however, that




     (a) the Borrowers shall not be permitted to select Interest Periods to be in
effect at any one time which have expiration dates occurring on more than five
different dates;




     (b) if such Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next following Business Day
(unless such next following Business Day is the first Business Day of a calendar
month, in which case such Interest Period shall end on the Business Day next
preceding such numerically corresponding day); and




     (c) no Interest Period for any Loan may end later than the Stated Maturity
Date for such Loan.



     “Investment” means, relative to any Person,




     (a) any loan, advance or extension of credit made by such Person to any other
Person, including the purchase by such Person of any bonds, notes, debentures or
other debt securities of any other Person; and



13









 






     (b) any Capital Securities held by such Person in any other Person.


The amount of any Investment shall be the original principal or capital amount thereof
less all returns of principal or equity thereon and shall, if made by the transfer or
exchange of property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair market value of such property at the time
of such Investment.




     “Investment Period” means, relative to any Synthetic Revolving Deposits
earning a Participation Fee, the period (a) beginning on (and including) the later of (i)
the date on which such Synthetic Revolving Deposit is made and (ii) the last day of the
immediately preceding Investment Period and (b) ending on (but excluding) the day which
numerically corresponds to such date three months thereafter; provided,
however, that (x) if any such Investment Period would otherwise end on a day
which is not a Business Day, such Investment Period shall end on the preceding Business
Day and (y) the first Investment Period after the Effective Date shall comprise the
period beginning on (and including) the Effective Date and ending on June 30, 2007.



     “Joint Lead Arrangers” is defined in the preamble.



     “judgment currency” is defined in Section 10.15.



     “Lender Assignment Agreement” means an assignment agreement substantially
in the form of Exhibit F hereto.



     “Lenders” is defined in the preamble.



     “Lender’s Environmental Liability” means any and all losses, liabilities,
obligations, penalties, claims, litigation, demands, defenses, costs, judgments, suits,
proceedings, damages (including punitive or consequential damages), disbursements or
expenses of any kind or nature whatsoever (including reasonable attorneys’ fees and
experts’ fees and disbursements and expenses incurred in investigating, defending against
or prosecuting any investigation, litigation, claim or proceeding) which may at any time
be imposed upon, incurred by or asserted or awarded against the Administrative Agent, the
Collateral Agent, any Lender or any of such Person’s Affiliates, shareholders, directors,
officers, employees, and agents in connection with or arising from:




     (a) any Hazardous Material on, in, under or affecting all or any portion of
any property of the Cayman Borrower or any of its Subsidiaries, the groundwater
thereunder, or any surrounding areas thereof or, to the extent caused by releases
from such Borrower’s or any of its Subsidiaries’, any of their respective
predecessors’ properties;




     (b) any investigation, claim, litigation or proceeding related to personal
injury arising from exposure or alleged exposure to Hazardous Materials handled by
the Cayman Borrower or any of its Subsidiaries;




     (c) any misrepresentation, inaccuracy or breach of any warranty, contained or
referred to in Section 6.12;



14









 






     (d) any violation or claim of violation by the Cayman Borrower or any of its
Subsidiaries of any Environmental Laws; or




     (e) the imposition of any Lien for damages caused by or the recovery of any
costs for the cleanup, release or threatened release of Hazardous Material by the
Cayman Borrower or any of its Subsidiaries, or in connection with any property owned
or formerly owned by the Cayman Borrower or any of its Subsidiaries.



     “LIBO Rate” means, with respect to any LIBO Rate Loan for any Interest
Period, the rate per annum determined by the Administrative Agent at approximately 11:00
a.m. (London time) on the date that is two Business Days prior to the beginning of the
relevant Interest Period by reference to the British Bankers’ Association Interest
Settlement Rates for deposits in Dollars (as set forth by the Bloomberg Information
Service or any successor thereto or any other service selected by the Administrative
Agent which has been nominated by the British Bankers’ Association as an authorized
information vendor for the purpose of displaying such rates) for a period equal to such
Interest Period; provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate”
shall be the interest rate per annum determined by the Administrative Agent to be the
average of the rates per annum at which deposits in Dollars are offered for such relevant
Interest Period to major banks in the London interbank market in London, England by the
Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two
Business Days prior to the beginning of such Interest Period.



     “LIBO Rate Loan” means, with respect to any Loan to be made, continued or
maintained as, or converted into, a LIBO Rate Loan for any Interest Period, a Loan
bearing interest, at all times during an Interest Period applicable to such Loan, at a
rate of interest determined by reference to the LIBO Rate (Reserve Adjusted).



     “LIBO Rate (Reserve Adjusted)” means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest Period,
a rate per annum determined pursuant to the following formula:



	 	 	 	 	 
	LIBO Rate

	 	=
	 	LIBO Rate

 

	 
	 	 	 	 
	(Reserve Adjusted)

	 	 	 	1.00 - LIBOR Reserve Percentage





The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans will be
determined by the Administrative Agent on the basis of the LIBOR Reserve Percentage in
effect two Business Days before the first day of such Interest Period.




     “LIBOR Office” means the office of a Lender designated as its “LIBOR Office”
on Schedule II hereto or in a Lender Assignment Agreement, or such other office
designated from time to time by notice from such Lender to the Borrowers and the
Administrative Agent, whether or not outside the United States, which shall be making or
maintaining the LIBO Rate Loans of such Lender.



     “LIBOR Reserve Percentage” means, relative to any Interest Period for LIBO
Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve



15









 




requirements (including all basic, emergency, supplemental, marginal and other reserves
and taking into account any transitional adjustments or other scheduled changes in
reserve requirements) specified under regulations issued from time to time by the F.R.S.
Board and then applicable to assets or liabilities consisting of or including
“Eurocurrency Liabilities,” as currently defined in Regulation D of the F.R.S. Board,
having a term approximately equal or comparable to such Interest Period.




     “Lien” means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge
against or interest in property, or other priority or preferential arrangement of any
kind or nature whatsoever, (and, with respect to any Capital Securities, any
subscriptions, options, warrants, or calls relating to any shares of such Capital
Securities, including any right of conversion or exchange under any outstanding security
or other instrument) to secure payment of a debt or performance of an obligation.



     “Loan” means the Term Loans, the Revolving Loans and the Synthetic Revolving Loans.



     “Loan Documents” means, collectively, this Agreement, the Notes, each
Hedging Agreement, the Fee Letter, the Security Agreements, each Guaranty, any
Intercreditor Agreement (when executed), each agreement pursuant to which the Collateral
Agent is granted a Lien to secure the Obligations and each other agreement, certificate,
document or instrument to which either Borrower or any Guarantor is a party required to
be delivered in connection with any Loan Document, and each other agreement or document
to which either Borrower or any Guarantor is a party that amends, modifies or otherwise
waives any provision of any other Loan Document.



     “Local GAAP” means, (a) in the context of the Borrowers, GAAP, and (b) in
the context of a Subsidiary of the Cayman Borrower incorporated or organized under the
laws of a particular jurisdiction, generally accepted accounting principles in such
jurisdiction from time to time.



     “Material Adverse Effect” means any of the following:




     (a) a material adverse effect on the rights and remedies of any Secured Party
under any Loan Document to which either Borrower or any Guarantor is a party,




     (b) a material adverse effect on the ability of either Borrower or any
Guarantor to perform its Obligations under any Loan Document,




     (c) a material adverse effect on the business, assets, liabilities,
operations, condition (financial or otherwise), operating results or prospects of
the Cayman Borrower and its Subsidiaries (taken as a whole), or




     (d) a change in regulatory status of the Cayman Borrower or any of its
Subsidiaries, or the regulatory environment in which any of them operates that has
a material adverse effect on the Cayman Borrower or its Subsidiaries (taken as a
whole),


but in any event, excluding any such effect generally applicable to participants in the
industry in which the Cayman Borrower and its Subsidiaries operate (other than those
that affect the




16









 




Cayman Borrower and its Subsidiaries in a disproportionate manner as compared to other
companies in similar businesses).




     “Material Guarantor” means each Guarantor that is not an Excluded Subsidiary.



     “Minority Interest Portion” means, in respect of any amount received by any
Person, the portion of such amount which such Person is contractually or legally
obligated to pay, transfer or distribute to a third party equity holder of such Person
that is not a direct or indirect Subsidiary of the Cayman Borrower, and all taxes
actually paid or withheld by such Person or estimated by such Person to be payable in
cash or withheld in connection with such portion.



     “Modifications” is defined in Section 7.2.12.



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



     “Net Casualty Proceeds” means, with respect to any Casualty Event, the
amount of any insurance proceeds (other than proceeds of business interruption insurance
or similar insurance) or condemnation awards received by the Cayman Borrower or any of
its Subsidiaries in connection with such Casualty Event in excess of $5,000,000 over the
course of a Fiscal Year (net of all reasonable and customary collection expenses
thereof), but excluding (i) any proceeds or awards applied to repair or reinstate the
assets affected by such Casualty Event (or to make a reimbursements in respect thereof),
(ii) any proceeds or awards required to be paid to a creditor (other than the Lenders)
which holds a Lien permitted by Section 7.2.3(c) on the property which is the
subject of such Casualty Event, (iii) all taxes actually paid or estimated by the Cayman
Borrower (or the applicable Subsidiary) to be payable in cash within the next 21 months
in connection with such proceeds or awards, (iv) payments made by the Cayman Borrower or
any of its Subsidiaries to retire (or amounts required to be held as collateral for)
Indebtedness (other than the Loans and any other Indebtedness of the Cayman Borrower)
where payment of such Indebtedness is required in connection with such Casualty Event
proceeds or awards, and (v) the Minority Interest Portion of any proceeds or awards
received; provided, however, that if the amount of any estimated taxes
pursuant to clause (iii) or clause (iv) exceeds the amount of taxes
actually required to be paid in cash in respect of such Casualty Event proceeds or
awards, the aggregate amount of such excess shall constitute Net Casualty Proceeds.



     “Net Debt Proceeds” means, with respect to the incurrence, sale or issuance
by the Cayman Borrower or any of its Subsidiaries of any Indebtedness after the Closing
Date (other than Indebtedness permitted by Section 7.2.2(c), (d), (e), (f), (g),
(i), (j), (k), (1) and (m)), the excess of:




     (a) the gross cash proceeds received by such Person from such incurrence, sale
or issuance in excess of $25,000,000 in the aggregate over the course of a Fiscal
Year, less




     (b) the sum of (i) all reasonable and customary arranging or underwriting
commissions and legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and other reasonable and
customary closing costs and expenses actually incurred in connection with such
incurrence, sale or issuance which have not been paid to Affiliates of the Cayman



17









 






Borrower or any of its Subsidiaries in connection therewith, (ii) all taxes
actually paid or estimated by the Cayman Borrower (or the applicable Subsidiary)
to be payable in cash within the next 21 months in connection with such
incurrence, sale or issuance and (iii) the Minority Interest Portion (if any) of
any proceeds received.



     “Net Disposition Proceeds” means the gross cash proceeds received by the
Cayman Borrower or any of its Subsidiaries from any Disposition (other than a Disposition
pursuant to Section 7.2.1 l(d), Section 7.2.11(e), Section 7.2.1
l(g) and Section 7.2.1 l(h)) and any cash payment received in respect of
promissory notes or other non-cash consideration delivered to the Cayman Borrower or any
of its Subsidiaries in respect thereof in excess of $25,000,000 in the aggregate over the
course of a Fiscal Year, less the sum of (i) all reasonable and customary legal,
investment banking, brokerage and accounting fees and expenses incurred in connection
with such Disposition, (ii) all taxes actually paid or estimated by the Cayman Borrower
to be payable in cash within the next 21 months in connection with such Disposition,
(iii) payments made by the Cayman Borrower or any of its Subsidiaries to retire
Indebtedness (other than the Loans and any other Indebtedness of the Cayman Borrower)
where payment of such Indebtedness is required in connection with such Disposition, and
(iv) the Minority Interest Portion (if any) of any proceeds or awards received;
provided, however, that if the amount of any estimated taxes pursuant to
clause (ii) or clause (iv) exceeds the amount of taxes actually required
to be paid in cash in respect of such Disposition, the aggregate amount of such excess
shall constitute Net Disposition Proceeds.



     “Net Equity Proceeds” means with respect to the sale or issuance after the
Closing Date by the Cayman Borrower or any of its Subsidiaries to any Person of its
Capital Securities, warrants or options or the exercise of any such warrants or options,
the sum of the following:




     (a) the gross cash proceeds received by the Cayman Borrower or any of its
Subsidiaries from such sale, exercise or issuance in excess of $25,000,000 in the
aggregate over the course of a Fiscal Year (which $25,000,000 threshold shall not
apply for purposes of the definition of New Equity), less




     (b) the sum of (i) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage and accounting and other professional fees,
sales commissions and disbursements actually incurred in connection with such sale
or issuance which have not been paid to Affiliates of the Cayman Borrower or any of
its Subsidiaries in connection therewith, (ii) all taxes actually paid or estimated
by the Cayman Borrower (or the applicable Subsidiary) to be payable in cash within
the next 21 months in connection with such sale or issuance and (iii) the Minority
Interest Portion (if any) of any proceeds received;


provided, the following shall not constitute Net Equity Proceeds (except for purposes of
the definition of New Equity) (i) the proceeds from any issuance of director’s
qualifying shares, (ii) the proceeds from any issuance of Capital Securities to
management or employees of the Cayman Borrower under any employee stock option or stock
purchase plan or employee benefit plan in existence from time to time, (iii) the
proceeds from an underwritten initial public offering occurring prior to the second
anniversary of the Closing Date of the common equity of the Cayman Borrower, which
offering has been registered or qualified for sale in either the United











18









 




States or the United Kingdom and proceeds in an aggregate amount not to exceed
$400,000,000 from private issuances of equity of the Cayman Borrower prior to such
initial public offering and (iv) proceeds received by a Subsidiary of the Cayman Borrower
(the “Issuing Subsidiary”) that are not distributed to the Cayman Borrower or any
other Subsidiary of the Cayman Borrower other than a Subsidiary that owns or is owned,
directly or indirectly, by such Issuing Subsidiary.




     “New Equity” means, at any time, the sum of the following:




     (a) the aggregate Net Equity Proceeds from the sale or issuance of Capital
Securities of the Cayman Borrower received by the Cayman Borrower in cash after the
Closing Date, and




     (b) the aggregate proceeds of Subordinated Debt that are received by the
Cayman Borrower in cash after the Closing Date.



     “Non-Excluded Taxes” means any Taxes other than net income and franchise
Taxes imposed with respect to any Secured Party by any Governmental Authority under the
laws of which such Secured Party is organized or in which it maintains its principal
executive office, applicable lending office, or where such Secured Party is subject to
tax on a net income basis for a reason other than being a party to this Agreement
(including the execution and delivery of this Agreement and/or performance of its
obligations, receipt of payments and/or enforcement of rights under this Agreement).



     “Note” means a promissory note of the applicable Borrower payable to any
Lender, in the form of Exhibit G hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness
of such Borrower to such Lender resulting from outstanding Loans or Synthetic Revolving
Deposits, and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.



     “Note Purchase Agreement” means that certain Note Purchase Agreement among
the Cayman Borrower and the purchasers identified therein, dated as of September 6, 2006.



     “Obligations” means all obligations (monetary or otherwise, whether absolute
or contingent, matured or unmatured) of the Borrowers arising under or in connection with
a Loan Document and the principal of and premium, if any, and interest (including
interest accruing during the pendency of any proceeding of the type described in
Section 8.1.9, whether or not allowed in such proceeding) on the Loans.



     “Organic Document” means, relative to the Cayman Borrower or any of its
Subsidiaries, as applicable, its certificate of incorporation, by-laws, memorandum and
articles of association, certificate of partnership, partnership agreement, certificate
of formation and/or incorporation, limited liability agreement, operating agreement and
all shareholder agreements, voting trusts and similar arrangements applicable to the
Cayman Borrower or such Subsidiary’s Capital Securities.



     “Other Taxes” means any and all stamp, documentary or similar Taxes, or any
other excise or property Taxes or similar levies that arise on account of any payment
made or required




19









 




to be made under any Loan Document or from the execution, delivery, registration,
recording or enforcement of any Loan Document.




     “Participant”
is defined in Section 10.11(e).



     “Participation
Fees” is defined in Section 3.2.1(b).



     “Patriot Act” means the USA PATRIOT Act (Title III of Pub.L. 107-56 (signed
into law October 26, 2001)), as amended and supplemented from time to time.



     “Patriot Act Disclosures” means all documentation and other information
that the Administrative Agent or any Lender reasonably requests to comply with its
ongoing obligations under applicable “know your customer” and anti-money laundering
rules and regulations, including the Patriot Act.



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



     “PEC” means a Preferred Equity Certificate issued by a Subsidiary of the
Cayman Borrower organized under the laws of Luxembourg.



     “Pension Plan” means a “pension plan”, as such term is defined in Section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer plan as
defined in Section 4001(a)(3) of ERISA), and to which the Cayman Borrower or any of its
Subsidiaries or any corporation, trade or business that is, along with the Cayman
Borrower or any of its Subsidiaries, a member of a Controlled Group, may have liability,
including any liability by reason of having been a substantial employer within the
meaning of Section 4063 of ERISA at any time during the preceding five years, or by
reason of being deemed to be a contributing sponsor under
Section 4069 of ERISA.



     “Percentage” means, relative to any Lender, the applicable percentage
relating to Term Loans, Revolving Loans and/or Synthetic Revolving Deposits set forth
opposite its name on Schedule II hereto under the “Pro Rata Share” column or set
forth in a Lender Assignment Agreement under the heading “Assigned Interest”, as such
percentage may be adjusted from time to time pursuant to Lender Assignment Agreements
executed by such Lender and its Assignee Lender and delivered pursuant to Section
10.11.



     “Permitted Acquisition” means an acquisition (whether pursuant to an
acquisition of Capital Securities, Indebtedness, assets or otherwise) of a business or
other Investment in which the following conditions are satisfied:




     (a) such business is of a nature that the Borrowers will be in compliance with
the covenant set forth in Section 7.2.1 after giving effect to such
acquisition; and




     (b) the Borrowers shall have furnished notice to the Administrative Agent of
such acquisition as soon as practicable after the date information concerning such
acquisition is publicly announced and certification that after giving effect to
such acquisition and any Indebtedness incurred in connection therewith, the
Borrowers will be




20









 






in compliance with the covenants set forth in Section 7.2.4, calculated to
give pro forma effect to such acquisition and any Indebtedness incurred in
connection therewith.



     “Permitted Asian Acquisition Indebtedness” means Indebtedness to be incurred
by the Cayman Borrower or one of its Subsidiaries in an aggregate principal amount not to
exceed $70,000,000 the proceeds of which are to be used to finance the acquisition of
interests in certain Asian operations as contemplated as of the Closing Date.



     “Permitted Liens” is defined in Section 7.2.3.



     “Person” means any natural person, corporation, limited liability company,
partnership, joint venture, association, trust or unincorporated organization,
Governmental Authority or any other legal entity, whether acting in an individual,
fiduciary or other capacity.



     “Platform”
is defined in Section 9.11(b).



     “Process Agent” is defined in Section 10.13.



     “Promigas” means Promigas S.A. E.S.P., a Colombian company



     “Qualified New Subsidiary” is defined in Section 7.2.2(f).



     “Quarterly Payment Date” means the last Business Day of March, June,
September and December of each year.



     “Rating Agencies” means S&P and Moody’s.



     “Reasonable Efforts” means the reasonable best efforts that a prudent party
would use in similar circumstances in an effort to achieve a desired result reasonably
expeditiously, including (i) the lawful exercise of voting rights or other rights
attached to or arising in connection with Capital Securities held by such party, and (ii)
the lawful exercise of rights granted to any party under any contract (including
shareholders agreements or similar agreements); provided that, Reasonable Efforts shall
not require (x) the violation or potential violation of any law, rule or regulation, or
the breach of, or failure to discharge, any contractual, fiduciary or tortious duty, (y)
the taking of any action that would be materially and commercially adverse to such party,
or (z) the payment or provision of any payment to any third party that is commercially
unreasonable (the determination of whether any such payment is commercially unreasonable
to be made in the context of all relevant considerations, including the following: (1)
the circumstances in which such payment would be made, (2) the particular party that
would make such payment, (3) the role that the Person to which such payment would be made
has in achieving such desired result (for example, whether such Person is a creditor of
the party, or a holder of equity interests in an entity in which the party also holds
equity interests), and (4) the identity of the Person to which such payment would be
made).



     “Register”
is defined in Section 2.5(a).



     “Reinvestment
Date” is defined in Section 3.1.1(c)(ii).




21












 





     “Replacement Lender” is defined in Section 4.10.



     “Replacement Notice” is defined in Section 4.10.



     “Required Lenders” means, at any time, Lenders holding more than 50% of the
outstanding principal amount of the Loans, the Commitments and the Synthetic Revolving
Facility Available Amount.



     “Resource Conservation and Recovery Act” means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended.



     “Restricted Payment” means (a) the declaration or payment of any dividend
(other than dividends payable solely in Capital Securities of the Cayman Borrower) on, or
the making of any payment or distribution on account of, or setting apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of any class of Capital Securities of the Cayman Borrower or any of its
Subsidiaries or any warrants or options to purchase any such Capital Securities, whether
now or hereafter outstanding, or the making of any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or obligations and (b) the
making of any deposit (including the payment of amounts into a sinking fund or other
similar fund) for any of the foregoing purposes.



     “Revolving Loan” is defined in Section 2.1.2.



     “Revolving Loan Commitment Amount” means $395,000,000, as such amount may
be reduced or increased from time to time in accordance with the terms hereof.



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



     “SEC” means the Securities and Exchange Commission.



     “Secured Parties” means, collectively, the Lenders, the Administrative
Agent, the Collateral Agent, the Documentation Agent, each Joint Lead Arranger, each
counterparty to a Hedging Agreement that is (or at the time such Hedging Agreement was
entered into, was) a Lender or an Affiliate thereof and, in each case, each of their
respective successors, transferees and assigns.



     “Security Agreements” means, collectively, (a) each of the agreements and
documents described in Item 5.1.4 of the Disclosure Schedule and, (b)
each of the agreements and documents required to be delivered pursuant to Section
7.1.8, in each case as modified and supplemented and in effect from time to time.



     “Senior Credit Agreement” means the Credit Agreement, dated as of May 23,
2006, among the Cayman Borrower, the Lenders referred to therein, ABN AMRO Bank N.V., as
Administrative Agent, and LaSalle Bank National Association, as Collateral Agent.



     “Solvent” means, with respect to any Person (that is organized and/or
incorporated under the laws of any particular jurisdiction) on a particular date, that
such Person is not, under the



22









 




applicable insolvency or bankruptcy law of such jurisdiction, “insolvent” (or such other
analogous term or terms as may be used in such insolvency or bankruptcy laws) as of such
date under such insolvency or bankruptcy laws, which,





     (a) in the case of any Person organized under the laws of any State of the
United States, means that such Person is “insolvent” as that term is used in §101
of the United States, Bankruptcy Code, and




     (b) in the case of any Person incorporated under the laws of the Cayman
Islands, means that:




     (i) such Person (A) shall have ceased, or threatened to cease, to carry
on its business, (B) shall have stopped payment, or threatened to stop
payment, of its debts, (C) shall be deemed to be unable to pay its debts
pursuant to section 95 of the Cayman Islands Companies Law (2004 Revision),
or (D) shall be unable to pay its debts as they fall due;




     (ii) the value of such Person’s assets shall be less than the amount of
its liabilities (taking into account, for these purposes, the expected value
of contingent and prospective liabilities);




     (iii) such Person shall resolve to be voluntarily wound up;




     (iv) a court of competent jurisdiction shall grant a petition against
such Person for its winding up; or




     (v) any creditor of such Person shall successfully enforce any material
collateral security or levy any distress in respect of a material portion of
such Person’s assets.



     “Specified Changes” is defined in Section 1.4.



     “Stand-alone Historic Interest Expense” means, for any period, the
Borrowers’ aggregate accrued interest expense for such period, including the portion of
any payments made in respect of Capitalized Lease Liabilities allocable to interest
expense, but excluding any accrued interest expense in respect of the Cayman Borrower’s
Subordinated Debt (to the extent interest expense in respect thereof is paid in kind
pursuant to the terms of such Subordinated Debt or is paid in cash in such period in
amounts not in excess of a rate per annum equal to 8%) and any fees (whether
characterized as interest or not) paid in 2006 with respect to the Senior Credit
Agreement and the Bridge Credit Agreement.



     “Stand-alone Interest Coverage Ratio” means, as of the last day of any
period of four consecutive Fiscal Quarters, the ratio of:




     (a)
Stand-alone Operating Cash Flow, to




     (b) Stand-alone Historic Interest Expense for such period.



23









 





     “Stand-alone Operating Cash Flow” means, for any period, (A) the sum of the
following amounts (determined without duplication), but only to the extent received in
cash by the Cayman Borrower from a Person during such period: (i) dividends paid to the
Cayman Borrower by its Subsidiaries during such period (other than dividends paid in
respect of loans made to the Cayman Borrower for which credit was received in any prior
period in accordance with clause (vi) below); (ii) consulting and management fees
paid to the Cayman Borrower for such period; (iii) tax sharing payments made to the
Cayman Borrower during such period; (iv) interest and other distributions paid during
such period with respect to cash and Cash Equivalent Investments of the Cayman Borrower;
(v) other cash payments made to the Cayman Borrower by its Subsidiaries other than
payments in an amount equal to the aggregate amount released from debt service reserve
accounts upon the issuance of letters of credit for the account of the Cayman Borrower
and the benefit of the beneficiaries of such accounts; and (vi) loans made to the Cayman
Borrower from Subsidiaries in anticipation of the payment of dividends and in respect of
which funds for the payment of such dividends have been set aside for such period, less
(B) the sum of the following expenses (determined without duplication), in each case to
the extent paid by the Cayman Borrower during such period and regardless of whether any
such amount was accrued during such period: (i) income tax expenses of the Cayman
Borrower and its Subsidiaries and (ii) corporate overhead
expense (provided that
Stand-alone Operating Cash Flow for the Fiscal Quarter ending March 31, 2006 shall be
deemed to be $4,000,000, Stand-alone Operating Cash Flow for the Fiscal Quarter ending
June 30, 2006 shall be deemed to be $295,000,000 and Stand-alone Operating Cash Flow for
the Fiscal Quarter ending September 30, 2006 shall be deemed to be $59,000,000).



     “Stand-alone Senior Secured Debt” means, on any date, the outstanding
principal amount of all Indebtedness of the Borrowers of the types referred to in
clause (a), clause (b), clause (c) and clause (g) of the
definition of “Indebtedness” (other than any Subordinated Debt) and any Contingent
Liability in respect of any of the foregoing, which is secured by any of the assets of
the Cayman Borrower or its Subsidiaries other than Indebtedness to the extent secured by
cash collateral.



     “Stated Maturity Date” means (a) with respect to the Term Loans, March 30,
2014 and (b) with respect to the Revolving Loans, Synthetic Revolving Deposits and
Synthetic Revolving Loans, March 30, 2012.



     “Subic” means Subic Power Corp., a Philippines company.



     “Subordinated Debt” means Indebtedness of the Cayman Borrower or its
Subsidiaries (a) that is unsecured and subordinate to the Obligations, (b) the holders of
which Indebtedness have no right to exercise any remedies against the Cayman Borrower or
the collateral securing the Obligations until all Obligations are paid in full in cash
and (c) the holders of which Indebtedness may not oppose or contest any exercise of
remedies by the Collateral Agent or Lenders in respect of the collateral securing the
Obligations. For the avoidance of doubt, the Indebtedness under the Note Purchase
Agreement shall constitute Subordinated Debt.



     “Subordination
Provisions” is defined in Section 8.1.11.




24












 





     “Subsidiary” means, with respect to any Person, any other Person of which
more than 50% of the outstanding Voting Securities of such other Person (irrespective of
whether at the time Capital Securities of any other class or classes of such other Person
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
other Subsidiaries of such Person, or by one or more other Subsidiaries of such Person,
provided that




     (a) each Excluded Subsidiary shall be deemed not to be a Subsidiary of either
Borrower; and




     (b)
for purposes of Sections 7.2.2, 7.2.3,
7.2.5,
7.2.6, 7.2.8, 7.2.9, 7.2.10,
7.2.11,
7.2.12, 7.2.13, 7.2.14 and 7.2.15, Promigas and its
Subsidiaries shall be deemed not to be a Subsidiary at all times during which
Promigas’s senior long-term unsecured debt has a local credit rating of A+ or
higher by Duff & Phelps de Colombia (or its successor), or an equivalent rating
from Moody’s or S&P; provided, however, that, for purposes of the
foregoing provisions of Section 7.2, if Promigas becomes a Subsidiary after
the Closing Date, Promigas shall be deemed to have become a Subsidiary as a result
of a Permitted Acquisition.



     “Supplemental Agent” is defined in Section 9.10(a).



     “Synthetic Lease” means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time) of any property (whether real,
personal or mixed) (a) that is not a capital lease in accordance with GAAP and (b) in
respect of which the lessee retains or obtains ownership of the property so leased for
federal income tax purposes, other than any such lease under which that Person is the
lessor.



     “Synthetic Revolving Deposit” is defined in Section 2.1.3(c).



     “Synthetic Revolving Deposit Account” means the account established by the
Administrative Agent or an Affiliate thereof at Credit Suisse, Cayman Islands Branch
with the title “Ashmore Energy International Synthetic Revolving Deposit Account”
pursuant to Section 2.1.3(b).



     “Synthetic Revolving Deposit Percentage” means, with respect to any Lender
as of any date, the aggregate amount of such Lender’s Synthetic Revolving Deposit as of
such date expressed as a percentage of the aggregate amount of Synthetic Revolving
Deposits of all Lenders as of such date. The initial Synthetic Revolving Deposit
Percentage of each Lender is set forth opposite its name on Schedule II hereto
under the “Pro Rata Share” column.



     “Synthetic Revolving Deposit Return” is defined in Section
2.1.3(e).



     “Synthetic Revolving Deposit Sub-Account” is
defined in Section 2.1.3(b).



     “Synthetic Revolving Facility Available Amount” means, as of any date, the
Synthetic Revolving Loan Commitment Amount as of such date, minus the principal
amount of any then-outstanding Synthetic Revolving Loans.



25









 






     “Synthetic Revolving Loan” is defined in Section 2.1.3(a).



     “Synthetic Revolving Loan Commitment Amount” means $105,000,0000, as such
amount may be reduced from time to time in accordance with the terms hereof.



     “Taxes” means all income, stamp or other taxes, duties, levies, imposts,
charges, assessments, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, and all interest,
penalties or similar liabilities with respect thereto.



     “Term Loan” is defined in Section 2.1.1.



     “Term Loan Commitment Amount” means $1,000,000,000.



     “Termination Date” means the date on which all Obligations have been paid
in full in cash, all Commitments have been terminated, and all Lenders have been
refunded the full amount of their respective Synthetic Revolving Deposits.



     “Trakya” means Trakya Elektrik Uretim ve Ticaret A.S., a Turkish joint stock company.



     “type” means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.



     “United States” or “U.S.” means the United States of America, its
fifty states and the District of Columbia.



     “U.S. Borrower” is defined in the preamble.



     “Voting Securities” means, with respect to any Person, Capital Securities
of any class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.



     “Welfare Plan” means a “welfare plan” that is subject to (and as defined
in) Section 3(1) of ERISA.



     “wholly owned Subsidiary” means, with respect to any Person, any Subsidiary
all of the outstanding Capital Securities of which (other than any director’s qualifying
shares or investments by foreign nationals mandated by applicable laws) are owned
directly or indirectly by such Person.



     SECTION 1.2 Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement shall have
such meanings when used in each other Loan Document and the Disclosure Schedule.



     SECTION 1.3 Cross-References. Unless otherwise specified, references in a
Loan Document to any Article or Section are references to such Article or Section of
such Loan Document, and references in any Article, Section or definition to any clause
are references to such clause of such Article, Section or definition.



26









 





     SECTION 1.4 Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used in each Loan Document shall be interpreted, and all
accounting determinations and computations thereunder (including under Section
7.2.4 and the definitions used in such determinations and computations) shall be
made, in accordance with GAAP, provided that:



     (a) if either (i) the Required Lenders or (ii) the Borrowers reasonably determine
that the use of GAAP as applied in the preparation of the financial statements for the
2006 Fiscal Year referred to in Section 7.1.1(b) would result in a distortion of the
covenants set forth in said Sections, and so notify the others (or other, as the case may
be) thereof by no later than 90 days after the receipt by the Lenders of all of the
financial information described in Sections 7.1.1(b) and (c) with respect to the 2006
Fiscal Year, or



     (b) if there occurs after December 31, 2006 any change in GAAP, or any change in the
way that GAAP is applied in the preparation of the financial statements for any Fiscal
Year delivered pursuant to Section 7.1.1 from the way that GAAP was applied in
the preparation of the financial statements for the 2006 Fiscal Year referred to in
Section 7.1.1(b) (a “GAAP Change”) that either (i) the Required Lenders
or (ii) the Borrowers reasonably determine would, if used in making such determinations
and computations, result in a distortion of the covenants set forth in said Sections, and
so notify the others (or other, as the case may be) thereof by no later than 90 days
after the receipt by the Lenders of all of the financial information described in
Section 7.1.1,


then the Borrowers and the Lenders shall negotiate in good faith with a view to entering
into amendments to the provisions of this Agreement, that relate to such determinations
and calculations to eliminate such distortions. If the Borrowers and the Lenders shall
fail to reach an agreement with respect to such amendments, the Required Lenders shall
specify amendments to the provisions of this Agreement that relate to such determinations
and computations (collectively, the “Specified Changes”), provided that
the Specified Changes shall be made reasonably and in good faith and, in the case of any
Specified Changes made in connection with a GAAP Change, shall be made with the intent of
putting the parties to this Agreement in the same respective positions in which they
would have been had there been no GAAP Change.




     Unless otherwise expressly provided, all financial covenants and defined financial
terms shall be computed on a consolidated basis for the Cayman Borrower and its
Subsidiaries, in each case without duplication.



     SECTION 1.5 Treatment of Certain Non-consolidated or Non-controlled
Subsidiaries. Anything to the contrary in Article VII or Article VIII
notwithstanding, the Borrowers agree to use Reasonable Efforts to cause:




     (a) each Subsidiary of the Cayman Borrower listed under the heading “Cuiaba
Structure” in Item 6.8 of the Disclosure Schedule (but only so long as the
Cayman Borrower does not materially increase the control that it has over the
operations of any such Subsidiary from the level of control that it has on the
Closing Date) to comply with the provisions of Section 7.1,



27









 






     (b) Trakya to comply with the provisions of Section 7.1,




     (c) Subic to comply with the provisions of Section 7.1, and




     (d) each Subsidiary of the Cayman Borrower that is acquired by the Cayman
Borrower or its Subsidiaries after the Closing Date to comply with the provisions
of Section 7.1, provided that this clause (d) shall apply with
respect to any such Subsidiary only during the six (6) month period immediately
following its acquisition;


provided that any failure of any such Subsidiary described in clause
(a), (b), (c) or (d) to comply with the covenants in said Sections shall not
be a breach of this Agreement (unless the Borrowers shall have failed to comply with its
obligation to use Reasonable Efforts to cause such compliance).




     SECTION 1.6 Subsidiaries’ Submission to Applicable Law and Contractual and
Fiduciary Duties. The Lenders acknowledge that the Cayman Borrower’s Subsidiaries
and the Persons appointed directly or indirectly by the Cayman Borrower to act as
officers and directors of such Subsidiaries are subject to Applicable Law as well as
contractual and fiduciary duties. The foregoing acknowledgement does not in any way
limit the obligations of the Borrowers under this Agreement or the obligations of the
Cayman Borrower or any of its Subsidiaries under any other Loan Document, or limit the
rights or remedies of the Lenders under this Agreement or any other Loan Document.



ARTICLE II

COMMITMENTS, BORROWING PROCEDURES AND NOTES




     SECTION 2.1 Commitments.



     SECTION 2.1.1 Term Loan Commitments. In a single borrowing occurring on the
Closing Date, each Lender agrees that it will make loans (each such loan relative to
such Lender, its “Term Loan”) to the Borrowers in an aggregate amount up to such
Lender’s Percentage of the Term Loan Commitment Amount. No amounts paid or prepaid with
respect to the Term Loans may be reborrowed. The execution and delivery of this
Agreement by the Borrowers and the satisfaction of all conditions precedent pursuant to
Article III shall be deemed to constitute the Borrowers’ request to borrow the
full amount of the Term Loans on the Closing Date.



     SECTION 2.1.2 Revolving Loan Commitments. From time to time until the date
that is the earlier of (i) the Commitment Termination Date and (ii) 30 days prior to the
Stated Maturity Date in respect of the Revolving Loans, each Lender agrees that it will
make loans (each such loan relative to such Lender, its “Revolving Loan”) to the
Cayman Borrower in an amount equal to such Lender’s Percentage of the Revolving Loan
Commitment Amount. On the terms and subject to the conditions hereof, amounts paid or
prepaid with respect to the Revolving Loans may be reborrowed. The Cayman Borrower may,
without penalty, upon giving the Administrative Agent not less than 5 Business Days
notice, cancel the whole or any part (subject to a minimum amount of $5,000,000) of the
Commitment related to Revolving Loans. Any amounts cancelled under the Commitment related
to Revolving Loans may not be re-instated and the Revolving Loan Commitment Amount will
be reduced accordingly. Notwithstanding the foregoing, no Lender (or the Administrative
Agent on its behalf) shall be permitted or required to



28









 




make any Revolving Loan if, after giving effect thereto, the aggregate outstanding
principal amount of all Revolving Loans would exceed the Revolving Loan Commitment
Amount.




     SECTION 2.1.3 Synthetic Revolving Deposit Account.



     (a) From time to time until the date that is the earlier of (i) the Commitment
Termination Date and (ii) 30 days prior to the Stated Maturity Date in respect of the
Synthetic Revolving Deposits, each Lender with a Synthetic Revolving Deposit acknowledges
that the Administrative Agent will make loans, and the Administrative Agent agrees to make
such Loans on the terms and subject to the conditions hereof (each such loan relative to
such Lender, its “Synthetic Revolving Loan”), to the Cayman Borrower on such
Lender’s behalf, in an amount equal to such Lender’s Synthetic Revolving Deposit
Percentage of the Synthetic Revolving Loan Commitment Amount requested to be made by the
Cayman Borrower pursuant to Section 2.2.3 and permitted hereunder. By the making
of a Synthetic Revolving Loan, and without any further action on the part of the
Administrative Agent or the Lenders, the Administrative Agent hereby grants to each Lender
on whose behalf the Administrative Agent has made a Synthetic Revolving Loan, and each
such Lender hereby acquires from the Administrative Agent, a participation in such
Synthetic Revolving Loan equal to such Lender’s Synthetic Revolving Deposit Percentage of
such Synthetic Revolving Loan. On the terms and subject to the conditions hereof, amounts
paid or prepaid with respect to the Synthetic Revolving Loans may be reborrowed. The
Cayman Borrower may, without penalty, upon giving the Administrative Agent not less than 5
Business Days notice, cancel the whole or any part (subject to a minimum amount of
$5,000,000) of the Commitment related to Synthetic Revolving Deposits and the Synthetic
Revolving Loans whereupon the Administrative Agent will withdraw amounts from the
Synthetic Revolving Deposit Account and return to each Lender with a Synthetic Revolving
Deposit an amount equal to such Lender’s Synthetic Revolving Deposit Percentage of the
amount so cancelled (as provided in Section 2.1.3(d)(i)); provided that in
no event shall the Synthetic Revolving Facility Available Amount be less than zero after
giving effect to any such cancellation. Any amounts cancelled under the Commitment
related to Synthetic Revolving Loans and the Synthetic Revolving Deposits may not be
re-instated and the Synthetic Revolving Loan Commitment Amount will be reduced
accordingly. Notwithstanding the foregoing, no Lender, nor the Administrative Agent on
its behalf, shall be permitted or required to make any Synthetic Revolving Loans if, after
giving effect thereto, the aggregate outstanding principal amount of all Synthetic
Revolving Loans would exceed the Synthetic Revolving Loan Commitment Amount.



     (b) On or prior to the Closing Date, the Administrative Agent shall establish the
Synthetic Revolving Deposit Account. The Administrative Agent shall maintain records
enabling it to determine at any time the amount of the interest of each Lender in the
Synthetic Revolving Deposit Account (the interest of each Lender in the Synthetic
Revolving Deposit Account, as evidenced by such records, being referred to as such
Lender’s “Synthetic Revolving Deposit Sub-Account”). The Administrative Agent shall
establish such additional Synthetic Revolving Deposit Sub-Accounts for assignee Lenders as
shall be required pursuant to Section 10.11. No Person (other than the Administrative
Agent or any of its sub-agents) shall have the right to make any withdrawals from the
Synthetic Revolving Deposit Account or exercise any other right or power with respect
thereto, except as expressly provided herein. Without limiting the generality of the
foregoing, each party hereto acknowledges and agrees that the Synthetic Revolving Deposits
are and will at all times be solely the property of the Lenders



29









 




providing Synthetic Revolving Deposits, and no amount on deposit at any time in the
Synthetic Revolving Deposit Account (i) shall be the property of either Borrower or any
Guarantor or (ii) shall constitute collateral under the Loan Documents. Each Lender with
a Synthetic Revolving Deposit agrees that its right, title and interest with respect to
the Synthetic Revolving Deposit Account shall be limited to the right to require amounts
in its Synthetic Revolving Deposit Sub-Account to be used as expressly set forth herein
and that it will have no right to require the return of its Synthetic Revolving Deposit
other than as expressly provided herein and each Lender with a Synthetic Revolving
Deposit hereby acknowledges that its Synthetic Revolving Deposit constitutes payment for
its requirement to fund Synthetic Revolving Loans pursuant to this Section 2.1.3,
and that the Administrative Agent will be extending Synthetic Revolving Loans in reliance
on the availability of such Lender’s Synthetic Revolving Deposits to discharge such
Lender’s obligations in accordance with Section 2.1.3(c). Each Lender with a
Synthetic Revolving Deposit acknowledges that payments of principal of Synthetic
Revolving Loans made by the Cayman Borrower hereunder, following the withdrawal of funds
to reimburse the Administrative Agent pursuant to Section 2.1.3(d), will be
deposited by the Administrative Agent into the Synthetic Revolving Deposit Account, for
further credit to each such Lender’s Synthetic Revolving Deposit Sub-Account, in
satisfaction of the payment of such principal amount of such Lender’s outstanding
Synthetic Revolving Loans. In addition, each Lender with a Synthetic Revolving Deposit
hereby grants to the Administrative Agent a security interest in its rights and interests
in such Lender’s Synthetic Revolving Deposit to secure the obligations of such Lender
hereunder. The funding of the Synthetic Revolving Deposits and the agreements with
respect thereto set forth in this Agreement constitute arrangements solely among the
Administrative Agent and each Lender with a Synthetic Revolving Deposit with respect to
the funding and reimbursement obligations of each such Lender under this Agreement, and
do not constitute loans, extensions of credit or other financial accommodations to either
Borrower or any Guarantor.




     (c) The following amounts will be deposited in the Synthetic Revolving Deposit
Account at the following times:




     (i) On the Closing Date, each Lender with a Commitment with respect to
Synthetic Revolving Loans and the Synthetic Revolving Deposits shall deposit
in the Synthetic Revolving Deposit Account an amount in Dollars equal to
such Lender’s Percentage of the Synthetic Revolving Loan Commitment Amount
as of the Closing Date (each amount so deposited, such Lender’s
“Synthetic Revolving Deposit”), which Synthetic Revolving Deposit
shall satisfy in full such Lender’s obligation in respect of its Commitment
to fund the Synthetic Revolving Deposit.




     (ii) On any date prior to the Termination Date on which the
Administrative Agent receives any payment of principal of Synthetic
Revolving Loans, with respect to which amounts were withdrawn from the
Synthetic Revolving Deposit Account in accordance with Section
2.1.3(d)(i) to reimburse or pay the Administrative Agent, subject to
Section 2.1.3(c)(iii), the Administrative Agent shall, to the extent
that it has been reimbursed for such Synthetic Revolving Loans as provided
in Section 2.1.3(d)(i), deposit in the Synthetic Revolving Deposit
Account, and credit to the Synthetic Revolving Deposit Sub-Accounts of the
Lenders with Synthetic Revolving Deposits, the portion of such reimbursed or



30









 







other payment in an amount equal to such Lender’s Synthetic Revolving
Deposit Percentage of such payment. Repayments of Synthetic Revolving Loans
that have not been reimbursed to the Administrative Agent as provided in
Section 2.1.3(d)(i) shall be for the account of the Administrative
Agent.




     (iii) If at any time when any amount is required to be deposited in the
Synthetic Revolving Deposit Account under Section 2.1.3(c)(ii) the
sum of such amount and the aggregate amount of the Synthetic Revolving
Deposits at such time would exceed the Synthetic Revolving Loan Commitment
Amount then in effect, such excess shall not be deposited in the Synthetic
Revolving Deposit Account and the Administrative Agent shall instead pay to
each Lender with a Synthetic Revolving Deposit its Synthetic Revolving
Deposit Percentage of such excess.



     (d) Each Lender with a Synthetic Revolving Deposit irrevocably and unconditionally
agrees that its Synthetic Revolving Deposit in the Synthetic Revolving Deposit Account
shall be withdrawn and distributed as follows:




     (i) In the event the Administrative Agent makes a Synthetic Revolving
Loan pursuant to Section 2.1.3, the Administrative Agent is hereby
authorized by each Lender with a Synthetic Revolving Deposit to withdraw for
its own account from the Synthetic Revolving Deposit Account the amount of
such principal, as reimbursement for each Synthetic Revolving Loan provided
by the Administrative Agent (and debit the Synthetic Revolving Deposit
Sub-Account of each Lender with a Synthetic Revolving Deposit in the amount
of such Lender’s Synthetic Revolving Deposit Percentage of such Synthetic
Revolving Loan).




     (ii) In the event the Cayman Borrower voluntarily decides to
permanently reduce the Synthetic Revolving Loan Commitment Amount, the
Administrative Agent will withdraw from the Synthetic Revolving Deposit
Account an amount equal to such reduction, and pay to each Lender with a
Synthetic Revolving Deposit an amount equal to the product of (A) such
Lender’s Synthetic Revolving Deposit Percentage multiplied by (B) the
aggregate amount of such reduction.




     (iii) Concurrently with the effectiveness of any assignment by any
Lender with a Synthetic Revolving Deposit of all or any portion of its
Synthetic Revolving Deposit, the corresponding portion of the assignor’s
Synthetic Revolving Deposit Sub-Account shall be transferred from the
assignor’s Synthetic Revolving Deposit Sub-Account to the assignee’s
Synthetic Revolving Deposit Sub-Account in accordance with Section
10.11 and, if required by Section 10.11, the Administrative
Agent shall close such assignor’s Synthetic Revolving Deposit Sub-Account.




     (iv) Upon the occurrence of the Termination Date (other than the return
of the portion of the Synthetic Revolving Deposit of each applicable Lender
with a Synthetic Revolving Deposit on deposit in the Synthetic Revolving
Deposit



31









 







Account), all amounts remaining in the Synthetic Revolving Deposit Account
shall be returned by the Administrative Agent to each Lender with a
Synthetic Revolving Deposit based on each such Lender’s Synthetic Revolving
Deposit Percentage.




     (v) Upon the reduction of each of the Commitments related to Synthetic
Revolving Loans to zero, the Administrative Agent shall withdraw from the
Synthetic Revolving Deposit Account and pay to each Lender with a Synthetic
Revolving Deposit the entire remaining amount of such Lender’s Synthetic
Revolving Deposit, and shall close the Synthetic Revolving Deposit Account.




Each Lender with a Synthetic Revolving Deposit irrevocably and
unconditionally agrees that its Synthetic Revolving Deposit may be applied
or withdrawn from time to time as set forth in this Section
2.1.3(d).



     (e) On each day on which Participation Fees are required to be paid with respect to
all or any portion of the Synthetic Revolving Deposits pursuant to Section
3.2.1(b), the Administrative Agent shall pay to each Lender with a Synthetic
Revolving Deposit an amount (the “Synthetic Revolving Deposit Return”) equal to
(i) the Base Return for the relevant Investment Period multiplied by (ii) such Lender’s
Synthetic Revolving Deposit Percentage. Any amounts earned and received with respect to
Synthetic Revolving Deposits during any applicable Investment Period in excess of the
Base Return shall be for the account of the Administrative Agent. No Person other than
the Administrative Agent shall have any obligation under or in respect of this
Section 2.1.3(e).



     (f) The Cayman Borrower shall have no right, title or interest in or to any of the
Synthetic Revolving Deposits, the Synthetic Revolving Deposit Account or any Synthetic
Revolving Deposit Sub-Account and no obligations in respect thereof (except for the
repayment of Synthetic Revolving Loans as provided herein and the payment of
Participation Fees under Section 3.2.1(b)). Notwithstanding anything to the
contrary in this Agreement, the Cayman Borrower shall not be liable for any losses due to
(i) the misappropriation of any Base Return or Synthetic Revolving Deposit or (ii) the
failure of the Administrative Agent to pay the Synthetic Revolving Deposit Return to any
Lender (it being understood and agreed for greater certainty that this clause shall not
limit any obligation of the Cayman Borrower hereunder to pay any Participation Fee).
Neither the Administrative Agent nor any other Person guarantees any rate of return on
the investment of any Synthetic Revolving Deposit held in the Synthetic Revolving Deposit
Account.



     (g) In the event any payment of a Synthetic Revolving Loan shall be required to be
refunded by the Administrative Agent to the Cayman Borrower after the return of the
Synthetic Revolving Deposits to the applicable Lenders as permitted hereunder, each such
Lender agrees to acquire and fund a participation in such refunded amount equal to the
lesser of its Synthetic Revolving Deposit Percentage thereof and the amount of its
Synthetic Revolving Deposit that shall have been so returned.



     SECTION 2.2 Borrowing Procedures.



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     SECTION 2.2.1 Term Loan Borrowing Procedures. On the terms and subject to
the conditions of this Agreement, the Term Loan borrowing shall comprise Base Rate Loans.
On or before 11:00 a.m. on the Closing Date, each Lender shall deposit with the
Administrative Agent immediately available funds in an amount equal to such Lender’s
Percentage of the Term Loan Commitment Amount. Such deposit will be made to an account
which the Administrative Agent shall specify by notice to the Lenders. To the extent
funds are received from the Lenders, the Administrative Agent shall make such funds
available to the Borrowers by wire transfer to the accounts the Borrowers shall have
specified in writing to the Administrative Agent. No Lender’s obligation to make any Loan
shall be affected by any other Lender’s failure to make a Loan.



     SECTION 2.2.2 Revolving Loan Borrowing Procedures. By delivering a Borrowing
Request to the Administrative Agent on or before 10:00 a.m. on a Business Day, the Cayman
Borrower may request that a borrowing of Revolving Loans be made (a) with respect to Base
Rate Loans, on such Business Day and (b) with respect to LIBO Rate Loans, on the third
Business Day following delivery of the Borrowing Request. Each Revolving Loan Borrowing
Request shall be irrevocable and shall specify: (i) the aggregate principal amount of
such borrowing and (ii) the date of such borrowing (which shall be a Business Day). The
aggregate principal amount of each Revolving Loan borrowing shall be not less than
$2,000,000 and in an integral multiple of $500,000, or the remainder of the amount
available under the Revolving Loan Commitment Amount. On or before 1:00 p.m. on the date
of such borrowing, each Lender shall deposit with the Administrative Agent immediately
available funds in an amount equal to such Lender’s Percentage of the Revolving Loan
Commitment Amount. Such deposit will be made to an account which the Administrative Agent
shall specify by notice to the Lenders. To the extent funds are received from the
Lenders, the Administrative Agent shall make such funds available to the Cayman Borrower
by wire transfer to the accounts the Cayman Borrower shall have specified in its
Borrowing Request. No Lender’s obligation to make any Loan shall be affected by any other
Lender’s failure to make a Loan.



     SECTION 2.2.3 Synthetic Revolving Deposits; Synthetic Revolving Loan Borrowing
Procedures. By delivering a Borrowing Request to the Administrative Agent on or
before 10:00 a.m. on a Business Day, the Cayman Borrower may request that a borrowing of
Synthetic Revolving Loans be made (a) with respect to Base Rate Loans, on such Business
Day and (b) with respect to LIBO Rate Loans, on the third Business Day following delivery
of the Borrowing Request. Each Synthetic Revolving Loan Borrowing Request shall be
irrevocable and shall specify: (i) the aggregate principal amount of such borrowing and
(ii) the date of such borrowing (which shall be a Business Day). The aggregate principal
amount of each Synthetic Revolving Loan borrowing shall be not less than $2,000,000 and
in an integral multiple of $500,000, or the remainder of the amount available under the
Synthetic Revolving Loan Commitment Amount.



     SECTION 2.3 Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 10:00 a.m. on a
Business Day, the Borrowers may from time to time irrevocably elect, on not less than one
Business Day’s notice in the case of Base Rate Loans, or three Business Days’ notice in
the case of LIBO Rate Loans, and in either case not more than five Business Days’ notice,
that all, or any portion in an aggregate minimum amount of $1,000,000 and an integral
multiple of $1,000,000 be, in the case of Base Rate Loans, converted into LIBO Rate Loans
or be, in the case of LIBO Rate Loans, converted into Base Rate Loans or continued as
LIBO Rate Loans (in the absence of




33











 




delivery of a Continuation/Conversion Notice with respect to any LIBO Rate Loan at least
three Business Days (but not more than five Business Days) before the last day of the
then current Interest Period with respect thereto, such LIBO Rate Loan shall, on such
last day, automatically convert to a Base Rate Loan); provided that (x) each such
conversion or continuation shall be pro rated among the applicable outstanding Loans of
all Lenders, and (y) no portion of the outstanding principal amount of any Loans may be
continued as, or be converted into, LIBO Rate Loans when any Event of Default has
occurred and is continuing. Notwithstanding anything to the contrary in this Section
2.3, on the third Business Day after the Closing Date, all of the Loans shall be
converted into LIBO Rate Loans with an initial Interest Period of one month, as and to
the extent specified in a Continuation/Conversion Notice delivered to the Administrative
Agent on the Closing Date.




     SECTION 2.4 Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one of its
foreign branches or Affiliates (or an international banking facility created by such
Lender) to make or maintain such LIBO Rate Loan; provided that such LIBO Rate
Loan shall nonetheless be deemed to have been made and to be held by such Lender, and the
obligation of the Borrowers to repay such LIBO Rate Loan shall nevertheless be to such
Lender for the account of such foreign branch, Affiliate or international banking
facility. In addition, the Borrowers hereby consent and agree that, for purposes of any
determination to be made for purposes of Section 4.1, 4.2, 4.3 or
4.4, it shall be conclusively assumed that each Lender elected to fund all LIBO Rate
Loans by purchasing Dollar deposits in its LIBOR Office’s interbank eurodollar market.



     SECTION 2.5 Register; Notes.



     (a) The Borrowers hereby designate the Administrative Agent to serve as the
Borrowers’ agent, solely for the purpose of this clause, to maintain a register (the
“Register”) on which the Administrative Agent will record each Lender’s
Commitment, the Loans made by each Lender and each repayment in respect of the principal
amount of the Loans, annexed to which the Administrative Agent shall retain a copy of
each Lender Assignment Agreement delivered to the Administrative Agent pursuant to
Section 10.11. Failure to make any recordation, or any error in such recordation,
shall not affect the Borrowers’ Obligations. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrowers, the Administrative Agent
and the Lenders shall treat each Person in whose name a Loan is registered (or, if
applicable, to which a Note has been issued) as the owner thereof for the purposes of all
Loan Documents, notwithstanding notice or any provision herein to the contrary. Any
assignment or transfer of a Commitment or the Loans made pursuant hereto shall be
registered in the Register only upon delivery to the Administrative Agent of a Lender
Assignment Agreement that has been executed by the requisite parties pursuant to Section
10.11. No assignment or transfer of a Lender’s Commitment or Loans shall be effective
unless such assignment or transfer shall have been recorded in the Register by the
Administrative Agent as provided in this Section.



     (b) The Borrowers agrees that, upon the request of any Lender, each Borrower will
execute and deliver to such Lender a Note evidencing the Loans made by, and payable to
the order of, such Lender in a maximum principal amount equal to such Lender’s Percentage
of the Term Loan Commitment Amount or Revolving Loan Commitment Amount, as applicable.
Each



34









 




Borrower hereby irrevocably authorizes each Lender to make (or cause to be made)
appropriate notations on the grid attached to such Lender’s Note (or on any continuation
of such grid), which notations, if made, shall evidence, inter alia, the
date of, the outstanding principal amount of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. Such notations shall, to the extent not
inconsistent with notations made by the Administrative Agent in the Register, be
conclusive and binding on each Borrower absent manifest error; provided that the
failure of any Lender to make any such notations or any error in such notations shall not
limit or otherwise affect any Obligations of the Borrowers.




     SECTION 2.6 Increase in Revolving Loan Commitment Amount.



     (a) The Cayman Borrower may, at any time and from time to time, by notice to the
Administrative Agent, request one or more increases in the Revolving Loan Commitment
Amount (each, a “Commitment Increase”) in an aggregate amount up to $105,000,000,
to be effective as of a date to be agreed by the Administrative Agent and the Lenders
providing such increase in the Revolving Loan Commitment Amount (each such date, an
“Increase Date”) as specified in the related notice to the Administrative Agent;
provided, however, that (i) on the date of any request by the Borrower
for a Commitment Increase and on the related Increase Date, the applicable conditions set
forth in Section 5.2.4 shall be satisfied, (ii) any increase in the Revolving
Loan Commitment Amount shall be accompanied by a corresponding permanent reduction in the
aggregate Synthetic Revolving Loan Commitment Amount and return of the Synthetic
Revolving Deposits to the applicable Lenders in accordance with their respective
Synthetic Revolving Deposit Percentages, and (iii) no Lender shall have any obligation to
participate in any Commitment Increase. Such notice shall specify each Lender or
financial institution agreeing to become a Lender which will provide such Commitment
Increase and its respective share of the Commitment Increase; provided,
however, that the Commitment of each new Lender providing such Commitment
Increase shall not be less than $1,000,000 and each Lender or financial institution
providing any portion of such Commitment Increase shall be reasonably satisfactory to the
Administrative Agent.



     (b) The Cayman Borrower may extend offers to one or more new Lenders to participate
in any portion of the requested Commitment Increase. Each new Lender that participates
in a requested Commitment Increase in accordance with Section 2.6 shall become a
Lender party to this Agreement as of the applicable Increase Date and the Commitment of
each Lender participating in such Commitment Increase shall be increased by the amount
allocated to such Lender by the Cayman Borrower and the Administrative Agent as of such
Increase Date and notified to such Lender by the Administrative Agent; provided,
that the Administrative Agent shall have received on or before the applicable Increase
Date the following, each dated such date:




     (i) an assumption agreement from each new Lender, if any, in form and
substance satisfactory to the Cayman Borrower and the Administrative Agent (each an
“Assumption Agreement”), duly executed by such new Lender, the
Administrative Agent and the Borrower; and



35









 






     (ii) confirmation from each Lender of the increase in the amount of its
Commitment, duly executed by such Lender, the Borrowers and the Administrative
Agent.


On the applicable Increase Date, the Administrative Agent shall (x) notify the existing
Lenders and any new Lenders participating in such Commitment Increase and the Cayman
Borrower, on or before 11:00 a.m., of the occurrence of the applicable Commitment
Increase to be effected on the related Increase Date, (y) record in the Register
maintained by the Administrative Agent pursuant to Section 2.5(a) the relevant
information with respect to each existing Lender and each new Lender participating in
such Commitment Increase on such date and (z) withdraw from the Synthetic Revolving
Deposit Account and return to each applicable Lender an amount equal to such Lender’s
Synthetic Revolving Deposit Percentage of such Commitment Increase. From and after each
such Increase Date, the Synthetic Revolving Loan Commitment Amount shall be permanently
reduced by the amount of the applicable Commitment Increase.




ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES




     SECTION 3.1 Repayments and Prepayments; Application. The Borrowers agree
that the Loans shall be repaid and prepaid pursuant to the following terms.



     SECTION 3.1.1 Repayments and Prepayments. The Borrowers shall repay in full
the unpaid principal amount of each Loan (it being understood that payment of Revolving
Loans shall be for the account of the Administrative Agent unless and to the extent the
Administrative Agent shall have been reimbursed by the Lenders in accordance with
Section 2.2.2 and Section 9.2 and that payment of Synthetic Revolving
Loans shall be for the account of the Administrative Agent unless and to the extent the
Administrative Agent shall have been reimbursed by the Lenders in accordance with
Section 2.1.3(d)(i)) on the Stated Maturity Date in respect of such Loan. Prior
thereto, payments and prepayments of the Loans and refunding of the Synthetic Revolving
Deposits shall or may be made as set forth below.




     (a) Voluntary Prepayments.




     (i) From time to time on any Business Day, without penalty, the
Borrowers may make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of the Loans; provided that (x) all
such voluntary prepayments shall require at least one (or at least three in
the case of LIBO Rate Loans) but no more than five Business Days’
irrevocable prior written notice to the Administrative Agent; (y) all such
voluntary partial prepayments shall be in an aggregate minimum amount of
$5,000,000 (or, in the case of Revolving Loans, the entire principal amount
of the Revolving Loans then outstanding, if such amount is less than
$5,000,000) and an integral multiple of $1,000,000; and (z) each such
prepayment of the Term Loans shall be subject to the Call Premium, if
applicable. Each such irrevocable request in respect of Revolving Loans may
be made by telephone confirmed promptly in writing by hand delivery or
facsimile to the Administrative Agent of the applicable voluntary
prepayment.



36









 






     (ii) From time to time on any Business Day, without penalty, the Cayman
Borrower may cause the Synthetic Revolving Deposits to be returned to the
applicable Lenders by reducing the Synthetic Revolving Loan Commitment Amount as
provided in Section 2.1.3(a).




     (b) Scheduled Amortizations; Final Maturity of Revolving Loans and
Synthetic Revolving Loans. (i) On each Quarterly Payment Date occurring beginning
with September 2007 through and including the last Quarterly Payment Date occurring prior
to the Stated Maturity Date in respect of the Term Loans, the Borrowers shall make a
scheduled repayment of the aggregate outstanding principal amount of the Term Loans in an
amount equal to 1.07% of the Term Loan Commitment Amount as of the Closing Date and (ii)
on the Stated Maturity Date with respect to the Term Loans, the Borrowers shall make a
scheduled repayment of the then outstanding aggregate principal amount of the Term Loans.
On the Stated Maturity Date in respect of the Revolving Loans, the Cayman Borrower
shall make a repayment of the then outstanding aggregate principal amount of the
Revolving Loans. On the Stated Maturity Date in respect of the Synthetic Revolving Loans,
the Cayman Borrower shall make a repayment of the then outstanding aggregate principal
amount of the Synthetic Revolving Loans.




     (c) Disposition/Casualty Proceeds — Generally. In the event either Borrower
receives any Net Disposition Proceeds or Net Casualty Proceeds, such Borrower shall
(subject to the proviso hereto) within three Business Days of such receipt, deliver to
the Administrative Agent a calculation of the amount of such Net Disposition Proceeds or
Net Casualty Proceeds, and such Borrower shall make a mandatory prepayment of the Term
Loans (or if the Term Loans have been repaid in full, prepay the Revolving Loans or, if
the Revolving Loans have been repaid in full, prepay the Synthetic Revolving Loans) in an
amount equal to a ratable portion of the amount of such Net Disposition Proceeds or Net
Casualty Proceeds based on all outstanding permitted senior secured Indebtedness of such
Borrower that contains a prepayment provision similar to this Section 3.1.1(c);




provided that upon written notice by the Cayman Borrower to the Administrative
Agent not more than three Business Days following receipt of any Net Disposition
Proceeds or Net Casualty Proceeds, such proceeds may be retained by the Cayman Borrower
(and be excluded from the prepayment requirements of this clause) if:




     (i) the Cayman Borrower informs the Administrative Agent in such notice of
its good faith intention to apply (or cause one or more of its Subsidiaries to
apply) such Net Disposition Proceeds or Net Casualty Proceeds to the acquisition
of other assets or properties consistent with the businesses permitted to be
conducted pursuant to Section 7.2.1 (including by way of merger or
Investment) or to the repair or reinstatement of the assets, and




     (ii) no later than the date (the “Reinvestment Date”) that is 365
days following the receipt of such Net Disposition Proceeds or such Net Casualty
Proceeds, such proceeds are applied or have received specific board approval for
application (indicating the proposed application of such committed proceeds and



37









 







requiring subsequent board approval for any alternate use of such proceeds) to
such acquisition, repair or reinstatement (as applicable). The amount of such Net
Disposition Proceeds or Net Casualty Proceeds unused or uncommitted after the
Reinvestment Date, shall be applied to prepay the Loans as set forth in
Section 3.1.2.




     (d) Net Equity Proceeds. In the event either Borrower receives any Net
Equity Proceeds, such Borrower shall (subject to the proviso hereto) within three
Business Days of such receipt, deliver to the Administrative Agent a calculation of the
amount of such Net Equity Proceeds, and such Borrower shall make a mandatory prepayment
of the Term Loans (or if the Term Loans have been repaid in full, prepay the Revolving
Loans or, if the Revolving Loans have been repaid in full, prepay the Synthetic Revolving
Loans) in an amount equal to a ratable portion of 50% of the amount of such Net Equity
Proceeds based on all outstanding permitted senior secured Indebtedness of such Borrower
that contains a prepayment provision similar to this Section 3.1.1(d);




provided that upon written notice by the Cayman Borrower to the Administrative
Agent not more than three Business Days following receipt of any Net Equity Proceeds,
such proceeds may be retained by the Cayman Borrower (and be excluded from the
prepayment requirements of this clause) if:




     (i) the Cayman Borrower informs the Administrative Agent in such notice of
its good faith intention to apply (or cause one or more of its Subsidiaries to
apply) such Net Equity Proceeds to (u) the payment of ordinary course of business
expenses of the Cayman Borrower and its Subsidiaries, (w) the payment of Capital
Expenditures, (x) the repayment of the Cayman Borrower’s Subordinated Debt
outstanding under the Note Purchase Agreement on the Closing Date, (y) a
Permitted Acquisition or (z) repay Indebtedness of a Subsidiary of the Cayman
Borrower and




     (ii) no later than the date (the “Equity Reinvestment Date”) that is
180 days following the receipt of such Net Equity Proceeds, such proceeds are
applied or have received specific board approval for application (indicating the
proposed application of such committed proceeds and requiring subsequent board
approval for any alternate use of such proceeds) as provided in clause
(d)(i) above. The amount of such Net Equity Proceeds unused or uncommitted
after the Equity Reinvestment Date, shall be applied to prepay the Loans as set
forth in Section 3.1.2.




     (e) Net Debt Proceeds. In the event either Borrower receives any Net Debt
Proceeds, such Borrower shall (subject to the proviso hereto) within three Business Days
of such receipt, deliver to the Administrative Agent a calculation of the amount of such
Net Debt Proceeds, and such Borrower shall make a mandatory prepayment of the Term Loans
(or if the Term Loans have been repaid in full, prepay the Revolving Loans or, if the
Revolving Loans have been repaid in full, prepay the Synthetic Revolving Loans) in an
amount equal to a ratable portion of 100% of the amount of such Net Debt Proceeds



38









 







based on all outstanding permitted senior secured Indebtedness of the Borrowers that
contains a prepayment provision similar to this Section 3.1.1(e);




provided that upon written notice by the Cayman Borrower to the Administrative
Agent not more than three Business Days following receipt of any Net Debt Proceeds, such
proceeds may be retained by the Cayman Borrower (and be excluded from the prepayment
requirements of this clause) if:




     (i) the Cayman Borrower informs the Administrative Agent in such notice of
its good faith intention to apply (or cause one or more of its Subsidiaries to
apply) such Net Debt Proceeds to (v) the payment of Capital Expenditures, (w) the
payment of ordinary course of business expenses of the Cayman Borrower and its
Subsidiaries, (x) the repayment of the Cayman Borrower’s Subordinated Debt
outstanding under the Note Purchase Agreement on the Closing Date, (y) a
Permitted Acquisition or (z) repay Indebtedness of a Subsidiary of the Cayman
Borrower (provided that Indebtedness of a Subsidiary other than a
Qualified New Subsidiary may not be used to repay Indebtedness of a Qualified New
Subsidiary) and



     (ii) no later than the date
(the “Debt Reinvestment Date”) that is
180 days following the receipt of such Net Debt Proceeds, such proceeds are
applied or have received specific board approval for application (indicating the
proposed application of such committed proceeds and requiring subsequent board
approval for any alternate use of such proceeds) as provided in clause
(e)(i) above. The amount of such Net Debt Proceeds unused or uncommitted
after the Debt Reinvestment Date, shall be applied to prepay the Loans as set
forth in Section 3.1.2.




     (f) Revolving Loans; Synthetic Revolving Loans. On each date when the
aggregate outstanding principal amount of Revolving Loans exceeds the Revolving Loan
Commitment Amount then in effect and/or the aggregate outstanding principal amount of
Synthetic Revolving Loans exceeds the Synthetic Revolving Loan Commitment Amount then in
effect, the Cayman Borrower shall make a mandatory prepayment of Revolving Loans and/or
Synthetic Revolving Loans, as applicable, in an amount equal to such excess. In the
event that the proceeds of Revolving Loans or Synthetic Revolving Loans are used to make
any Restricted Payment in accordance with Section 7.2.6, the Cayman Borrower
shall make (through one or more payments) a mandatory prepayment of the Revolving Loans
and/or Synthetic Revolving Loans, as applicable, no later than the date that is 180 days
after the date of such Restricted Payment (or, if such date is not a Business Day, the
next succeeding Business Day) in an amount equal to the proceeds of such Revolving Loans
and/or Synthetic Revolving Loans used for such Restricted Payment less the amount of any
voluntary prepayments of the Revolving Loans and/or Synthetic Revolving Loans, as
applicable, made (and not reborrowed) during the period 180 days prior to the borrowing
of the applicable Revolving Loans and/or Synthetic Revolving Loans, as applicable, for
the payment of such Restricted Payment.



39









 






     (g) Acceleration. Immediately upon any acceleration of the Stated
Maturity Date of any Loans pursuant to Section 8.2 or Section 8.3,
the Borrowers shall repay all the Loans, unless, pursuant to Section 8.3,
only a portion of all the Loans is so accelerated (in which case the portion so
accelerated shall be so repaid).




     (h) Call Premium. In the event that the Term Loans are prepaid or
repaid in whole or in part pursuant to Section 3.1.1(a) or Section
3.1.1(e), in either case, on or before the first anniversary of the Effective
Date, the Cayman Borrower shall pay to each Lender holding Term Loans a prepayment
premium in an amount equal to 1% on the principal amount of such Lender’s Term
Loans so prepaid or repaid (the “Call Premium”). Each repayment or
prepayment of the Revolving Loans, the Synthetic Revolving Loans and, except as
provided in the preceding sentence, the Term Loans, pursuant to this Section
3.1.1 shall be without premium or penalty except to the extent required by
Section 4.4.




     (i) Reasonable Efforts. The Cayman Borrower shall, and shall cause all
wholly owned Subsidiaries to, use all Reasonable Efforts to ensure that as soon as
reasonably practicable following receipt by any such Subsidiary of any Net
Disposition Proceeds, Net Casualty Proceeds, Net Equity Proceeds or Net Debt
Proceeds, such amounts are paid, transferred or distributed, directly or
indirectly, to the Cayman Borrower; provided, however, that such
proceeds shall not be required to be transferred to the Cayman Borrower if the
Cayman Borrower notifies the Administrative Agent pursuant to and in accordance
with the procedures specified in Section 3.1.1(c)(i), 3.1.1(d)(i)
or 3.1.1(e)(i) that a Subsidiary of the Cayman Borrower intends to use such
proceeds as contemplated by such notice.



     SECTION 3.1.2 Application. Amounts prepaid pursuant to Section
3.1.1 shall be applied as set forth in this Section.




     (a) Subject to clause (b), each prepayment or repayment of the
principal of the Loans shall be applied, to the extent of such prepayment or
repayment, first, to the principal amount thereof being maintained as Base
Rate Loans, and second, subject to the terms of Section 4.4. to the
principal amount thereof being maintained as LIBO Rate Loans.




     (b) Each prepayment of the Term Loans made pursuant to Section 3.1.1
shall be applied ratably to each of payments to be made by the applicable Borrower
pursuant to Section 3.1.1(b)(i) and Section 3.1.1(b)(ii) based on
the amount of such payment.



     SECTION 3.2 Interest Provisions. Interest on the outstanding principal
amount of the Loans shall accrue and be payable in accordance with the terms set forth
below.



     SECTION 3.2 Rates; Fees.




     (a) Subject to Section 2.2 and Section 2.3, pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the applicable Borrower may elect
that the Loans accrue interest at a rate per annum:



40









 






     (i) on that portion maintained from time to time as a Base Rate
Loan, equal to the sum of the Alternate Base Rate from time to time in effect
plus the Applicable Margin; and




     (ii) on that portion maintained as a LIBO Rate Loan, during each
Interest Period applicable thereto, equal to the sum of the LIBO Rate
(Reserve Adjusted) for such Interest Period plus the Applicable Margin.


All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest Period at
the interest rate determined as applicable to such LIBO Rate Loan. Interest on Base Rate
Loans shall be calculated from and including the first day of the borrowing of such Base
Rate Loan to (but not including) the date interest is required to be paid on such Base
Rate Loan pursuant to Section 3.2.3.




     (b) Synthetic Revolving Deposits in the Synthetic Revolving Deposit Account shall
accrue fees (the “Participation Fees”) at a rate per annum equal to the
Applicable Margin applicable to LIBO Rate Loans plus 0.10% on the daily amount of the
aggregate Synthetic Revolving Deposits (less the daily principal amount of aggregate
Synthetic Revolving Loans that have not been reimbursed pursuant to Section
2.1.3(d)(i) during such period), which Participation Fees shall be payable by the
Cayman Borrower quarterly in arrears to the Administrative Agent on behalf of Lenders
with Synthetic Revolving Deposits. Participation Fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).



     SECTION 3.2.2 Post-Maturity Rates. After the date any principal amount of
any Loan is due and payable (whether on the Stated Maturity Date, upon acceleration or
otherwise), or after any other monetary Obligation of the Borrowers shall have become due
and payable, the Borrowers shall pay, but only to the extent permitted by law, interest
(after as well as before judgment) on such amounts at a rate per annum equal to (a) in
the case of overdue principal on any Loan, the rate of interest that otherwise would be
applicable to such Loan plus 2% per annum; and (b) in the case of overdue interest, fees,
and other monetary Obligations, the Alternate Base Rate plus 2% per annum.



     SECTION 3.2.3 Payment Dates.



     (a) Interest accrued on each Loan shall be payable,
without duplication:




     (i) on the Stated Maturity Date therefor;




     (ii) with respect to LIBO Rate Loans, (i) on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed three
months, on each three-month anniversary of the first day of such Interest
Period) and (ii) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan on the principal amount so paid
or prepaid;




     (iii) with respect to Base Rate Loans, (i) on each Quarterly Payment
Date occurring after the Effective Date, (ii) on the date of any payment or



41









 







prepayment, in whole (but not in part), of principal outstanding on such Loan
that is a Term Loan on the principal amount so paid or prepaid, and (iii) on
the date of any payment or prepayment, in whole or in part, of principal
outstanding on such Loan that is a Revolving Loan on the principal amount so
paid or prepaid (to the extent corresponding Revolving Loan Commitment
Amounts are permanently reduced in connection with such payment or
prepayment); and




     (iv) on that portion of any Loans the Stated Maturity Date of which
is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.


Interest accrued on Loans or other monetary Obligations after the date such amount is
due and payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.




     (b) Participation Fees on each Synthetic Revolving Deposit shall be payable,
without duplication:




     (i) on the Stated Maturity Date for such Synthetic Revolving Loans;




     (ii) on the date of any return of Synthetic Revolving Deposits
pursuant to Section 3.1.1(a)(ii), on the amount of such Synthetic Revolving
Deposits so returned; and




     (iii) on each Quarterly Payment Date occurring after the Effective Date.



     SECTION 3.3 Fees. The Borrowers agree to pay the fees to the Persons, in
the amounts and on the dates set forth below and/or set forth in the Fee Letter and any
other fee letter entered into in connection herewith.



     SECTION 3.3.1 Revolving Loan Commitment Fee. The Cayman Borrower shall pay
to the Administrative Agent for the account of each Lender relating to the Revolving
Loans, quarterly (it being understood such first quarterly period shall commence on the
Closing Date and the fees payable with respect to such first quarterly period shall be
pro rated accordingly) in arrears on each Quarterly Payment Date and on the date of the
final repayment of the Revolving Loans in accordance with Section 3.1.1(f), for
the period (including any portion thereof when any of its Commitments are suspended by
reason of the Cayman Borrower’s inability to satisfy any condition of Section
5.2) commencing on the Closing Date and continuing through the date of the final
repayment of the Revolving Loans in accordance with Section 3.1.1(f), a
commitment fee at a rate per annum equal to 0.50% on such Lender’s Percentage relating
to the Revolving Loans of the sum of the average daily unused portion of the Revolving
Loan Commitment Amount.



ARTICLE IV

CERTAIN LIBO RATE AND OTHER PROVISIONS




     SECTION 4.1 LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrowers and the Administrative
Agent, be




42











 




conclusive and binding on the Borrowers) that the introduction of or any change in or in
the interpretation of any law makes it unlawful, or any Governmental Authority asserts
that it is unlawful, for such Lender to make or continue any Loan as, or to convert any
Loan into, a LIBO Rate Loan, the obligations of such Lender to make, continue or convert
any such LIBO Rate Loan shall, upon such determination, forthwith be suspended until such
Lender shall notify the Administrative Agent that the circumstances causing such
suspension no longer exist, and all outstanding LIBO Rate Loans payable to such Lender
shall automatically convert into Base Rate Loans at the end of the then current Interest
Periods with respect thereto or sooner, if required by such law or assertion.




     SECTION 4.2 Deposits Unavailable. If the Administrative Agent or the
Required Lenders shall have determined (which determination shall be conclusive absent
manifest error) that




     (a) Dollar deposits in the relevant amount and for the relevant Interest
Period are not available to it in its relevant market; or




     (b) by reason of circumstances affecting its relevant market, adequate means
do not exist for ascertaining the interest rate applicable hereunder to LIBO Rate
Loans;


then, upon notice from the Administrative Agent to the Borrowers and the Lenders, the
obligations of all Lenders under Section 2.3 and Section 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall forthwith be
suspended until the Administrative Agent shall notify the Borrowers and the Lenders that
the Administrative Agent or the Required Lenders have determined that the circumstances
causing such suspension no longer exist.




     SECTION 4.3 Increased LIBO Rate Loan Costs, etc. Each Borrower agrees, on a
joint and several basis, to reimburse each Lender for any increase in the cost to such
Lender of, or any reduction in the amount of any sum receivable by such Lender in respect
of, such Lender’s Commitments and the making of LIBO Rate Loans hereunder (including the
making, continuing or maintaining (or of its obligation to make or continue) any LIBO
Rate Loans as, or of converting (or of its obligation to convert) any Loans into, LIBO
Rate Loans) that arise in connection with any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in after the Closing Date of,
any law or regulation, directive, guideline, decision or request (whether or not having
the force of law) of any Governmental Authority, except for such changes with respect to
increased capital costs and Taxes which are governed by
Sections 4.5 and 4.6,
respectively and except for costs reflected in the LIBO Rate Reserve Percentage. Each
affected Lender shall promptly notify the Administrative Agent and the Borrowers in
writing of the occurrence of any such event, stating the reasons therefor and the
additional amount required fully to compensate such Lender for such increased cost or
reduced amount. Such additional amounts shall be payable by the Borrowers directly to
such Lender within three Business Days of its receipt of such notice, and such notice
shall, in the absence of manifest error, be conclusive and binding on the Borrowers;
provided that the Borrowers shall not be liable to any Lender for such amounts
incurred by such Lender more than 365 days prior to the date of notice to the Borrowers
and the Administrative Agent.



43









 





     SECTION 4.4 Funding Losses. In the event any Lender shall incur any loss or
expense (including any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to make or continue any
portion of the principal amount of any Loan as, or to convert any portion of the
principal amount of any Loan into, a LIBO Rate Loan as a result of




     (a) any conversion or repayment or prepayment of the principal amount of any
LIBO Rate Loan on a date other than the scheduled last day of the Interest Period
applicable thereto, whether pursuant to Article III or otherwise;




     (b) any Loans not being made as LIBO Rate Loans in accordance with the
Borrowing Request therefor (for a reason other than the failure of a Lender to make
such Loan);




     (c) any Loans not being continued as, or converted into, LIBO Rate Loans in
accordance with the Continuation/Conversion Notice therefor; or




     (d) any Loans not being borrowed on the date specified by the Borrowers on the
proposed Closing Date,


then, upon the written notice of such Lender to the Borrowers (with a copy to the
Administrative Agent), the Borrowers shall, within three Business Days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense. Such
written notice shall, in the absence of manifest error, be conclusive and binding on the
Borrowers.




     SECTION 4.5 Increased Capital Costs. If, after the date hereof, any change
in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request (whether or
not having the force of law) of any Governmental Authority affects or would affect the
amount of capital required or expected to be maintained by any Lender or any Person
controlling such Lender, and such Lender determines (in good faith but in its sole and
absolute discretion) that the rate of return on its or such controlling Person’s capital
as a consequence of the Commitments, the Loans made by such Lender or the Synthetic
Revolving Deposit made by such Lender is reduced to a level below that which such Lender
or such controlling Person could have achieved but for the occurrence of any such
circumstance, then upon notice from time to time by such Lender to the Borrowers, the
Borrowers shall within three Business Days following receipt of such notice pay directly
to such Lender additional amounts sufficient to compensate such Lender or such
controlling Person for such reduction in rate of return; provided that the
Borrowers shall not be liable to any Lender for any such reduction with respect to any
period of time which is more than 365 days prior to the date of any such statement. A
statement of such Lender as to any such additional amount or amounts shall, in the
absence of manifest error, be conclusive and binding on the Borrowers. In determining
such amount, such Lender may use any reasonable method of averaging and attribution that
it (in its sole and absolute discretion) shall deem applicable.



     SECTION 4.6 Taxes. Each Borrower covenants and agrees as follows with
respect to Taxes.



44









 






     (a) Any and all payments by or on account of each Borrower under each Loan Document
shall be made without setoff, counterclaim or other defense, and free and clear of, and
without deduction or withholding for or on account of, any Taxes except as required by
applicable law. In the event that any Taxes are imposed and required to be deducted or
withheld from any payment required to be made to or on behalf of any Secured Party under
any Loan Document, then:




     (i) subject to clause (g), if such Taxes are Non-Excluded Taxes, the
amount of payment by the applicable Borrower shall be increased as may be
necessary so that the net payment to the Secured Party, after withholding or
deduction for or on account of such Taxes, is not less than the amount provided
for in such Loan Document; and




     (ii) the applicable Borrower shall withhold or cause to be withheld the full
amount of such Taxes from such payment (as increased pursuant to clause
(a)(i)) and shall pay or cause to be paid such amount to the Governmental
Authority imposing such Taxes in accordance with applicable law.




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




     (c) As promptly as practicable after the payment of any Taxes or Other Taxes, the
applicable Borrower shall furnish to the Administrative Agent a copy of an official
receipt (or a certified copy thereof) evidencing the payment of such Taxes or Other Taxes
or other evidence of such payment reasonably satisfactory to the Administrative Agent.
The Administrative Agent shall make copies thereof available to any Lender upon request
therefor.




     (d) Subject to clause (g), the applicable Borrower shall indemnify each
Lender, for any Non-Excluded Taxes or Other Taxes required to be withheld by the
Administrative Agent with respect to any and all payments of the Synthetic Revolving
Deposit Return to the Lender (including Non-Excluded Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section 4.6). A
certificate stating the amount of such payment or liability and setting forth in
reasonable detail the calculation thereof shall be delivered to the applicable Borrower
by such Lender, or by the Administrative Agent on behalf of such Lender and shall be
conclusive absent manifest error. Notwithstanding the foregoing, where a certificate
described in the preceding sentence is not delivered to the applicable Borrower within 90
days after the assessed Lender or Administrative Agent receives notice of the assertion
of any Non- Excluded Taxes or Other Taxes, no indemnification shall be required for
penalties, additions to tax, expenses and interest accruing on such Non-Excluded Taxes or
Other Taxes from the date that is 90 days after the receipt by the assessed Lender or
Administrative Agent of written notice of the assertion of such taxes until (and then
only for periods after) 30 days after the date such certificate was actually received by
the applicable Borrower.



45









 






     (e) Subject to clause (g), the applicable Borrower shall indemnify each
Secured Party for any Non-Excluded Taxes and Other Taxes levied, imposed or assessed on
(and whether or not paid directly by) such Secured Party whether or not such Non-Excluded Taxes or Other Taxes are correctly or legally asserted by the relevant
Governmental Authority. Promptly upon having knowledge that any such Non-Excluded Taxes
or Other Taxes have been levied, imposed or assessed, and promptly upon notice thereof by
any Secured Party, the applicable Borrower shall pay such Non-Excluded Taxes or Other
Taxes directly to the relevant Governmental Authority (provided, however,
that no Secured Party shall be under any obligation to provide any such notice to either
Borrower). In addition, the applicable Borrower shall indemnify each Secured Party for
any incremental Taxes that may become payable by such Secured Party as a result of any
failure of such Borrower to pay any Taxes when due to the appropriate Governmental
Authority or to deliver to the Administrative Agent, pursuant to clause (c),
documentation evidencing the payment of Taxes or Other Taxes. With respect to
indemnification for Non-Excluded Taxes and Other Taxes actually paid by any Secured Party
or the indemnification provided in the immediately preceding sentence, such
indemnification shall be made within 90 days after the date such Secured Party makes
written demand therefor.




     (f) Pursuant to a reasonable written request from the applicable Borrower (delivered
to the Lender not fewer than 30 days prior to the time at which such Borrower requests
delivery by the Lender), a Lender that is legally entitled to an exemption from or
reduction of Non-Excluded Taxes with respect to payments hereunder or under any other
Loan Document shall deliver to such Borrower (with a copy to the Administrative Agent),
at the time or times prescribed by applicable law or reasonably requested by such
Borrower or the Administrative Agent, such properly completed and executed forms
prescribed by applicable law as will permit such payments to be made without withholding
or at a reduced rate of withholding; provided that the delivery of such forms
would not in the good faith determination of the Lender be materially disadvantageous to
it. Without limiting the foregoing, each Lender shall deliver to the Administrative
Agent, on or before the Closing Date (or if later, on or prior to the date such Lender
becomes a party hereto) and from time to time thereafter on or prior to the expiration of
the previously delivered form, two original copies of Internal Revenue Service Form W-9,
W-8BEN, W-8ECI, or W-8IMY (with required attachments), as may be applicable, in each
case, properly completed and executed, as will permit payments under this Agreement to be
made without any United States backup withholding.




     (g) Neither Borrower shall be obligated to pay any additional amounts to a Lender
pursuant to clause (a)(i), or to indemnify a Lender pursuant to clause
(d) or clause (e), in respect of Non-Excluded Taxes to the extent imposed as
a result of (i) the failure of such Lender to deliver to such Borrower any form or forms
that such Lender is required to deliver pursuant to clause (f), (ii) the
information or certifications made on such form or forms by the Lender being untrue or
inaccurate on the date delivered, or (iii) the Lender designating a successor lending
office at which it maintains its Loans which has the effect of causing such Lender to
become obligated for tax payments in excess of those in effect immediately prior to such
designation. Notwithstanding the forgoing, the applicable Borrower shall nonetheless be
obligated to pay additional amounts pursuant to



46









 






clause (a)(i) and to indemnify under clause (d) or clause
(e) (i) with respect to any withholding tax that would not have been eliminated
notwithstanding the Lender’s compliance with its obligations under clause
(f) above, (ii) to the extent that any failure to deliver a form or forms or
inaccuracy or untruth contained therein resulted from a change in any applicable
statute, treaty, regulation or other applicable law or any interpretation of any of
the foregoing occurring after the date a request for documentation establishing an
exemption from Non-Excluded Taxes was first requested pursuant to clause
(f), which change rendered such Lender no longer legally entitled to deliver
such form or forms or otherwise ineligible for a complete exemption from or reduced
rate of withholding taxes, or rendered the information or certifications made in
such form or forms untrue or inaccurate in a material respect, (iii) to the extent
that the redesignation of the Lender’s lending office was made at the request of
such Borrower or (iv) to the extent that the obligation to pay any additional
amounts to any such Lender pursuant to clause (a)(i) or to indemnify any
such Lender pursuant to clause (d) or clause (e) is with respect to
an Assignee Lender that becomes an Assignee Lender as a result of an assignment
made at the request of such Borrower.



     SECTION 4.7 Payments. Computations, etc. Unless otherwise expressly provided
in a Loan Document, all payments by the Borrowers pursuant to each Loan Document shall be
made by the Borrowers to the Administrative Agent for the pro rata account of the
Secured Parties entitled to receive such payment. All payments of principal of Synthetic
Revolving Loans shall be made by the Cayman Borrower to the Administrative Agent for
its account or, to the extent that the Administrative Agent has been reimbursed for
such Synthetic Revolving Loans from proceeds in the Synthetic Revolving Deposit Account,
for deposit into the Synthetic Revolving Deposit Account for the benefit of the
applicable Lenders in accordance with their Synthetic Revolving Deposit Percentages. All
payments shall be made without setoff, deduction or counterclaim not later than 11:00
a.m. on the date due in same day or immediately available funds to such account as the
Administrative Agent shall specify from time to time by notice to the Borrowers. Funds
received after that time shall be deemed to have been received by the Administrative
Agent on the next succeeding Business Day unless, at the Administrative Agent’s sole
discretion, the Administrative Agent elects to treat such payment as having been received
on the same Business Day. The Administrative Agent shall promptly remit in same day funds
to each Secured Party its share, if any, of such payments received by the Administrative
Agent for the account of such Secured Party. All interest (including interest on LIBO
Rate Loans) and fees shall be computed on the basis of the actual number of days
(including the first day but excluding the last day) occurring during the period for
which such interest or fee is payable over a year comprised of 360 days (or, in the case
of interest on a Base Rate Loan (calculated at other than the Federal Funds Rate), 365
days or, if appropriate, 366 days). Except as otherwise provided herein, payments due on
other than a Business Day shall be made on the next preceding Business Day and such
extension of time shall be included in computing interest and fees in connection with
that payment. Except as otherwise expressly set forth therein, any payment made under any
Loan Document that is less than the full amount then due thereunder shall be applied upon
receipt (a) first, to the payment of all Obligations (other than Loans and
interest thereon) owing to the Administrative Agent and the Collateral Agent, in its
capacity as the Administrative Agent and the Collateral Agent, respectively (including
the reasonable and documented fees and expenses of counsel to the Administrative Agent or
the Collateral Agent, as the case may be), (b) second, after payment in full in
cash of the amounts specified in clause (a),



47









 




to the ratable payment of all interest and fees owing with respect to the Loans and all
costs and expenses owing to the Secured Parties pursuant to the terms of the Credit
Agreement, until paid in full in cash, (c) third, after payment in full in cash
of the amounts specified in clauses (a) and (b), to the ratable payment
of the principal amount of the Loans then outstanding, and, if such payment resulted
from the proceeds of any collateral, then to amounts owing to Secured Parties under
Hedging Agreements, (d) fourth, after payment in full in cash of the amounts
specified in clauses (a) through (c), to the ratable payment of all other
Obligations owing to the Secured Parties, (e) fifth, after payment in full in
cash of the amounts specified in clauses (a) through (d), and following the
Termination Date, to the Borrowers or any other Person lawfully entitled to receive such
surplus. For purposes of this Section, the “credit exposure” at any time of any Secured
Party with respect to a Hedging Agreement to which such Secured Party is a party shall
be determined at such time in accordance with the customary methods of calculating
credit exposure under similar arrangements by the counterparty to such arrangements,
taking into account potential interest rate movements, currency movements and the
respective termination provisions and notional principal amount, netting arrangements
and term of such Hedging Agreement.




     SECTION 4.8 Sharing of Payments. If any Secured Party shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan (other than pursuant to the terms of Section
4.3, 4.4, 4.5 or 4.6) in excess of its pro rata share of
payments obtained by all Secured Parties, such Secured Party shall purchase from the
other Secured Parties such participations in Loans made by them as shall be necessary to
cause such purchasing Secured Party to share the excess payment or other recovery ratably
(to the extent such other Secured Parties were entitled to receive a portion of such
payment or recovery) with each of them; provided, however, that if all or
any portion of the excess payment or other recovery is thereafter recovered from such
purchasing Secured Party, the purchase shall be rescinded and each Secured Party which
has sold a participation to the purchasing Secured Party shall repay to the purchasing
Secured Party the purchase price to the ratable extent of such recovery together with an
amount equal to such selling Secured Party’s ratable share (according to the proportion
of (a) the amount of such selling Secured Party’s required repayment to the purchasing
Secured Party to (b) total amount so recovered from the purchasing Secured Party) of any
interest or other amount paid or payable by the purchasing Secured Party in respect of
the total amount so recovered. Each Borrower agrees that any Secured Party purchasing a
participation from another Secured Party pursuant to this Section may, to the fullest
extent permitted by law, exercise all its rights of payment (including pursuant to
Section 4.9) with respect to such participation as fully as if such Secured Party were
the direct creditor of such Borrower in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law any Secured Party receives a
secured claim in lieu of a setoff to which this Section applies, such Secured Party
shall, to the extent practicable, exercise its rights in respect of such secured claim in
a manner consistent with the rights of the Secured Parties entitled under this Section to
share in the benefits of any recovery on such secured claim.



     SECTION 4.9 Setoff. Each Secured Party shall, upon the occurrence and
during the continuance of any Event of Default described in clauses (a) through (e) of
Section 8.1.9 or, with the consent of the Required Lenders, upon the occurrence
and during the continuance of any other Event of Default, have the right to appropriate
and apply to the payment of the Obligations owing to it (whether or not then due) any
and all balances, credits, deposits, accounts or moneys



48









 




of the Borrowers then or thereafter maintained with such Secured Party (or any of its
Affiliates); provided, however, that any such appropriation and
application shall be subject to the provisions of Section 4.8. Each Secured Party
agrees promptly to notify the Borrowers and the Administrative Agent after any such
appropriation and application made by such Secured Party; provided,
however, that the failure to give such notice shall not affect the validity of
such setoff and application. The rights of each Secured Party under this Section are in
addition to other rights and remedies (including other rights of setoff under applicable
law or otherwise) which such Secured Party may have.




     SECTION 4.10 Replacement of Lenders. If any Lender (an “Affected
Lender”) (a) makes a demand upon either Borrower for (or if either Borrower is
otherwise required to pay) amounts pursuant to
Section 4.3. 4.5 or 4.6
(and the payment of such amounts are, and are likely to continue to be, more onerous in
the reasonable judgment of such Borrower than with respect to the other Lenders), or (b)
gives notice pursuant to Section 4.1 requiring a conversion of such Affected Lender’s
LIBO Rate Loans to Base Rate Loans or suspending such Lender’s obligation to make Loans
as, or to convert Loans into, LIBO Rate Loans, such Borrower may, within 90 days of
receipt by such Borrower of such demand or notice, as the case may be, give notice (a
“Replacement Notice”) in writing to the Administrative Agent and such Affected
Lender of its intention to cause such Affected Lender to sell all or any portion of its
Loans, Notes (if any) and/or Synthetic Revolving Deposits (if any) to another financial
institution or other Person (a “Replacement Lender”) designated in such
Replacement Notice; provided, that no Replacement Notice may be given by such
Borrower if (i) such replacement conflicts with any applicable law or regulation, (ii)
any Event of Default shall have occurred and be continuing at the time of such
replacement or (iii) prior to any such replacement, such Lender shall have taken any
necessary action under Section 4.5 or 4.6 (if applicable) so as to eliminate the
continued need for payment of amounts owing pursuant to
Section 4.5 or 4.6. If
the Administrative Agent shall, in the exercise of its reasonable discretion and within
30 days of its receipt of such Replacement Notice, notify the applicable Borrower and
such Affected Lender in writing that the Replacement Lender is satisfactory to the
Administrative Agent (such consent not being required where the Replacement Lender is
already a Lender), then such Affected Lender shall, subject to the payment of any amounts
due pursuant to Section 4.4, assign, in accordance with
Section 10.11,
the portion of its Loans, Notes (if any) and/or Synthetic Revolving Deposits (if any),
and other rights and obligations under this Agreement and all other Loan Documents
designated in the replacement notice to such Replacement Lender; provided, that
(i) such assignment shall be without recourse, representation or warranty and shall be on
terms and conditions reasonably satisfactory to such Affected Lender and such Replacement
Lender, (ii) the purchase price paid by such Replacement Lender shall be in the amount of
such Affected Lender’s Loans designated in the Replacement Notice and/or Synthetic
Revolving Deposits, as applicable, together with all accrued and unpaid interest and fees
in respect thereof, plus all other amounts (including the amounts demanded and
unreimbursed under Section 4.3, 4.5 and 4.6), owing to such Affected
Lender hereunder and (iii) the applicable Borrower shall pay to the Affected Lender and
the Administrative Agent all reasonable out-of-pocket expenses incurred by the Affected
Lender and the Administrative Agent in connection with such assignment and assumption
(including the processing fees described in Section 10.11). Upon the effective
date of an assignment described above, the Replacement Lender shall become a “Lender” for
all purposes under the Loan Documents. Each Lender hereby grants to the Administrative
Agent an irrevocable power of attorney (which power is coupled with an interest) to
execute and deliver, on behalf of such



49









 




Lender as assignor, any assignment agreement necessary to effectuate any assignment of
such Lender’s interests hereunder in the circumstances contemplated by this Section.




     SECTION 4.11 Mitigation. Each Secured Party agrees that if it makes any
demand for payment under Section 4.3, 4.4,
4.5 or 4.6, or if any
adoption or change of the type described in Section 4.1 shall occur with respect
to it, it will use Reasonable Efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be disadvantageous to it,
as determined in its sole discretion) to designate a different lending office if the
making of such a designation would reduce or obviate the need for the Borrowers to make
payments under Section 4.3, 4.4, 4.5, or
4.6, or would eliminate
or reduce the effect of any adoption or change described in Section 4.1.



ARTICLE V

CONDITIONS TO LOANS




     SECTION 5.1 Conditions to Closing. The obligations of the Lenders to make
the Loans shall be subject to the prior or concurrent satisfaction of each of the
conditions precedent set forth in Sections 5.1.1 through 5.1.15 below.



     SECTION 5.1.1 Resolutions, etc. The Administrative Agent shall have
received the following from each Borrower and each Guarantor:




     (a) to the extent provided by such Borrower’s or such Guarantor’s jurisdiction
of organization and/or incorporation, a copy of a good standing certificate (or
similar evidence of continued legal existence), dated a date reasonably close to the
Closing Date for each Borrower and each Guarantor; and




     (b) a certificate, dated the Closing Date, duly executed and delivered by each
Borrower’s and each Guarantor’s Secretary or Assistant Secretary, managing member or
general partner, as applicable, as to




     (i) resolutions of each Borrower’s and each Guarantor’s Board of
Directors (or other managing body, in the case of other than a corporation)
then in full force and effect authorizing, to the extent relevant, all
aspects of the transactions contemplated by the Loan Documents applicable to
such Borrower or such Guarantor and the execution, delivery and performance
of each Loan Document and the transactions contemplated hereby and thereby;




     (ii) the incumbency and signatures of those of their respective
officers, managing member or general partner, as applicable, authorized to
act with respect to each Loan Document to be executed by such Borrower or
such Guarantor; and




     (iii) the full force and validity of each Organic Document of each
Borrower and each Guarantor and copies thereof,




upon which certificates each Secured Party may conclusively rely until it shall have
received a further certificate of the Secretary, Assistant Secretary, managing
member or



50









 






general partner, as applicable, of the applicable Borrower or the applicable
Guarantor canceling or amending its prior certificate.



     SECTION 5.1.2 Certificates. The Administrative Agent shall have received the
following:




     (a) the Closing Date Certificate, dated the Closing Date and duly executed and
delivered by an Authorized Officer of each Borrower, in which certificate each
Borrower shall agree and acknowledge that the statements made therein shall be
deemed to be true and correct representations and warranties of such Borrower as of
such date; and




     (b) copies, certified by an Authorized Officer of the Cayman Borrower, of the
Closing Date Projections.



     SECTION 5.1.3 Delivery of Loan Documents; Notes. The Administrative Agent
shall have received (i) each Loan Document duly executed and delivered by an Authorized
Officer of each Borrower and each Guarantor, and (ii) for the account of each Lender that
has requested a Note, such Lender’s Notes duly executed and delivered by an Authorized
Officer of the applicable Borrower.



     SECTION 5.1.4 Collateral Security Arrangements. The Administrative Agent
shall have received the following:




     (a) each of the agreements, instruments or documents described in Item
5.1.4 of the Disclosure Schedule hereto under the caption “Closing
Date Collateral Documents,” duly executed and delivered by the parties thereto,
and




     (b) except as otherwise described in Item 5.1.4 of the Disclosure
Schedule hereto under the caption “Post Closing Date Collateral Perfection,”
evidence that each of the actions described in Item 5.1.4 of the Disclosure
Schedule hereto under the caption “Closing Date Collateral Perfection” shall have
been duly taken.


In addition, the Lenders and their counsel shall be satisfied that (i) the Liens granted
to the Collateral Agent, for the benefit of the Secured Parties, in the collateral
described in the documents referred to in clause (a) above are subject to no
equal or prior Liens (other than Permitted Liens); and (ii) no Liens exist on any of such
collateral described above other than the Liens created in favor of the Collateral Agent,
for the benefit of the Secured Parties, pursuant to a Loan Document and Permitted Liens.




     SECTION 5.1.5 Opinions of Counsel. The Administrative Agent shall have
received opinions, dated the Closing Date and addressed to the Administrative Agent, the
Collateral Agent and all Lenders, from:




     (a) Skadden, Arps, Slate, Meagher and Flom LLP, counsel to the
Borrowers, in substantially the form set forth in Exhibit H hereto; and



51









 






     (b) each of the other counsel specified in Item 5.1.5 of the
Disclosure Schedule, in the respective forms set forth hereto in Exhibit
I hereto.



     SECTION 5.1.6 Closing Fees, Expenses, etc. The Administrative Agent shall
have received for its own account, or for the account of each Lender, as the case may
be, all fees, costs and expenses due and payable pursuant to Sections 3.3 and,
if then invoiced, 10.3.



     SECTION 5.1.7 Satisfactory Legal Form. All documents and legal opinions
executed or submitted pursuant hereto by or on behalf of either Borrower or any
Guarantor shall be reasonably satisfactory in form and substance to the Lenders, the
Agents and their counsel, and the Lenders, the Administrative Agent and their counsel
shall have received all information, approvals, opinions, documents or instruments as
the Lenders, the Agents or their counsel may reasonably request.



     SECTION 5.1.8 Patriot Act Disclosures. The Administrative Agent and each
Lender shall have received all Patriot Act Disclosures requested by them prior to
execution of this Agreement.



     SECTION 5.1.9 Financial Statements. The Administrative Agent shall have
received each of the financial statements described in Item 6.5(a) and Item
6.5(b) of the Disclosure Schedule hereto.



     SECTION
5.1.10 Compliance with Warranties, No Default, etc. On the Closing
Date, the following statements shall be true and correct:




     (a) the representations and warranties set forth in each Loan Document
executed and delivered on or prior to the Closing Date shall, in each case, be true
and correct;




     (b) no Default or Event of Default shall have then occurred and be continuing;
and




     (c) no event or act shall have occurred since September 30, 2006 that could
reasonably be expected to have a Material Adverse Effect.



     SECTION 5.1.11 Solvency, etc. The Administrative Agent shall have received
a certificate substantially in the form of Exhibit J hereto from the Cayman
Borrower duly executed and delivered by an Authorized Officer of the Cayman Borrower and
dated as of the Closing Date, certifying that the Cayman Borrower and its Subsidiaries
on a consolidated basis after giving effect to the transactions contemplated hereby, are
Solvent.



     SECTION 5.1.12 Necessary Consents; Acknowledgments. The Borrowers shall
have obtained all consents and approvals of Governmental Authorities and other Persons
necessary to be obtained by the Closing Date in connection with the transactions
contemplated by the Loan Documents and each of the foregoing shall be in full force and
effect, and the Administrative Agent shall have received satisfactory evidence of such
consents and approvals. All applicable waiting periods with respect to such consents and
approvals shall have expired without any action being taken or threatened by any
competent authority which would reasonably be



52









 




expected to restrain, prevent or otherwise impose materially burdensome conditions on
the transactions contemplated by the Loan Documents or the other transactions
contemplated hereby.




     SECTION 5.1.13 Rating of Loans. The Borrowers shall have caused the Loans
to be rated by each of the Rating Agencies.



     SECTION 5.1.14 Evidence of Insurance. The Administrative Agent shall have
received certificates from the Borrowers or other evidence satisfactory to it that all
insurance required to be maintained pursuant to Section 7.1.4 is in full force
and effect.



     SECTION 5.1.15 Existing Indebtedness. On the Closing Date, the Cayman
Borrower and its Subsidiaries shall have (i) repaid in full all amounts owing under the
Senior Credit Agreement and the Bridge Credit Agreement, (ii) terminated any commitments
to lend or make other extensions of credit thereunder and (iii) delivered to
Administrative Agent all documents or instruments necessary to release all Liens securing
the obligations of the Cayman Borrower and its Subsidiaries thereunder.



     SECTION 5.2 Conditions to Revolving Loan and Synthetic Revolving Loan
Borrowings. The obligations of the Administrative Agent and the Lenders to make the
Revolving Loans or Synthetic Revolving Loans shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in Sections 5.2.1
through 5.2.4 below.



     SECTION 5.2.1 Borrowing Request. The Administrative Agent shall have
received a Borrowing Request with respect to the Revolving Loans or Synthetic Revolving
Loans, as the case may be. The delivery of a Borrowing Request by the Cayman Borrower and
the acceptance by the Cayman Borrower of the proceeds of the Revolving Loans or Synthetic
Revolving Loans, as the case may be, shall constitute a representation and warranty by
the Cayman Borrower that on the date of the making of the Revolving Loans or Synthetic
Revolving Loans (both immediately before and after giving effect to the Revolving Loans or
Synthetic Revolving Loans, respectively, and the application of the proceeds thereof)
each of the conditions set forth below shall have been satisfied.



     SECTION 5.2.2 Closing Conditions. Each of the conditions set forth in
Section 5.1 shall have been satisfied on the Closing Date.



     SECTION 5.2.3 Representations and Warranties. The representations and
warranties set forth in Article VI shall be true and correct as of the date of
the making of such Revolving Loans or Synthetic Revolving Loans, as the case may be
(except for any such representation or warranty that relates solely to a specific date,
in which case, such representation or warranty shall have been true and correct as of such
date).



     SECTION 5.2.4 No Default. No Default or Event of Default shall have
occurred and be continuing.



ARTICLE VI

REPRESENTATIONS AND WARRANTIES




53









 





     To induce the Lenders to enter into this Agreement and to make Loans and Synthetic
Revolving Deposits hereunder, each Borrower represents and warrants to each Lender as of
the date hereof as set forth in this Article VI.



     SECTION 6.1 Organization, etc. The Cayman Borrower and its Subsidiaries is
validly organized and/or incorporated and existing and (if applicable) in good standing
under the laws of the state or jurisdiction of its incorporation or organization, is duly
qualified to do business and is in good standing as a foreign entity in each jurisdiction
where the nature of its business requires such qualification except where failure to so
qualify would not, in any instance or in the aggregate, reasonably be expected to have a
Material Adverse Effect, and has full power and authority and holds all requisite
governmental licenses, permits and other approvals to own and hold under lease its
property and to conduct its business substantially as currently conducted by it. Each
Borrower and each Guarantor has full power and authority and holds all requisite
governmental licenses, permits and other approvals to enter into and perform its
Obligations under each Loan Document to which it is a party.



     SECTION 6.2 Due Authorization, Non-Contravention, etc. The (i) execution,
delivery and performance by each Borrower and each Guarantor of the Loan Documents
executed or to be executed by it, (ii) participation of the Cayman Borrower and its
Subsidiaries in the consummation of all aspects of the transactions contemplated by the
Loan Documents, and (iii) execution, delivery and performance by the Cayman Borrower and its
Subsidiaries of the agreements executed and delivered by it in connection with the
transactions contemplated by the Loan Documents are in each case within such Person’s
powers, have been duly authorized by all necessary action, and do not




     (a) contravene any (i) of such Person’s Organic Documents, (ii) court decree
or order binding on or affecting such Person or (iii) law or governmental
regulation binding on or affecting any such Person; or




     (b) result in (i) or require the creation or imposition of, any Lien on either
Borrower’s or any Material Guarantor’s properties (except as permitted by the Loan
Documents) or (ii) a default under any contractual restriction binding on or
affecting either Borrower’s or any Material Guarantor.



     SECTION
6.3 Government Approval, Regulation, etc.



     (a) No authorization or approval or other action by, and no notice to or filing
with, any Governmental Authority or other Person (other than those that have been, or on
the Effective Date will be, duly obtained or made and which are, or on the Effective Date
will be, in full force and effect) is required for the consummation of the transactions
contemplated by the Loan Documents or the due execution, delivery or performance by the
Cayman Borrower and its Subsidiaries of any Loan Document to which any of them is a
party, in each case by the parties thereto or the consummation of the transactions
contemplated by the Loan Documents. Neither the Cayman Borrower nor any of its
Subsidiaries is an “investment company” within the meaning of the Investment Company Act
of 1940, as amended.



54









 





     (b) The Cayman Borrower and its Subsidiaries are in compliance with all laws,
rules, regulations and orders applicable to the conduct of its business or the ownership
of its properties, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.



     SECTION 6.4 Validity, etc. Each Loan Document to which either Borrower or
any Guarantor is a party constitutes the legal, valid and binding obligations of each
such Person, enforceable against each such Person in accordance with their respective
terms (except, in any case, as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights
generally and by principles of equity, and except to the extent specified in the relevant
legal opinions addressed to the Lenders and delivered on the Closing Date).



     SECTION 6.5 Financial Information.



     (a) Except as set forth therein, each of the financial statements described in Item
6.5(a) of the Disclosure Schedule (including the financial statements as at September 30,
2006) hereto have been furnished to the Administrative Agent and each Lender and have
been prepared in accordance with GAAP (or the other accounting principles specified on
said Schedule) consistently applied (other than with respect to the allocation of the
purchase price Ashmore Energy International Limited paid for the purchase of its interest
in Prisma Energy International Inc. in 2006, which allocation has not been completed as
of this date), and present fairly the consolidated or consolidating (as the case may be)
financial condition, results of operations and all cashflows of the Persons covered
thereby as at the dates thereof and the results of their operations for the periods then
ended.



     (b) Each
of the pro forma financial statements described in Item
6.5(b) of the Disclosure Schedule (including the Closing Date Projections) hereto
have been furnished to the Administrative Agent and each Lender and have been prepared in
good faith by the Borrowers, based on assumptions believed by the Borrowers on the
Closing Date to be reasonable, are based on the best information available to the
Borrowers as of the date of delivery thereof, accurately reflect all adjustments required
to be made to give effect to the transactions contemplated by the Loan Documents, and
present fairly on a pro forma basis the financial condition of the Persons
covered thereby as of such date and the pro forma results of operations for such
period, assuming that the relevant transactions had actually occurred at such date or at
the beginning of such period, as the case may be.



     SECTION 6.6 No Material Adverse Change; Solvency. No event or act has
occurred since September 30, 2006 that could reasonably be expected to have a Material
Adverse Effect. The Cayman Borrower, both immediately before and immediately after giving
effect to the transactions contemplated by the Loan Documents, is Solvent.



     SECTION 6.7 Litigation. There is no pending or, to the knowledge of the
Cayman Borrower or any of its Subsidiaries, threatened litigation, action or proceeding




     (a) except as disclosed in Item 6.7 of the Disclosure Schedule,
affecting the Cayman Borrower or any of its Subsidiaries, or any of their
respective properties,



55









 






businesses, assets or revenues, which could reasonably be expected to have a
Material Adverse Effect, and no adverse development has occurred in any
litigation, arbitration or governmental investigation or proceeding disclosed in
Item 6.7 of the Disclosure Schedule; or




     (b) which purports to affect the legality, validity or enforceability of
any Loan Document or the transactions contemplated by the Loan Documents.



     SECTION 6.8 Subsidiaries. The Cayman Borrower has no Subsidiaries, except
those Subsidiaries which are identified in Item 6.8 of the Disclosure Schedule.
The U.S. Borrower has no Subsidiaries.



     SECTION 6.9 Ownership of Properties. The Cayman Borrower and its
Subsidiaries own good and marketable title to, valid leasehold interests in all of their
respective properties and assets, real and personal, tangible and intangible, of any
nature whatsoever (including patents, trademarks, trade names, service marks and
copyrights), free and clear of all Liens, charges or claims (including infringement
claims with respect to patents, trademarks, copyrights and the like) except as permitted
pursuant to Section 7.2.3 or where the failure to have such good and marketable
title would not reasonably be expected to have a Material Adverse Effect.



     SECTION 6.10 Taxes. The Cayman Borrower and its Subsidiaries have filed all
U.S. federal and all other material tax returns and reports required by law to have been
filed by it and has paid all Taxes thereby shown to be due and owing, except any such
Taxes which are being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set aside on its
books.



     SECTION
6.1l Pension and Welfare Plans. During the 12-consecutive-month
period prior to the Closing Date, no steps have been taken to terminate any Pension Plan,
and no contribution failure has occurred with respect to any Pension Plan sufficient to
give rise to a Lien under Section 302(f) of ERISA. No condition exists or event or
transaction has occurred with respect to any Pension Plan which might result in the
incurrence by either Borrower or any member of the Controlled Group of any material
liability, fine or penalty. Except as disclosed in Item 6.11 of the Disclosure
Schedule, neither the Cayman Borrower, its Subsidiaries nor any member of the Controlled
Group has any contingent liability with respect to any post-retirement benefit under a
Welfare Plan, other than liability for continuation coverage described in Part 6 of Title
I of ERISA.



     SECTION 6.12 Environmental Warranties. Except as set forth in Item 6.12 of
the Disclosure Schedule:




     (a) all facilities and property (including underlying groundwater) owned,
operated or leased by either the Cayman Borrower or any of its Subsidiaries have
been, and continue to be, owned, operated or leased by either the Cayman Borrower or
any of its Subsidiaries in material compliance with all Environmental Laws;




     (b) there have been no past, and there are no pending or threatened (i) claims,
complaints, notices or requests for information received by either the Cayman
Borrower or any of its Subsidiaries with respect to any actual or alleged material
violation of any



56









 






Environmental Law, or (ii) complaints, notices or inquiries to either the Cayman
Borrower or any of its Subsidiaries regarding any actual or potential material
liability under any Environmental Law;




     (c) there have been no releases of Hazardous Materials at, on, from or under
any property now or previously owned or leased by either the Cayman Borrower or any
of its Subsidiaries that have, or could reasonably be expected to have, a Material
Adverse Effect;




     (d) the Cayman Borrower and its Subsidiaries have been issued and
maintained in full force and effect, and are in material compliance with, all
material permits, certificates, approvals, licenses and other
authorizations relating to environmental matters;




     (e) there are no underground storage tanks, active or abandoned, including
petroleum storage tanks, on or under any property now or previously owned or leased
by the Cayman Borrower or any of its Subsidiaries that, singly or in the aggregate,
have, or could reasonably be expected to have, a Material Adverse Effect;




     (f) neither the Cayman Borrowers nor any of its Subsidiaries has directly
transported or directly arranged for the transportation of any Hazardous Material
to any location which is the subject of enforcement actions by any Governmental
Authority or other investigations which may lead to material claims against the
Cayman Borrower or such Subsidiary for any remedial work, damage to natural
resources or personal injury;




     (g) there are no polychlorinated biphenyls or friable asbestos present at any
property now or previously owned or leased by either the Cayman Borrower or any of
its Subsidiaries that, singly or in the aggregate, have, or could reasonably be
expected to have, a Material Adverse Effect; and




     (h) no conditions exist at, on or under any property now or previously owned
or leased by the Cayman Borrower which, with the passage of time, or the giving of
notice or both, would give rise to material liability under any Environmental Law.



     SECTION 6.13 Accuracy of Information. None of the factual information
heretofore or contemporaneously furnished in writing to any Secured Party by or on behalf
of the Cayman Borrower or any of its Subsidiaries in connection with any Loan Document or
any transaction contemplated hereby contains any untrue statement of a material fact, or
omits to state any material fact necessary to make such factual information not
misleading, and no other factual information hereafter furnished in connection with any
Loan Document by or on behalf of the Cayman Borrower or any of its Subsidiaries to any
Secured Party will contain any untrue statement of a material fact or will omit to state
any material fact necessary to make such factual information not misleading on the date
as of which such information is dated or certified. This representation shall not apply
to the Closing Date Projections or information of a general economic or general industry
nature furnished to any Secured Party by or on behalf of the Cayman Borrowers or any of
its Subsidiaries.




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     SECTION 6.14 Regulations U and X. Neither the Cayman Borrower nor any of
its Subsidiaries is engaged in the business of extending credit for the purpose of
buying or carrying margin stock, and no proceeds of any Loans will be used to purchase
or carry margin stock or otherwise for a purpose which violates, or would be
inconsistent with, F.R.S. Board Regulation U or Regulation X. Terms for which meanings
are provided in F.R.S. Board Regulation U or Regulation X or any regulations substituted
therefor, as from time to time in effect, are used in this Section with such meanings.



     SECTION 6.15 Absence of Any Undisclosed Liabilities. As of the Closing
Date, there are no liabilities of the Cayman Borrowers or its Subsidiaries of any kind
whatsoever, whether accrued, contingent, absolute, determined, determinable or
otherwise, other than those liabilities provided for or disclosed in the financial
statements delivered on or prior to the Closing Date or those liabilities which could
not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect.



     SECTION
6.16 Labor Matters. (a) Neither the Cayman Borrower nor any of its
Subsidiaries is a party to any labor dispute that could reasonably be expected to have a
Material Adverse Effect and there are no strikes or walkouts relating to any labor
contracts to which such Person is a party or is otherwise subject; (b) there is no unfair
labor practice complaint pending against either the Cayman Borrower or any of its
Subsidiaries or, to the knowledge of the Cayman Borrower, threatened against any of them
that could reasonably be expected to have a Material Adverse Effect; (c) there is no
grievance or significant arbitration proceeding arising out of or under any collective
bargaining agreement pending against the Cayman Borrower or any of its Subsidiaries or,
to the knowledge of the Cayman Borrower, threatened against any of them that could
reasonably be expected to have a Material Adverse Effect; (d) no slowdown or stoppage is
pending against the Cayman Borrower or any of its Subsidiaries, or to the knowledge of
the Cayman Borrower, threatened against the Cayman Borrower or any of its Subsidiaries,
that could reasonably be expected to have a Material Adverse Effect; (e) neither the
Cayman Borrower nor any of its Subsidiaries is engaged in any unfair labor practice that
could reasonably be expected to have a Material Adverse Effect; and (f) except as set
forth in Item 6.16 of the Disclosure Schedule (none of which items disclosed
therein, individually or in the aggregate, have, or could reasonably be expected to have,
a Material Adverse Effect), there are no pending or threatened claims, complaints,
notices, inquiries or requests for information received by the Cayman Borrower or any of
its Subsidiaries with respect to any alleged violation of, or potential liability under,
any law relating to employee health and safety which could reasonably be expected to
result in liability to such Borrower or such Subsidiary in an aggregate amount exceeding
$50,000,000 (exclusive of amounts fully covered by insurance (less any applicable
deductible) and as to which the insurer has acknowledged its responsibility to cover) or
which could reasonably be expected to result in a Material Adverse Effect. Except as set
forth in Item 6.16 of the Disclosures Schedule, neither the Cayman Borrower nor
any of its Subsidiaries is a party to or bound by any collective bargaining agreement.



     SECTION 6.17 Legal Form. This Agreement and each other Loan Document to
which either Borrower or any Guarantor is a party is in proper legal form under the law
that governs this Agreement or such Loan Document and is enforceable against each
Borrower and each Guarantor in accordance with its terms under the law of organization
of such Borrower or such Guarantor (except, in any case, as such enforceability may be
limited by applicable bankruptcy,



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insolvency, reorganization or similar laws affecting creditors’ rights generally and by
principles of equity, and except to the extent specified in the relevant legal opinions
addressed to the Lenders and delivered on the Closing Date). All formalities required,
with respect to this Agreement and each other Loan Document to which either Borrower or
any Guarantor is a party, in the jurisdiction of organization of such Borrower or such
Guarantor, for the validity and enforceability of this Agreement and each such other Loan
Document (including any necessary registration, recording or filing with any court or
other authority) have been accomplished, and, except as set forth in Item 6.17 of
the Disclosure Schedule hereto, no stamp, registration or similar Taxes are required to
be paid in connection with the Loan Documents and, except as set forth in Item
6.17 of the Disclosure Schedule hereto, no notarization is required, for the validity
and enforceability thereof.




     SECTION 6.18 Ranking. This Agreement and each other Loan Document to which
either Borrower or any Guarantor is a party and the obligations evidenced hereby and
thereby are and will at all times be direct and unconditional general obligations of such
Borrower or such Guarantor and rank and will at all times rank in right of payment and
otherwise at least pari passu with all other senior secured Indebtedness (other
than any such Indebtedness to the extent that such Indebtedness is Cash Collateralized)
of such Borrower or such Guarantor, whether now existing or hereafter outstanding.



     SECTION 6.19 Collateral. Set forth in Item 6.19(a) of the Disclosure
Schedule is a complete and accurate description as of the Closing Date of the authorized
Capital Securities of each Subsidiary to be pledged on the Closing Date in accordance
with the Security Agreements by class, and, as of the Closing Date, a description of the
number of shares, units or other interest of each such class that are issued and
outstanding. Other than as described in Item 6.19 of the Disclosure Schedule, as
of the Closing Date, there are no subscriptions, options, warrants, or calls relating to
any shares of such Capital Securities, including any right of conversion or exchange
under any outstanding security or other instrument. All such Capital Securities have been
duly authorized and validly issued, and (to the extent applicable) are fully paid and
nonassessable.



     SECTION 6.20 Commercial Activity; Absence of Immunity. Each Borrower and
each Guarantor is subject to civil and commercial law with respect to its obligations
under each of the Loan Documents to which it is a party. The execution, delivery and
performance by each Borrower and each Guarantor of each Loan Document to which it is (or
will be) a party constitute private and commercial acts rather than public or
governmental acts. Neither of the Borrowers nor any Guarantor, nor any of their
respective properties or revenues, is entitled to any right of immunity in any
jurisdiction from suit, court jurisdiction, judgment, attachment (whether before or after
judgment), set-off or execution of a judgment or from any other legal process or remedy
relating to the obligations of either Borrower or any Guarantor under any of the Loan
Documents to which it is a party.



     SECTION 6.21 Subsidiary Distributions. Except as disclosed in Item
6.21 of the Disclosure Schedule, neither the Cayman Borrower nor any of its
Subsidiaries is party to any agreement prohibiting or restricting the ability of such
Person to make any payments, directly or indirectly, the Cayman Borrower, including by
way of dividends, advances, repayments of loans,



59









 




reimbursements of management and other intercompany charges, expenses or accruals or
other returns on investments.




ARTICLE VII

COVENANTS




     SECTION 7.1 Affirmative Covenants. Each Borrower agrees with each Lender
and the Administrative Agent that until the Termination Date has occurred, the Borrowers
will, and the Cayman Borrower will cause its Subsidiaries to, perform or cause to be
performed the obligations set forth below.



     SECTION 7.1.1 Financial Information, Reports, Notices, etc. The Borrowers
will furnish to the Administrative Agent, who will distribute to each Lender, copies of
the following financial statements, reports, notices and information:




     (a) as soon as available and in any event within 60 days after the end of
each of the first three Fiscal Quarters of each Fiscal Year, the following:




     (i) unaudited consolidated balance sheets of the Cayman Borrower and
its Subsidiaries as of the end of such Fiscal Quarter and consolidated
statements of income and cash flow of the Cayman Borrower and its
Subsidiaries for such Fiscal Quarter and for the period commencing at the
end of the previous Fiscal Year and ending with the end of such Fiscal
Quarter, and including (in each case), in comparative form the figures for
the corresponding Fiscal Quarter in, and year to date portion of, the
immediately preceding Fiscal Year (except with respect to the 2005 Fiscal
Year), certified as complete and correct by the chief financial or
accounting Authorized Officer of the Cayman Borrower as fairly presenting
the financial condition, the results of operations, all cash flows of the
Cayman Borrower and its Subsidiaries in accordance with GAAP (subject to
normal year-end audit adjustments), and




     (ii) an unaudited balance sheet of the Cayman Borrower as of the end
of such Fiscal Quarter and statements of income and cash flow of the
Cayman Borrower for such Fiscal Quarter and for the period commencing at
the end of the previous Fiscal Year and ending with the end of such Fiscal
Quarter, and including (in each case), in comparative form the figures for
the corresponding Fiscal Quarter in, and year to date portion of, the
immediately preceding Fiscal Year, certified as complete and correct by
the chief financial or accounting Authorized Officer of the Cayman
Borrower as fairly presenting the financial condition, the results of
operations and the cash flows of the Cayman Borrower in accordance with
GAAP (subject to normal year-end audit adjustments);




     (b) as soon as available and in any event within 90 days after the end of
each Fiscal Year (or in the case of Fiscal Year ending 2006, by May 30, 2007), the
following:




     (i) a copy of the consolidated balance sheet of the Cayman Borrower
and its Subsidiaries, and the related consolidated statements of income
and cash flow of the Cayman Borrower and its Subsidiaries for such Fiscal
Year (in each



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case with the notes thereto), setting forth in comparative form the figures for
the immediately preceding Fiscal Year (except with respect to the 2005 Fiscal
Year), audited (without any Impermissible Qualification) by Deloitte & Touche LLP
(or other independent public accountants reasonably acceptable to the Required
Lenders), and




     (ii) an audited balance sheet of the Cayman Borrower as of the end of such
Fiscal Year and statements of income and cash flow of the Cayman Borrower for
such Fiscal Year, setting forth in comparative form the figures for the
immediately preceding Fiscal Year (except with respect to the 2005 Fiscal Year),
audited (without any Impermissible Qualification) by Deloitte & Touche LLP (or
other independent public accountants reasonably acceptable to the Required
Lenders);




provided, however, that, from and after the date on which the
Cayman Borrower becomes a “foreign private issuer” (as defined in the Exchange
Act) as a result of the initial public sale of the equity securities of the
Cayman Borrower, the Borrowers shall be deemed to have satisfied their
obligations under this clause (b) if they deliver to the Administrative Agent
(who will distribute to each Lender) a copy of the Cayman Borrower’s annual
report on Form 20-F as and when required under the rules and regulations of the
applicable United States exchange on which such equity securities are traded;




     (c) concurrently with the delivery of the financial information pursuant to
clauses (a) and (b), a Compliance Certificate, executed by the chief financial
or accounting Authorized Officer of the Cayman Borrower, (i) showing compliance with the
financial covenants set forth in Section 7.2.4, (ii) stating that no Default has
occurred and is continuing (or, if a Default has occurred, specifying the details of
such Default and the action that the Cayman Borrower or any applicable Subsidiary has
taken or proposes to take with respect thereto), and (iii) in the case of a Compliance
Certificate delivered concurrently with the financial information pursuant to clause
(b), a report on financial covenants by Deloitte & Touche LLP (or other independent
accountants reasonably acceptable to the Required Lenders) stating that nothing has come
to their attention that causes them to believe that the Borrowers have failed to comply
with the covenants of Section 7.2.4, insofar as such Sections or such
calculation relate to financial and accounting matters, and (iv) describing any
amendment to or modification of any power purchase agreement (except those entered into
pursuant to a public tender), any concession agreement or any supply agreement with a
stated term of one year or longer and with respect to which the aggregate amount payable
thereunder in any year could reasonably be expected to be more than $10,000,000 entered
into by the Cayman Borrower or any of its Subsidiaries during the most-recently ended
Fiscal Quarter, or any new power purchase agreement (other than those entered into
pursuant to a public tender), any concession agreement or any supply agreement with a
stated term of one year or longer and with respect to which the aggregate amount payable
thereunder in any year could reasonably be expected to be more than $10,000,000 entered
into by the Cayman Borrower or any of its Subsidiaries during the most-recently ended
Fiscal Quarter, which description shall be in reasonable detail and shall include a
summary of



61









 







the provisions thereof that could reasonably be expected to have a financial
impact on the Cayman Borrower or any of its Subsidiaries (including a change in
revenue or a change in the cost of goods sold) and shall certify that the Cayman
Borrower does not believe that such amendment, modification or new agreement could
reasonably be expected to result in an Event of Default;




     (d) as soon as possible and in any event within ten Business Days after either
Borrower obtains knowledge of the occurrence of a Default, a statement of an
Authorized Officer of the Cayman Borrower setting forth details of such Default and
the action which the Cayman Borrower has taken and proposes to take with respect
thereto;




     (e) as soon as possible and in any event within ten Business Days after either
Borrower obtains knowledge of (i) any development in any existing litigation,
action, proceeding or labor controversy that could reasonably be expected to result
in liability to either Borrower of $10,000,000 or more (or the equivalent in other
currencies), or (ii) the commencement of any litigation, action, proceeding or
labor controversy that could reasonably be expected to result in liability to
either Borrower of $10,000,000 or more (or the equivalent in other currencies);




     (f) promptly after the sending or filing thereof, copies of all reports,
notices, prospectuses and registration statements that the Cayman Borrower files
with the SEC or any national securities exchange;




     (g) promptly upon becoming aware of (i) the institution of any steps by any
Person to terminate any Pension Plan, (ii) the failure to make a required
contribution to any Pension Plan if such failure is sufficient to give rise to a
Lien under Section 302(f) of ERISA, (iii) the taking of any action with respect to
a Pension Plan which could result in the requirement that any Subsidiary furnish a
bond or other security to the PBGC or such Pension Plan, or (iv) the occurrence of
any event with respect to any Pension Plan which could result in the incurrence by
any Subsidiary of any material liability, fine or penalty, notice thereof and
copies of all documentation relating thereto;




     (h) promptly upon receipt thereof, copies of all “management letters”
relating to material weaknesses submitted to the Cayman Borrower by the
independent public accountants referred to in clause (b) in connection
with each audit made by such accountants; and




     (i) such other financial and other information as any Lender through the
Administrative Agent may from time to time reasonably request (including
information and reports in such detail as the Administrative Agent may reasonably
request with respect to the terms of and information provided pursuant to the
Compliance Certificate).



     SECTION 7.1.2 Maintenance of Existence; Compliance with Laws, etc. Each
Borrower will, and the Cayman Borrower will cause each of its Subsidiaries to, preserve
and maintain its legal existence (except as otherwise permitted by Section
7.2.10), and comply (except to the extent that the failure to comply could not
reasonably be expected to have a Material Adverse Effect) in all respects with (a)
except as set forth in Item 7.1.2(a) of the Disclosure Schedule, the



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terms of (and shall perform or cause the applicable Subsidiary to perform) its
obligations under all agreements to which it is a party and (b) except as set forth on
Item 7.1.2(b) of the Disclosure Schedule, all applicable laws, rules, regulations
and orders, including the payment (before the same become delinquent), of all Taxes,
imposed upon the Cayman Borrower or its Subsidiaries or upon their property except to the
extent being diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with Local GAAP have been set aside on the books of such
Borrower or its Subsidiaries, as applicable.




     SECTION 7.1.3 Maintenance of Properties. Except as set forth in Item
7.1.3 of the Disclosure Schedule, each Borrower will, and the Cayman Borrower will
cause each of its Subsidiaries to, maintain, preserve, protect and keep its and their
respective properties in good repair, working order and condition (ordinary wear and tear
excepted), and make necessary repairs, renewals and replacements so that the business
carried on by the Cayman Borrower and its Subsidiaries may be properly conducted at all
times (except to the extent that the failure to comply could not reasonably be expected
to have a Material Adverse Effect), unless the Cayman Borrower or its Subsidiary
determines in good faith that the continued maintenance of such property is no longer
economically desirable, necessary or useful to the business of such Borrower or any of
its Subsidiaries or the Disposition of such property is otherwise permitted by
Section 7.2.10 or 7.2.11.



     SECTION 7.1.4 Insurance. Each Borrower will, and the Cayman Borrower will
cause each of its Subsidiaries to maintain:




     (a) insurance on its property with financially sound and reputable insurance
companies against loss and damage (i) that is consistent with prudent utility
practice, or (ii) in at least the amounts (and with only those deductibles)
customarily maintained, and against such risks (including fire and other risks
insured against by extended coverage) as are typically insured against in the same
general area, by Persons of comparable size engaged in the same or similar business
as the Cayman Borrower and its Subsidiaries;




     (b) liability insurance in customary amounts for companies of comparable size
engaged in the same or similar business of the Cayman Borrower and its
Subsidiaries; and




     (c) all worker’s compensation, employer’s liability insurance or similar
insurance as may be required under the laws of any state or jurisdiction in which
it may be engaged in business.



     SECTION 7.1.5 Books and Records. Each Borrower will, and the Cayman Borrower
will cause each of its Subsidiaries to, keep books and records in accordance with the
applicable local jurisdiction’s generally accepted accounting principles (which, in the
case of each Borrower, is GAAP) and, to the extent those principles are not GAAP,
reconciled by the Borrowers to GAAP, which accurately reflect all of its business affairs
and transactions and permit each Lender and each Agent and any of their respective
representatives, at reasonable times and intervals upon reasonable notice to, and
coordination with, the Borrowers, to visit each Borrower’s and each of the Cayman
Borrower’s Subsidiary’s offices, to discuss such Subsidiary’s financial matters with its
officers and employees, and its independent public



63









 




accountants (and, to the extent its independent public accountant so permits, the
Borrowers hereby authorize such independent public accountant to discuss each
Subsidiary’s financial matters with each Lender or Agent or their representatives whether
or not any representative of such Borrower or such Subsidiary is present) and to examine
(and photocopy extracts from) any of its books and records, provided that the
Borrowers shall have no obligation to cause Trakya to comply with this Section
7.1.5. During the continuance of any Event of Default (but not otherwise), the
Borrowers shall pay all of the costs and expenses of each Lender and each Agent in
connection with any visit made pursuant to this Section 7.1.5, including the
expenses and any fees of any such independent public accountant.




     SECTION 7.1.6 Environmental Law Covenant. Each Borrower will, and the Cayman
Borrower will cause each of its Subsidiaries to,




     (a) except as set forth in Item 7.1.6 of the Disclosure Schedule, use
and operate all of its and their facilities and properties in material compliance
with all applicable Environmental Laws, keep all necessary permits, approvals,
certificates, licenses and other authorizations relating to environmental matters
in full force and effect and remain in material compliance therewith, and handle
all Hazardous Materials in material compliance with all applicable Environmental
Laws. For purposes of this Section 7.1.6(a), non-compliance by the
Cayman Borrower or any of its Subsidiaries with any applicable Environmental Law
shall be deemed not to constitute a breach of this covenant provided that,
upon learning of any actual or suspected non-compliance, such Borrower and the
relevant Subsidiaries shall promptly undertake all Reasonable Efforts to achieve
compliance (or, if applicable, contest in good faith by appropriate proceedings the
applicable Environmental Law at issue and (to the extent required by Local GAAP)
provide on the books of the Cayman Borrower or any of its Subsidiaries, as the case
may be, reserves in conformity with Local GAAP with respect thereto), and
provided further that, in any case, such non-compliance, and
any other non-compliance with Environmental Law, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect;
and




     (b) promptly notify the Administrative Agent and provide copies upon receipt
of all written claims, complaints, notices or inquiries relating to the condition
of its facilities and properties in respect of, or as to compliance with,
Environmental Laws, except to the extent that any resolution regarding the same
could not reasonably be expected to result in an aggregate liability to the Cayman
Borrower and its Subsidiaries of $10,000,000 or more, and shall promptly resolve
any material non-compliance with Environmental Laws (except to the extent that the
material non-compliance thereof is currently being contested in good faith by
appropriate proceedings) and use Reasonable Efforts to keep its property free of
any Lien imposed by any Environmental Law.



     SECTION 7.1.7 Use of Proceeds. Each Borrower will apply the proceeds of the
Term Loans to satisfy and discharge all amounts owing under the Senior Credit Agreement
and the Bridge Credit Agreement on the Closing Date, and the Cayman Borrower will apply
the proceeds of the Revolving Loans for general corporate purposes, including to make
Investments permitted hereunder or otherwise permitted by the Lenders.



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     SECTION 7.1.8 Collateral Requirements and Further Assurances. Each Borrower
will, and the Cayman Borrower will cause each of its Subsidiaries to:




     (a) execute any documents, agreements and instruments, and take all further
action that may be required under applicable law, or that the Administrative Agent
may reasonably request, in order to effectuate the transactions contemplated by the
Loan Documents and in order to grant, preserve, protect and perfect the validity of
the Liens (which shall be subject to no equal or prior Liens other than Permitted
Liens) created or intended to be created pursuant to the Loan Documents, which for
the avoidance of doubt will not include Liens with respect to the Cayman Borrower’s
interest, if any, in Prisma Energy Accroven Holdings Ltd., Prisma Energy Panama
Holdings Ltd. or Prisma Energy Guatemala Holdings Ltd. In addition, each Borrower
will, and the Cayman Borrower will cause each of its Subsidiaries to do each of the
things described in Item 7.1.8 of the Disclosure Schedule by the respective
dates specified therein,




     (b) execute any documents, agreements and instruments, and take all further
action that may be required under applicable law, or that the Administrative Agent
may reasonably request, in order to grant, preserve, protect and perfect the
validity of a Lien on the (i) Capital Securities of Subsidiaries of the Cayman
Borrower representing the highest level holding company holding the Capital
Securities of a Subsidiary acquired by the Cayman Borrower or any of its
Subsidiaries after the Closing Date, (ii) secured loans made by the Cayman Borrower
to any of its Subsidiaries, in each case, to the extent such Capital Securities or
secured loans, as applicable, are not subject to an existing Lien securing the
Obligations,




     (c) execute any documents, agreements and instruments, and take all further
action that may be required under applicable law, or that the Administrative Agent
may reasonably request, in order to cause, to the extent not prohibited by
applicable law or any contractual limitation applicable to it, each newly acquired
or formed Subsidiary (acquired or formed after the Closing Date) that is a top-tier
holding company Subsidiary of the Cayman Borrower holding (directly or indirectly)
the Capital Securities of any operating-level company of the Cayman Borrower, to
become a party to the applicable Guaranty as a guarantor thereunder, and




     (d) promptly notify the Administrative Agent in writing of secured loans made
by the Cayman Borrower to ETB — Energia Total do Brasil Ltda., and execute any
documents, agreements and instruments, and take all further action that may be
required under applicable law, or that the Administrative Agent may reasonably
request, in order to grant, preserve, protect and perfect the validity of a Lien on
such secured loans.



     SECTION 7.1.9 Hedging Obligations. Each Borrower shall comply with the
policy regarding entering into Hedging Agreements and incurring Hedging Obligations
described in Item 7.1.9 of the Disclosure Schedule.



     SECTION 7.1.10 Post-Closing Covenant. The Cayman Borrower shall deliver,
furnish and/or cause to be furnished to the Collateral Agent, within 30 days after the
Closing Date, all certificates, instruments and other documents representing all Capital
Securities of Prisma



65









 




Energy Brazil Finance Ltd. being pledged pursuant to the applicable Security Agreements
with all necessary and appropriate instruments of transfer or assignment duly endorsed
in blank.




     SECTION 7.2 Negative Covenants. Each Borrower covenants and agrees with
each Lender and the Administrative Agent that until the Termination Date has occurred,
such Borrower will, and the Cayman Borrower will cause its Subsidiaries to, perform or
cause to be performed the obligations set forth below.



     SECTION 7.2.1 Business Activities. Each Borrower will not, and the Cayman
Borrower will not permit any of its Subsidiaries (other than Promigas) to, engage in any
business activities except businesses in connection with the energy industry (including
energy generation, production, transmission, distribution, services and storage) and
activities reasonably incidental thereto. The Cayman Borrower will not permit Promigas
to cease to be principally engaged in businesses in connection with the energy industry
(including energy generation, production, transmission, distribution, services and
storage) and activities reasonably incidental thereto.



     SECTION 7.2.2 Indebtedness. Each Borrower will not, and the Cayman Borrower
will not permit any of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, other than:




     (a) the Loans, and refinancings of the Loans so long as in respect of the
refinancing of the Loans, the following conditions are met:




     (i) the covenants for such refinancing Indebtedness shall not be more
restrictive in any material respect than the covenants in this Agreement as
in effect at the time of such refinancing, and




     (ii) the amortization schedule of such refinancing Indebtedness shall
be identical to the remaining amortization schedule of the Loans or have a
weighted average life to maturity longer than that of the remaining
weighted average life to maturity of the Loans;




     (b) Subordinated Debt;




     (c) (i) Indebtedness outstanding as of the Effective Date and (ii) any
refinancing of such Indebtedness (and any subsequent refinancing of any refinancing
Indebtedness permitted by this Section 7.2.2(c)) so long as:




     (1) the principal amount of such refinancing Indebtedness is not
in excess of that which is outstanding on the Effective Date together
with all premiums, make-whole payments and accrued and unpaid
interest, and reasonable fees and expenses incurred in connection
with such refinancing and the tenor or weighted average life to
maturity of such indebtedness is longer than that of the Indebtedness
being refinanced, and




     (2) such refinancing does not contain any restriction
on payments to the Cayman Borrower more restrictive than any such
payment restriction contained in the Indebtedness being refinanced,
replaced or




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refunded or in the reasonable opinion of the Administrative Agent, such
payment restrictions are consistent with customary market terms for a
financing of its nature and do not adversely affect the ability of either
Borrower to satisfy the Obligations;




provided, that the restrictions set forth in clause (1) shall not apply
to the initial refinancing after the Closing Date of any financing existing as of the
Closing Date with respect to any Subsidiary of the Cayman Borrower listed under the
heading “Cuiaba Structure” in Item 6.8 of the Disclosure Schedule, Puerto
Quetzal Power LLC or Trakya so long as the financial terms of any such refinancings are
consistent with the Closing Date Projections.




     (d) Indebtedness of Subsidiaries of the Cayman Borrower (i) that is unsecured and is
incurred in the ordinary course of business of the Cayman Borrower and its Subsidiaries
(including open accounts extended by suppliers on normal trade terms in connection with
purchases of goods and services which are not overdue for a period of more than 180 days
or, if overdue for more than 180 days, as to which a dispute exists and adequate reserves
in conformity with Local GAAP have been established on the books of the applicable
Subsidiary), excluding Indebtedness for borrowed money, (ii) in respect of performance,
surety or appeal bonds provided in the ordinary course of business, but excluding (in
each case), Indebtedness incurred through the borrowing of money or Contingent
Liabilities in respect thereof, and (iii) constituting reimbursement obligations in
respect of trade or performance letters of credit entered into in the ordinary course of
business;




     (e) Indebtedness (i) evidencing the deferred purchase price of property or services
used in the ordinary course of business of such Subsidiary (provided that such
Indebtedness is incurred within 60 days of the acquisition of such property), and
refinancings of such Indebtedness, and (ii) in respect of Capitalized Lease Liabilities;
provided, that the holders of such Indebtedness do not have recourse to any
property or assets other than the property to be acquired or that is the subject of such
Capitalized Lease Liabilities; provided, further, that the aggregate
amount of all such Indebtedness in respect of the Cayman Borrower (and its Subsidiaries
existing on the Effective Date) shall not exceed $50 million outstanding at any time;




     (f) Indebtedness of any Subsidiary of the Cayman Borrower that was acquired by the
Cayman Borrower after the Closing Date pursuant to Section 7.2.10(b) or that was
formed after the Closing Date for the single purpose of making an acquisition permitted
by Section 7.2.10(b) (a “Qualified New Subsidiary”) and any refinancing
of such Indebtedness, so long as (x) the holders of such Indebtedness do not have
recourse to any Person other than such Subsidiary (and any other Subsidiary acquired
after the Closing Date pursuant to Section 7.2.10(b) and any other Person to the
extent of the Capital Securities held by such Person in such Subsidiary) and (y) the
Capital Securities of the direct or indirect owner of such Subsidiary that are held by
the Cayman Borrower are pledged to the Collateral Agent;



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     (g) Hedging Obligations (i) required or permitted to be entered into pursuant to
Section 7.1.9, and (ii) in respect of fuel hedges entered into in the ordinary
course of business and not for speculative purposes; provided, that any secured
Hedging Obligations of the Borrowers shall only be entered into with the Lenders and
their Affiliates;




     (h) secured Indebtedness and any refinancing thereof of the Cayman Borrower if the
Cayman Borrower shall have furnished notice to the Administrative Agent of the
Indebtedness on or before the date information concerning the Indebtedness is publicly
announced and certification that immediately after giving effect to such
Indebtedness (1) the Consolidated Leverage Ratio will be less than 3.5, (2) the
Stand-alone Interest Coverage Ratio will be greater than 1.5 and (3) the Collateral
Coverage Ratio will be greater than 1.75, all calculated to give pro forma
effect to such Indebtedness; provided, that the aggregate principal amount of
such secured Indebtedness shall not exceed $500 million at any time outstanding unless
and to the extent that each of Moody’s and S&P has affirmed a rating of the Loans of not
less than the rating of the Loans as of the Closing Date after giving effect to the
incurrence of such secured Indebtedness;




     (i) Indebtedness of Subsidiaries of the Cayman Borrower (other than the U.S.
Borrower) used to finance Capital Expenditures or working capital of such Subsidiaries
in the ordinary course of business in an aggregate amount not to exceed $100 million in
any calendar year (plus amounts not incurred under this Section 7.2.2(i) during
any prior calendar year) provided, that no such limitation shall apply with
respect to Indebtedness for Capital Expenditures required by law or any Governmental
Authority;




     (j) Indebtedness of any Subsidiary of the Cayman Borrower, that is held by the
Cayman Borrower or any Subsidiary of the Cayman Borrower; provided, that if any
such Indebtedness is secured, such Indebtedness shall be pledged to the Collateral
Agent;




     (k) Indebtedness of the Cayman Borrower that is held by any Subsidiary of the
Cayman Borrower; provided such Subsidiary is not the obligor or guarantor under any
Indebtedness for borrowed money;




     (1) Indebtedness in the form of PECs issued by a Subsidiary of the Cayman Borrower
to the Cayman Borrower or any wholly owned Subsidiary of the Cayman Borrower;




     (m) Indebtedness of the Cayman Borrower or Subsidiaries of the Cayman
Borrower that is fully secured by cash collateral constituting New Equity;




     (n) Indebtedness of the Cayman Borrower and any refinancing thereof which is
unsecured if the Cayman Borrower shall have furnished notice to the Administrative Agent
of the Indebtedness as soon as practicable after the date information concerning the
Indebtedness is publicly announced and certification that immediately after giving
effect to such Indebtedness (1) the Consolidated Leverage Ratio will be less than 3.5,
(2) the Stand-alone Interest Coverage Ratio will be greater than 1.5, (3) the Collateral



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Coverage Ratio will be greater than 1.75, and (4) other than with respect to the
Permitted Asian Acquisition Indebtedness, the weighted average life of such Indebtedness
exceeds the remaining weighted average life of the outstanding Term Loans, all
calculated to give pro forma effect to such Indebtedness; and




     (o) Indebtedness of Subsidiaries of the Cayman Borrower (other than the U.S.
Borrower) and any refinancing thereof that is secured (by assets of or ownership
interests in such Subsidiary) or unsecured, in each case, if the Cayman Borrower
shall have furnished notice to the Administrative Agent of the Indebtedness on or
before the date information concerning the Indebtedness is publicly announced and
certification that immediately after giving effect to such Indebtedness the
Borrowers will be in compliance with the covenants set forth in Section 7.2.4,
all calculated to give pro forma effect to such Indebtedness;




provided, however, that no Indebtedness, other than as provided
in clauses (b), (d), (e), (g)(ii), (i), (k) (to the extent the Cayman
Borrower receives cash or cash equivalents in an amount equal to the face amount
of such Indebtedness), and (with respect to Subsidiaries of the Cayman Borrower
acquired after the Effective Date) clause (f), shall be assumed, created
or otherwise incurred by either Borrower if a Default or Event of Default has
occurred and is then continuing or
would result therefrom.



     SECTION 7.2.3 Liens. Each Borrower will not, and the Cayman Borrower will
not permit any of its Subsidiaries to, create, incur, assume or permit to exist any Lien
upon any of its property (including Capital Securities of any Person), revenues or
assets, whether now owned or hereafter acquired, except (collectively, the “Permitted
Liens”):




     (a) Liens securing payment of the Obligations;




     (b) Liens existing as of the Effective Date (which, in the case of Liens
securing Indebtedness permitted pursuant to Section 7.2.2(c)(i) are
disclosed in Item 7.2.3(b) of the Disclosure Schedule) and Liens securing
any refinancing of any of the Indebtedness that is permitted in Section
7.2.2(c)(i) (to the extent that such refinancing is permitted by Section
7.2.2); provided, that no such Lien shall encumber any additional
property and the amount of Indebtedness secured by such Lien is not increased from
that existing on the Effective Date; provided further, that no such Lien
shall secure Subordinated Debt;




     (c) Liens securing Indebtedness of the type permitted under clause
(e) of Section 7.2.2; provided, that (i) such Lien is granted
(or registration thereof is begun) within 60 days after such Indebtedness is
incurred, (ii) the Indebtedness secured thereby does not exceed 80% of the lesser
of the cost or the fair market value of the applicable property, improvements or
equipment at the time of such acquisition (or construction) and (iii) such Lien
encumbers only the assets that are the subject of the Indebtedness referred to in
such clause;




     (d) Liens securing Indebtedness of a Subsidiary of the Cayman Borrower that
is permitted under clause (f) of Section 7.2.2; provided
that such Liens encumber only



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property and assets of such Subsidiary or any other
Subsidiary of the Cayman Borrower obligated with respect to such Indebtedness to
the extent permitted by Section 7.2.2(f);




     (e) Liens in favor of carriers, warehousemen, mechanics, materialmen and landlords
granted in the ordinary course of business for amounts not overdue or being diligently
contested in good faith by appropriate proceedings and for which adequate reserves in
accordance with Local GAAP shall have been set aside on its books;




     (f) Liens incurred or deposits made in the ordinary course of business (i) in
connection with worker’s compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders, statutory
obligations, bids, leases or other similar obligations (other than for borrowed money)
entered into in the ordinary course of business or to secure obligations on surety and
appeal bonds, performance or indemnity bonds or bonds to secure payment of excise taxes
or custom duties and (ii) securing obligations under fuel supply and power purchase
agreements and any Hedging Agreements related thereto to the extent such Hedging
Obligations are permitted pursuant to Section 7.2.2(g);




     (g) judgment Liens and (to the extent required by the applicable court) pre-judgment Liens in existence for less than 60 days after the entry thereof or with respect
to which execution has been stayed or the payment of which is covered in full (subject to
a customary deductible) by insurance maintained with responsible insurance companies and
which do not otherwise result in an Event of Default under Section 8.1.6;




     (h) easements, rights-of-way, zoning restrictions, minor defects or irregularities
in title and other similar encumbrances and restrictions not interfering in any material
respect with the value or use of the property to which such Lien is attached;




     (i) Liens for Taxes not at the time delinquent or thereafter payable without
penalty or being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its books;




     (j) Liens on assets of the Cayman Borrower or any of its Subsidiaries arising by
virtue of statutory or common law relating to a banker’s lien or rights of set-off;




     (k) Liens arising by virtue of rights of first refusal, options or other
contractual rights or obligations to sell in connection with a Disposition permitted
hereunder;




     (l) Liens of landlords or of mortgagees of landlords, arising solely by operation
of law, on fixtures located on premises leased in the ordinary course of business;
provided that the obligations secured thereby are not in default;




     (m) Liens securing refinancing Indebtedness incurred pursuant to Section
7.2.2(a) to the extent the Loans are also secured by such Liens on a pari passu
basis;



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     (n) Liens on goods imported by any Subsidiary of the Cayman Borrower in
favor of customs and revenue authorities arising in the ordinary course of
business;




     (o) (i) Liens securing reimbursement obligations permitted to be incurred
pursuant to Section 7.2.2(d)(iii), (ii) Liens securing Indebtedness
contemplated by Section 7.2.2(m), and (iii) Liens securing Indebtednes as
contemplated by Section 7.2.2(o) and meeting the requirements of such
Section 7.2.2(o);




     (p) Liens securing Indebtedness permitted pursuant to Section
7.2.2(i) on property or assets of the Person that incurred such Indebtedness
and the Capital Securities of such Person held by others;




     (q) Liens securing Indebtedness permitted pursuant to Section
7.2.2(h) to the extent the Loans are also secured by such Liens on a pari
passu basis; and




     (r) Liens securing Indebtedness of Subsidiaries of the Cayman Borrower
permitted pursuant to Section 7.2.2(j) and held by the Cayman Borrower or
other Subsidiaries of the Cayman Borrower which are direct or indirect
shareholders of such Subsidiaries incurring such Indebtedness on property or
assets of the Person that incurred such Indebtedness and the Capital Securities
of such Person held by others.



     SECTION 7.2.4 Financial Covenants. Each Borrower will not permit any of the
events set forth below to occur.




     (a) The Stand-alone Interest Coverage Ratio to be less
than 1.2.


     (b) The Consolidated Leverage Ratio to be
greater than 4.0.



     SECTION 7.2.5 Investments. Each Borrower will not, and the Cayman Borrower
will not permit any of its Subsidiaries to, purchase, make, incur, assume or permit to
exist any Investment in any other Person, except:




     (a) Investments existing on the Effective Date and not otherwise permitted
under Section 7.2.5 and identified in Item 7.2.5(a) of the
Disclosure Schedule or that have a book value of $5,000,000 or less individually
or $50,000,000 in the aggregate;




     (b) Cash Equivalent Investments;




     (c) Investments received in connection with the bankruptcy or reorganization
of, or settlement of delinquent accounts and disputes with, customers and
suppliers, in each case in the ordinary course of business;




     (d) Investments permitted as Capital Expenditures pursuant to Section 7.2.7;




     (e) Investments by way of contributions to capital or purchases of Capital
Securities by any Subsidiary in the Cayman Borrower so long as such contribution
or purchase shall have been made for the purpose of making a payment to the Cayman



71









 







Borrower (and the Cayman Borrower shall have demonstrated the same to the
satisfaction of the Required Lenders), and the Cayman Borrower shall have received
such payment;




     (f) Investments constituting (i) accounts receivable arising, (ii) trade debt
granted, or (iii) deposits made in connection with the purchase price of goods or
services, in each case in the ordinary course of business;




     (g) Investments constituting Permitted Acquisitions; provided, that if such
Permitted Acquisition consists of Capital Securities of an entity acquired by either
Borrower, such Borrower shall pledge such Capital Securities to the Collateral Agent to
the extent required under Section 7.1.8;




     (h) Investments consisting of any deferred portion of the sales price received by
the Cayman Borrower or any of its Subsidiaries in connection with any Disposition
permitted under Section 7.2.11;




     (i) Investments in respect of (i) Hedging Obligations permitted or required to be
entered into pursuant to this Agreement and (ii) fuel hedges entered into in the
ordinary course of business and not for speculative purposes;




     (j) Investments consisting of deposits with utilities and lessors in the ordinary
course of business, pledges and deposits made in compliance with workers’ compensation
insurance and deposits permitted by Section 7.2.3(f);




     (k) Investments consisting of deposits permitted by Section 7.2.2(m),
Section 7.2.3(f) or Section 7.2.3(o);




     (l) Investments received in exchange for any Investment that is acquired pursuant
to Section 7.2.5(q), so long as the Investment so received has a value
equivalent (or better) to that for which it was exchanged;




     (m) Investments consisting of Indebtedness permitted by Section 7.2.2(j) or
Section 7.2.2(k);




     (n) Investments consisting of loans and advances made by a Subsidiary of the Cayman
Borrower to its employees, so long as the aggregate amount of such loans and advances at
any one time outstanding shall not exceed $10,000,000;




     (o) Investments by any shareholder of a Subsidiary organized under the laws of
Luxembourg in PECs issued by such Subsidiary;




     (p) Investments made by the Cayman Borrower or any of its Subsidiaries (other than
the U.S. Borrower) consisting of the creation of one or more new Subsidiaries or the
capitalization of such Subsidiaries (provided that any amounts used to
capitalize, and any other Investments made in, such Subsidiaries shall be permitted only
to the extent the use of the proceeds of such capitalization is permitted by the other
provisions of this Section 7.2.5 or is for (i) the payment of ordinary course of
business expenses of such Subsidiary, (ii) the payment of Capital Expenditures with
respect to such Subsidiary




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(to the extent such Capital Expenditures are otherwise permitted hereunder)
or (iii) the repayment of Indebtedness of such Subsidiary (to the extent such
Indebtedness, and the repayment thereof, are otherwise permitted hereunder);




     (q) Investments made at any time which do not exceed New Equity at such time
if the Cayman Borrower shall have furnished notice to the Administrative Agent of
the Investment as soon as practicable after the date information concerning the
Investment is publicly announced and certification that after giving effect to such
Investment the Borrowers will be in compliance with the covenants set forth in
Section 7.2.4, calculated to give pro forma effect to such
Investment; provided that if such Investment consists of the Capital
Securities of an entity acquired by the Cayman Borrower, the Cayman Borrower shall
pledge such Capital Securities to the Collateral Agent to the extent required under
Section 7.1.8;




     (r) Investments consisting of advances made by the Cayman Borrower or its
Subsidiaries to Persons in which they hold a direct or indirect ownership interest
in order to pay expenses incurred in the ordinary course of business; and




     (s) Investments resulting from or contemplated by the transactions described
in Item 7.2.5(s) of the Disclosure Schedule;



provided, however, that any Investment which when made complies with the
requirements of the definition of the term “Cash Equivalent Investment” may continue to
be held notwithstanding that such Investment if made thereafter would not comply with
such requirements; provided further, however, that no Investments other
than those permitted by clauses (b), (c), (d), (e), (f), (i), (j), (k) in respect of
Sections 7.2.2 (1) and 7.2.3(f) only, (n) or (o) shall be made, acquired or entered into
if a Default or Event of Default has occurred and is then continuing or would result
therefrom.



     SECTION 7.2.6 Restricted Payments, etc. Each Borrower will not, and will not
permit any of its Subsidiaries to, declare or make a Restricted Payment, or make any
deposit for any Restricted Payment, unless (a) no Event of Default under Section
8.1 shall have occurred and be continuing and (b) after giving effect to such
Restricted Payment, the Borrowers will be in compliance with the covenants set forth in
Section 7.2.4; provided that notwithstanding the foregoing, Subsidiaries
of the Cayman Borrower may make Restricted Payments to the Cayman Borrower or to wholly
owned Subsidiaries of the Cayman Borrower other than the U.S. Borrower (but in the case
of Restricted Payments made by Subsidiaries that are not wholly owned Subsidiaries, only
so long as such Restricted Payments are made ratably among the equity holders of such
non-wholly-owned Subsidiary). In no event shall the proceeds of any Indebtedness (other
than the Revolving Loans) be used to make a Restricted Payment by the Borrowers and the
proceeds of any Revolving Loans used to make any such Restricted Payment shall be subject
to repayment as provided in Section 3.1.1(f).



     SECTION 7.2.7 Capital Expenditures, etc. The Cayman Borrower will not
permit its Subsidiaries to make Capital Expenditures that are inconsistent with prudent
utility practice. The Cayman Borrower will not make Capital Expenditures for itself in
excess of $5,000,000.



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     SECTION 7.2.8 No Prepayment of Other Debt. Each Borrower will not, and the
Cayman Borrower will not permit any of its Subsidiaries to,




     (a) make any payment or prepayment of principal of, or premium or interest on,
any Subordinated Debt, redeem, retire, purchase, defease or otherwise acquire any
Subordinated Debt, or make any deposit (including the payment of amounts into a
sinking fund or other similar fund) for any of the foregoing purposes, unless (i) no
Event of Default under Section 8.1.1 shall have occurred and be continuing
and (ii) after giving effect to such payment or prepayment, the Borrowers will be in
compliance with the covenants set forth in Section 7.2.4; or




     (b) make any payment or prepayment of principal of, or premium or interest on,
any other Indebtedness, redeem, retire, purchase, defease or otherwise acquire any
other Indebtedness, or make any deposit (including the payment of amounts into a
sinking fund or other similar fund) for any of the foregoing purposes, except (i)
payments in respect of the Loans, (ii) regularly scheduled payments, and mandatory
payments, of principal of and interest on other Indebtedness permitted to be
outstanding pursuant to Section 7.2.2, (iii) prepayments of the Cuiaba/Shell
Intercompany Debt that is repaid on a pari passu basis with the Cuiaba Intercompany
Debt, (iv) prepayments funded by New Equity, (v) the redemption by any Subsidiary
organized under the laws of Luxembourg of its preferred equity certificates (so long
as such redemption is done ratably among its shareholders), (vi) prepayments of
principal in connection with a refinancing of (r) Indebtedness (other than the
Loans) incurred pursuant to Section 7.2.2(a), so long as such refinancing is
permitted by Section 7.2.2(a), (s) any Indebtedness incurred pursuant to
Section 7.2.2(c), so long as such refinancing is permitted by Section
7.2.2(c), (t) any Indebtedness incurred pursuant to Section 7.2.2(e), so
long as such refinancing is permitted by Section 7.2.2(e), (u) any
Indebtedness incurred pursuant to Section 7.2.2(f) so long as such
refinancing is permitted by Section 7.2.2(f), (v) any Indebtedness incurred
pursuant to Section 7.2.2(h), so long as such refinancing is permitted by
Section 7.2.2(h), (w) any Indebtedness incurred pursuant to Section
7.2.2(i), so long as such refinancing is permitted by Section 7.2.2(i),
(x) any Indebtedness incurred pursuant to Section 7.2.2(m), so long as such
refinancing is permitted by Section 7.2.2(m), (y) any Indebtedness incurred
pursuant to Section 7.2.2(n), so long as such refinancing is permitted by
Section 7.2.2(n), and (z) any Indebtedness incurred pursuant to Section
7.2.2(o), so long as such refinancing is permitted by Section 7.2.2(o),
and (vii) to the extent after giving effect to such payment or prepayment, the
Borrowers will be in compliance with the covenants set forth in Section
7.2.4 and no Default or Event of Default under Section 8.1.1 shall have
occurred and be continuing.



     SECTION 7.2.9 Issuance of Capital Securities. Each Borrower will not, and
the Cayman Borrower will not permit any of its Subsidiaries to issue any Capital
Securities (whether for value or otherwise) to any Person other than (a) in the case of
Subsidiaries (other than the U.S. Borrower), to the Cayman Borrower or another wholly
owned Subsidiary, (b) in the case of the Cayman Borrower as New Equity, (c) in the case
of the Cayman Borrower, the issuance of its Capital Securities in satisfaction of
obligations in respect of long-term incentive plan arrangements or employee stock option
arrangements, (d) in the case of the Cayman Borrower, in exchange for the acquisition or
redemption of Subordinated Debt pursuant to Section 7.2.8(a),



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(e) in the case of the Cayman Borrower, the issuance of its common Capital Securities in
connection with a Permitted Acquisition or to fund Capital Expenditures and other needs
of the Cayman Borrower and its Subsidiaries and (f) the payment by Subsidiaries
not-wholly owned by the Cayman Borrower of dividends (ratably to their respective
shareholders) in Capital Securities.



     SECTION 7.2.10 Consolidation, Merger, Permitted Acquisitions, etc. Each
Borrower will not, and the Cayman Borrower will not permit any of its Subsidiaries to,
liquidate or dissolve, consolidate with, or merge into or with, any other Person, or
purchase or otherwise acquire all or substantially all of the assets of any Person (or
any division thereof), except




     (a) any Subsidiary (other than the U.S. Borrower) may liquidate or dissolve
voluntarily into, and may merge with and into, any other Subsidiary of the Cayman
Borrower, and the assets or Capital Securities of any Subsidiary may be purchased
or otherwise acquired by any other Subsidiary of the Cayman Borrower;
provided, further, that in no event shall (i) any Subsidiary
consolidate with or merge with and into any other Subsidiary unless after
giving effect thereto the Cayman Borrower shall have demonstrated to the
satisfaction of the Required Lenders that the ability of the Cayman Borrower to
receive dividend payments from its Subsidiaries is not adversely affected and the
Cayman Borrower’s ability to control the management and operations of its
Subsidiaries is not adversely affected and (ii) any Subsidiary that has
Indebtedness outstanding that was incurred pursuant to Section 7.2.2(f)
merge with and into any Subsidiary existing on the date of this Agreement;




     (b) any acquisition consisting of an Investment permitted under Section
7.2.5; and




     (c) and the dissolution of any other Subsidiary of the Cayman Borrower (other
than the U.S. Borrower) not required for the operation of the business of the
Cayman Borrower or its Subsidiaries.



     SECTION 7.2.11 Permitted Dispositions. Each Borrower will not, and the
Cayman Borrower will not permit any of its Subsidiaries to, Dispose of any of their
respective assets (including accounts receivable and Capital Securities of Subsidiaries)
to any Person in one transaction or series of transactions unless such Disposition:




     (a) is a Disposition made in the ordinary course of its business or of
obsolete, damaged, worn out, surplus or outdated property,




     (b) is a Disposition of an Excluded Subsidiary for a consideration consisting
solely of cash,




     (c) is permitted by Section 7.2.10,




     (d) is from a Subsidiary of the Cayman Borrower to the Cayman Borrower or a
wholly owned Subsidiary of the Cayman Borrower,




     (e) is of Cash Equivalent Investments in the ordinary course of business,




75












 






     (f) consists of leases or subleases of real property or capital assets (which
are not essential to the operation of the business of the lessor or sublessor) in
the ordinary course of business,




     (g) consists of the issuance of employee benefit and stock incentive plans
entered into in the ordinary course of business,




     (h) consists of accounts receivable pursuant to any monetization or other
financing of accounts receivable in the ordinary course of business and not for
the purpose of borrowing money and after giving effect to such Disposition the
Borrowers will be in compliance with the covenants set forth in Section
7.2.4 calculated to give pro forma effect to such monetization or financing,




     (i) is required to be made pursuant to the existing contractual arrangements
described on Item 7.2.11 of the Disclosure Schedule,




     (j) any other Disposition if the Borrowers shall have furnished notice to the
Administrative Agent of the Disposition as soon as practicable after the date
information concerning the Disposition is publicly announced and certification
that after giving effect to such Disposition the Borrowers will be in compliance
with the covenants set forth in Section 7.2.4, calculated to give pro
forma effect to such Disposition; and




     (k) results from or is contemplated by the transactions described in Item
7.2.5(s) of the Disclosure Schedules;




provided, that the Borrowers shall not and the Cayman Borrower shall not
permit its Subsidiaries to Dispose in any calendar year of assets that provided,
in the aggregate, greater than 25% of the consolidated cash flow the Borrowers
(calculated in accordance with GAAP) for the preceding calendar year without the
consent of the Required Lenders.



     SECTION 7.2.12 Modification of Certain Agreements. Each Borrower will not,
and the Cayman Borrower will not permit any of its Subsidiaries to, consent to any
amendment, supplement, waiver or other modification of, or enter into any forbearance
from exercising any rights with respect to the terms or provisions contained in
(collectively, “Modifications”).




     (a) the Organic Documents of the Cayman Borrowers or any of its
Subsidiaries if the result thereof would have a material adverse effect on the
Lenders (it being agreed that any Modification of any such Organic Document would
not have an adverse effect on the Lenders if such Modification is made to
effectuate a transaction otherwise permitted by the terms of any Loan Document);
and




     (b) any agreement or instrument governing or evidencing any Indebtedness of
the Cayman Borrower or any of its Subsidiaries, except (i) to the extent such
Modification effects a refinancing of such Indebtedness permitted by Section
7.2.2, or (ii) to the extent that the result thereof would not have a material
adverse effect on the Lenders.



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     SECTION 7.2.13 Transactions with Affiliates. Each Borrower will not, and the
Cayman Borrower will not permit any of its Subsidiaries to, enter into or cause or permit
to exist any arrangement, transaction or contract (including for the purchase, lease or
exchange of property or the rendering of services) with any of its other Affiliates
(except for the issuance of any Subordinated Debt), unless such arrangement, transaction
or contract is on terms no less favorable to the applicable Borrower or such Subsidiary
than it could obtain in an arm’s-length transaction with a Person that is not an
Affiliate. The agreements described on Item 7.2.13 of the Disclosure Schedule are
deemed to have satisfied the requirements of this Section 7.2.13.



     SECTION 7.2.14 Restrictive Agreements, etc. Each Borrower will not, and the
Cayman Borrower will not permit any of its Subsidiaries to, enter into any agreement
prohibiting




     (a) the creation or assumption of any Lien upon its properties, revenues or
assets, whether now owned or hereafter acquired;




     (b) the ability of the Borrowers to amend or otherwise modify any Loan
Document; or




     (c) the ability of any Subsidiary to make any payments, directly or indirectly,
to the Borrowers, including by way of dividends, advances, repayments of loans,
reimbursements of management and other intercompany charges, expenses and accruals
or other returns on investments.


The foregoing prohibitions shall not apply to any of the following:





     (i) restrictions contained in any Loan Document,




     (ii) restrictions in the terms and conditions of any refinancing
Indebtedness that is incurred in compliance with Section 7.2.2(a),




     (iii) in the case of clauses (a) and (c), restrictions in any agreement
governing any Indebtedness permitted by Section 7.2.2(c),
Section 7.2.2(e), Section 7.2.2(f), Section 7.2.2(h)
and Section 7.2.2(i) (but in the case of Section 7.2.2(i),
clause (c) shall apply only insofar as the restriction provides that
dividends or other restricted payments cannot be made by the borrower of
such Indebtedness during the continuance of a default with respect to such
Indebtedness) and in the case of Sections 7.2.2(e) and (f), clause
(a) shall apply only as to the assets financed with the proceeds of such
Indebtedness),




     (iv) in the case of clause (a), (x) restrictions in any agreement
governing any Indebtedness permitted by Section 7.2.2(n) and
Section 7.2.2(o), in each case, only to the extent restrictions in
any agreement governing such Indebtedness do not prohibit or restrict the
Liens under the Security Agreements, (y) restrictions in respect of property
encumbered by Liens permitted by Section 7.2.3 so long as such
restriction applies only to the asset encumbered by such permitted Lien and
(z) customary provisions in leases and service contracts entered into in the
ordinary course of business between the Cayman Borrower or



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any Subsidiary and its customers and other contracts restricting the
assignment thereof,




     (v) in the case of clause (c), restrictions in any agreement governing
any Indebtedness permitted by Section 7.2.2(o), only to the extent
such restrictions prohibit the payment of dividends during the continuance
of an event of default with respect to such Indebtedness or are, in the
Administrative Agent’s reasonable discretion, otherwise customary in the
applicable market for debt transactions of that nature,




     (vi) conditions imposed by law, regulation, court order, rule or decree,




     (vii) restrictions in any agreement in effect at the time any Person
becomes a Subsidiary of the Cayman Borrower (provided that such
agreement was not entered into in contemplation of such Person becoming a
Subsidiary),




     (viii) customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary (or the assets of a Subsidiary)
pending such
sale (provided that such restrictions and conditions apply
only to the Subsidiary that is to be sold (or whose assets are to be sold)
and such sale is permitted under this Agreement,




     (ix) restrictions contained on the Closing Date in any Organic
Document of the Cayman Borrowers or any of its Subsidiaries, or




     (x) restrictions described in Item 7.2.14 of the Disclosure
Schedule.



     SECTION 7.2.15 Sale and Leaseback. The Borrowers will not, and will not
permit any of its Subsidiaries to, directly or indirectly enter into any agreement or
arrangement, except for those set forth in Item 7.2.15 of the Disclosure
Schedule, providing for the sale or transfer by it of any property (now owned or
hereafter acquired) to a Person and the subsequent lease or rental of such property or
other similar property from such Person.



     SECTION 7.2.16 U.S. Borrower. The Cayman Borrower will not, and will not
permit any of its Subsidiaries, to purchase, make, incur, assume or permit to exist any
Investment in the U.S. Borrower or otherwise sell, transfer, assign or distribute,
directly or indirectly, any assets or property to the U.S. Borrower. The U.S. Borrower
will not own any assets and will not have any Subsidiaries. Notwithstanding anything
herein to the contrary in this Agreement, the U.S. Borrower will not receive Loans
proceeds.



ARTICLE VIII

EVENTS OF DEFAULT




     SECTION 8.1 Listing of Events of Default. Each of the following events or
occurrences described in this Article VIII shall constitute an “Event of
Default.”




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     SECTION 8.1.1 Non-Payment of Obligations. Either Borrower shall default, and
such default shall continue unremedied for a period of three days after such amount was
due, in the payment or prepayment when due of the following:




     (a) any principal of any Loan (including any regularly scheduled payment of
principal and any prepayment pursuant to Section 3.1.1); or




     (b) interest on any Loan or any fee described in Article III or any
other monetary Obligation (other than as provided for in clause (a) above).



     SECTION 8.1.2 Breach of Warranty. Any representation or warranty of either
Borrower made or deemed to be made in any Loan Document (including any certificates
delivered pursuant to Article V) is or shall be incorrect when made or deemed to
have been made in any material respect.



     SECTION 8.1.3 Non-Performance of Certain Covenants and Obligations. Subject
to the provisions of Section 1.5, either Borrower or any Material Guarantor shall
default in the due performance or observance of any of its obligations under (i)
Section 7.1.1 or Section 7.1.7, and such default shall continue for a
period of 30 days or (ii) Section 7.2 and such default shall continue for a
period of five Business Days.



     SECTION 8.1.4 Non-Performance of Other Covenants and Obligations. Subject to
the provisions of Section 1.5, either Borrower shall default in the due
performance and observance of any other agreement contained in any Loan Document executed
by it, and such default shall continue unremedied for a period of 30 days after the
earlier to occur of (i) notice thereof given to either Borrower by the Administrative
Agent or any Lender or (ii) the date on which either Borrower has knowledge of such
default; provided, however, that if during such 30 day period, the
Borrowers are proceeding with diligence and in good faith to cure such default, the cure
period shall be extended by an additional 30-day period.



     SECTION 8.1.5 Default on Other Indebtedness. A default (other than a default
described in Item 8.1.5 of the Disclosure Schedule) shall occur (and shall not
have been cured or waived) in the payment of any amount when due, whether by acceleration
or otherwise, of any principal or stated amount of, or interest or fees on, any
Indebtedness (other than Indebtedness described in Section 8.1.1) of the Cayman
Borrower or any of its Subsidiary if either (i) the principal or stated amount thereof is
$100,000,000 or more (or the equivalent in other currencies) or (ii) the aggregate
principal or stated amount of all such defaulted Indebtedness is $250,000,000 or more (or
the equivalent in other currencies), or a default (other than a default existing on the
Closing Date and described in Item 8.1.5 of the Disclosure Schedule) shall occur
(and shall not have been cured or waived) in the performance or observance of any
obligation or condition with respect to such Indebtedness if the effect of such default
is to accelerate the maturity of any such Indebtedness or, in the case of Indebtedness of
the Cayman Borrower only, to permit (with notice or lapse of time or both) the holder or
holders of such Indebtedness, or any trustee or agent for such holders, to cause or
declare such Indebtedness to become due and payable or require such Indebtedness to be
prepaid, redeemed, purchased or defeased or require an offer to purchase or defease such
Indebtedness prior to its expressed maturity.



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     SECTION 8.1.6 Judgments. Any judgment or order for the payment of money of
$10,000,000 or more (or the equivalent in other currencies), or judgments or orders for
the payment of money aggregating $30,000,000 or more (or the equivalent in other
currencies), exclusive of any amounts fully covered by insurance (less any applicable
deductible) and as to which the insurer has acknowledged its responsibility to cover such
judgment or order, shall be rendered against the Cayman Borrower or any of its
Subsidiaries and such judgment or judgments shall not have been vacated or discharged or
stayed or bonded pending appeal within 60 days after the entry thereof or enforcement
proceedings shall have been commenced by any creditor upon any such judgment or order.



     SECTION 8.1.7 Pension Plans. Any of the following events shall occur




     (a) with respect to any Pension Plan, the institution of any steps by either
Borrower, any member of its Controlled Group or any other Person to terminate a
Pension Plan which if, as a result of such termination, either Borrower or any such
member could be required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension Plan, in
excess of $5,000,000; or




     (b) with respect to any Pension Plan, a contribution failure occurs with
respect to any Pension Plan sufficient to give rise to a Lien under section 302(f)
of ERISA, or




     (c) with respect to any arrangement that would be a Pension Plan but for the
fact that it is maintained outside of the United States primarily for the benefit
of individuals substantially all of whom are nonresident aliens, (i) the
institution of any steps by either Borrower, any member of its Controlled Group, or
any other Person to terminate such arrangement which if, as a result of such
termination, such Borrower or any such member could be required to make a
contribution to such arrangement, or could reasonably expect to incur a liability
or obligation to or in respect of such arrangement, in excess of $5,000,000, or
(ii) a contribution failure occurs with respect to such arrangement sufficient to
give rise to a Lien under applicable law securing obligations in excess of
$5,000,000.



     SECTION 8.1.8 Change in Control. Any Change in Control shall occur.



     SECTION 8.1.9 Bankruptcy, Insolvency, etc. Either Borrower or any Guarantor shall:




     (a) become insolvent or generally fail to pay, or admit in writing its
inability or unwillingness generally to pay, debts as they become due;




     (b) apply for, consent to, or acquiesce in the appointment of a trustee,
liquidator, receiver, sequestrator or other custodian for any substantial part of
the property of any thereof, or make a general assignment for the benefit of
creditors;




     (c) in the absence of such application, consent or acquiescence in or permit
or suffer to exist the appointment of a trustee, liquidator, receiver, sequestrator
or other custodian for a substantial part of the property of any thereof, and such
trustee, liquidator, receiver, sequestrator or other custodian shall not be
discharged within 60 days;



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     (d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, composition, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law or any dissolution, winding up or
liquidation proceeding, in respect thereof, and, if any such case or proceeding is
not commenced by such Borrower or any Guarantor, such case or proceeding shall be
consented to or acquiesced in by such Borrower or any Guarantor, as the case may be,
or shall result in the entry of an order for relief or shall remain for 60 days
undismissed; or




     (e) take any action authorizing, or in furtherance of, any of the foregoing.



     Notwithstanding the foregoing, in no event shall any of the proceedings referred to
in this Section 8.1.9 affecting only an Immaterial Guarantor constitute an Event
of Default, unless and to the extent that such proceedings affect Immaterial Guarantors
representing, directly or through direct or indirect ownership interest in any other
Person, 15% or more, in the aggregate, of the Consolidated EBITDA of the Cayman Borrowers
and its Subsidiaries for the most recently ended Fiscal Year.



     SECTION 8.1.10 Impairment of Security, etc. Any Security Agreement or any
Lien granted thereunder shall (except in accordance with its terms or except with respect
to Liens on property disposed of in accordance with Sections 7.2.10 and
7.2.11), in whole or in part, terminate, cease to be effective or cease to be the
legally valid, binding and enforceable obligation of each Borrower or any other entity
granting such Lien; each Borrower or any Guarantor shall, directly or indirectly, contest
in any manner such effectiveness, validity, binding nature or enforceability; or, except
as permitted under any Loan Document, any Lien securing any Obligation shall, in whole or
in part, cease to be a perfected Lien (subject to no equal or prior Liens other than
Permitted Liens).



     SECTION 8.1.11 Failure of Subordination. The subordination provisions
relating to any Subordinated Debt (the “Subordination Provisions”) shall cease to
be in full force and effect; or the Cayman Borrower or any of its Subsidiaries shall,
directly or indirectly, disavow or contest in any manner the effectiveness, validity or
enforceability of any of the Subordination Provisions or that all payments of principal
of or premium and interest on the Subordinated Debt, or realized from the liquidation of
any property of such Borrower, shall be subject to any of such Subordination Provisions.



     SECTION 8.2 Action if Bankruptcy. If any Event of Default described in
clauses (a) through (e) of Section 8.1.9 with respect to either Borrower
shall occur, the Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Loans and all other
Obligations shall automatically be and become immediately due and payable, without notice
or demand to any Person.



     SECTION 8.3 Action if Other Event of Default. If any Event of Default (other
than any Event of Default described in clauses (a) through (e) of Section
8.1.9 with respect to either Borrower) shall occur for any reason, whether voluntary
or involuntary, and be continuing, the Administrative Agent, upon the direction of the
Required Lenders, shall by notice to the Borrowers declare all or any portion of the
outstanding principal amount of the Loans and other Obligations to be due and payable
and/or the Commitments (if not theretofore terminated) to be




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terminated, whereupon the full unpaid amount of such Loans and other Obligations which
shall be so declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate.




     SECTION 8.4 Effect of Cure. If (i) the circumstance giving rise to an Event
of Default has been cured or remedied (without regard to whether it has been cured
within any applicable cure period), (ii) the Administrative Agent and the Lenders have
not, prior to such cure or remedy, accelerated the Loans, and (iii) the circumstance
giving rise to an Event of Default has not had, and could not reasonably be expected to
have, a material adverse effect on the Borrowers or the Borrowers’ ability to repay the
Loans, then such Event of Default shall be deemed cured and waived for all purposes, but
without prejudice to (or waiver of) the Borrowers’ continuing and future obligations
under the Loan Documents, whether of the same or different nature as the underlying
Event of Default that has been cured.



ARTICLE IX

THE AGENTS




     SECTION 9.1 Actions. Each Lender hereby appoints Credit Suisse, Cayman
Islands Branch, as its Administrative Agent under and for purposes of each Loan Document.
Each Lender hereby appoints JPMorgan Chase Bank, N.A., as its Collateral Agent under and
for the purposes of each Loan Document. Each Lender authorizes each of the Administrative
Agent and the Collateral Agent to act on behalf of such Lender under each Loan Document,
as applicable, and, in the absence of other written instructions from the Required
Lenders received from time to time by such Agent (with respect to which such Agent agrees
that it will comply, except as otherwise provided in this Section or as otherwise advised
by counsel in order to avoid contravention of applicable law), to exercise such powers
hereunder and thereunder as are specifically delegated to or required of such Agent by
the terms hereof and thereof, together with such powers as may be incidental thereto.
Each Lender hereby indemnifies (which indemnity shall survive any termination of this
Agreement) each Agent, pro rata according to such Lender’s proportionate amount
of the outstanding Loans, from and against any and all liabilities, obligations, losses,
damages, claims, costs or expenses of any kind or nature whatsoever which may at any time
be imposed on, incurred by, or asserted against, either Agent in any way relating to or
arising out of any Loan Document, (including attorneys’ fees), and as to which each such
Agent is not reimbursed by the Borrowers; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses, damages, claims,
costs or expenses which are determined by a court of competent jurisdiction in a final
proceeding to have resulted from an Agent’s gross negligence or willful misconduct. None
of the Agents shall be required to take any action under any Loan Document, or to
prosecute or defend any suit in respect of any Loan Document, unless it is indemnified
hereunder to its satisfaction. If any indemnity in favor of an Agent shall be or become,
in the Agent’s determination, inadequate, such Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against hereunder
until such additional indemnity is given. The Documentation Agent, without the consent of
or notice to any party hereto, may assign any and all of its rights or obligations
hereunder to any of its Affiliates. As of the Closing Date, the Documentation Agent shall
have no obligations but shall be entitled to all the benefits of Section 9.



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     SECTION 9.2 Funding Reliance, etc.



     SECTION 9.2.1 Lenders. Unless the Administrative Agent shall have been
notified in writing by any Lender by 3:00 p.m. on the Business Day prior to the borrowing
of Loans that such Lender will not make available the amount which would constitute its
Percentage of the borrowing of Loans on the date specified therefor, the Administrative
Agent may assume that such Lender has made such amount available to the Administrative
Agent and, in reliance upon such assumption, make available to the Borrowers a
corresponding amount. If and to the extent that such Lender shall not have made such
amount available to the Administrative Agent, such Lender and the Borrowers severally
agree to repay the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date the Administrative Agent made
such amount available to the Borrowers to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to Loans comprising the
borrowing (in the case of the Borrowers) and (in the case of a Lender), at the Federal
Funds Rate (for the first two Business Days after which such amount has not been repaid),
and thereafter at the interest rate applicable to Loans comprising the borrowing.



     SECTION 9.2.2 Borrowers. Unless the Administrative Agent shall have been
notified in writing by the applicable Borrower by 3:00 p.m. on the Business Day prior to
the payment of any amounts due under any Loan Document that such Borrower will not make
available such amount on the date specified therefor, the Administrative Agent may assume
that such Borrower has made such amount available to the Administrative Agent and, in
reliance upon such assumption, make available to each Lender its pro rata share of a
corresponding amount of such payment. If and to the extent that such Borrower shall not
have made such amount available to the Administrative Agent, the applicable Lender and
the Borrowers severally agree to repay the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date the
Administrative Agent made such amount available to such Lender to the date such amount is
repaid to the Administrative Agent, at the interest rate applicable at the time to Loans
comprising the borrowing (in the case of the Borrowers) and (in the case of a Lender), at
the Federal Funds Rate (for the first two Business Days after which such amount has not
been repaid), and thereafter at the interest rate applicable to Loans comprising the
borrowing.



     SECTION 9.3 Exculpation. Neither the Agents nor any of their respective
directors, officers, employees or agents shall be liable to any Secured Party for any
action taken or omitted to be taken by it under any Loan Document, or in connection
therewith, except to the extent found by a final and non-appealable decision of a court
of competent jurisdiction to have resulted from their own willful misconduct or gross
negligence, nor responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of any Loan Document, nor for
the creation, perfection or priority of any Liens purported to be created by any of the
Loan Documents, or the validity, genuineness, enforceability, existence, value or
sufficiency of any collateral security, nor to make any inquiry respecting the
performance by the Borrowers of their Obligations. Any such inquiry which may be made by
an Agent shall not obligate such Agent to make any further inquiry or to take any action.
Each Agent shall be entitled to rely upon advice of counsel concerning legal matters and
upon any notice, consent, certificate, statement or writing which such Agent believes to
be genuine and to have been presented by a proper Person. Neither Agent shall have any
duties or obligations



83









 




except those expressly set forth herein and in the other Loan Documents. Without limiting
the generality of the foregoing, neither Agent shall be subject to any fiduciary or other
implied duties, regardless of whether any Default shall have occurred.




     SECTION 9.4 Successor. Each of the Administrative Agent or the Collateral
Agent may resign as such at any time upon at least 30 days’ prior notice to the Borrowers
and all Lenders. If the Administrative Agent or the Collateral Agent at any time shall
resign, the Required Lenders may appoint another Lender as a successor Administrative
Agent or Collateral Agent, as applicable, which shall thereupon become the Administrative
Agent or Collateral Agent hereunder. If no successor Administrative Agent or Collateral
Agent shall have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent’s or Collateral
Agent’s giving notice of resignation, then the retiring Administrative Agent’s or
Collateral Agent may, on behalf of the Lenders, appoint a successor Administrative Agent or
Collateral, as applicable, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the United States (or any State thereof) or a
United States branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $250,000,000; provided, however, that if,
such retiring Administrative Agent or Collateral Agent is unable to find a commercial
banking institution which is willing to accept such appointment and which meets the
qualifications set forth in above, the retiring Administrative Agent’s or Collateral
Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall
assume and perform all of the duties of the Administrative Agent or Collateral Agent, as
applicable, hereunder until such time, if any, as the Required Lenders appoint a
successor as provided for above. Upon the acceptance of any appointment as Administrative
Agent or Collateral Agent, hereunder by a successor Administrative Agent or Collateral
Agent, as applicable, such successor Administrative Agent or Collateral Agent shall be
entitled to receive from the retiring Administrative Agent or Collateral Agent such
documents of transfer and assignment as such successor Administrative Agent or Collateral
Agent may reasonably request, and shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Administrative Agent or Collateral
Agent and the retiring Administrative Agent or Collateral Agent shall be discharged from
its duties and obligations under the Loan Documents. After any retiring Administrative
Agent’s or Collateral Agent’s resignation hereunder as the Administrative Agent or
Collateral Agent, the provisions of this Article IX shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was the Administrative Agent
or the Collateral Agent under the Loan Documents, and Section 10.3 and
Section 10.4, as applicable, shall continue to inure to its benefit.



     SECTION 9.5 Loans by the Administrative Agent. The Administrative Agent and
the Collateral Agent shall have the same rights and powers with respect to (x) the Loans
made by them or any of their respective Affiliates, and (y) the Notes held by them or any
of their respective Affiliates as any other Lender and may exercise the same as if they
were not the Administrative Agent or the Collateral Agent, as applicable. The
Administrative Agent and the Collateral Agent and their respective Affiliates may accept
deposits from, lend money to, and generally engage in any kind of business with the
Cayman Borrower or any of its Subsidiaries or any Affiliate of either Borrower as if the
Administrative Agent or the Collateral Agent, as applicable, were not the Administrative
Agent or the Collateral Agent, as applicable, hereunder. Neither Agent shall have any
responsibility or obligation to furnish to any Lender any information regarding the
Cayman Borrower, any of its Subsidiaries or any Affiliate of either



84









 




Borrower, that such Agent obtains other than pursuant to this Agreement and the other
Loan Documents.




     SECTION 9.6 Credit Decisions. Each Lender acknowledges that it has,
independently of the Administrative Agent, the Collateral Agent and each other Lender,
and based on such Lender’s review of the financial information of the Borrowers, the Loan
Documents (the terms and provisions of which being satisfactory to such Lender) and such
other documents, information and investigations as such Lender has deemed appropriate,
made its own credit decision to extend its Commitments. Each Lender also acknowledges
that it will, independently of the Administrative Agent, the Collateral Agent and each
other Lender, and based on such other documents, information and investigations as it
shall deem appropriate at any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges available to it
under the Loan Documents.



     SECTION 9.7 Copies, etc. Each Agent shall give prompt notice to each Lender
of each notice or request required or permitted to be given to each Agent by the
Borrowers pursuant to the terms of the Loan Documents (unless concurrently delivered to
the Lenders by the Borrowers). Each Agent will distribute to each Lender each document or
instrument received for its account and copies of all other communications received by
each Agent from the Borrowers for distribution to the Lenders by each Agent in accordance
with the terms of the Loan Documents.



     SECTION 9.8 Reliance by Agents. The Agents shall be entitled to rely upon
any certification, notice or other communication (including any thereof by telephone,
telecopy, telegram or cable) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the Agents. As to
any matters not expressly provided for by the Loan Documents, the Agents shall in all
cases be fully protected in acting, or in refraining from acting, thereunder in
accordance with instructions given by the Required Lenders or all of the Lenders as is
required in such circumstance, and such instructions of such Lenders and any action taken
or failure to act pursuant thereto shall be binding on all Secured Parties. For purposes
of applying amounts in accordance with this Section, the Agents shall be entitled to rely
upon any Secured Party that has entered into a Hedging Agreement with either Borrower for
a determination (which such Secured Party agrees to provide or cause to be provided upon
request of the Agents) of the outstanding Obligations owed to such Secured Party under
any Hedging Agreement. Unless it has actual knowledge evidenced by way of written notice
from any such Secured Party and the Borrowers to the contrary, the Agents, in acting in
such capacity under the Loan Documents, shall be entitled to assume that no Hedging
Agreements or Obligations in respect thereof are in existence or outstanding between any
Secured Party and either Borrower.



     SECTION 9.9 Defaults. None of the Agents shall be deemed to have knowledge
or notice of the occurrence of a Default unless such Agent has received a written notice
from a Lender or the Borrowers specifying such Default and stating that such notice is a
“Notice of Default”. In the event that Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give prompt notice thereof to the
Lenders. The Agents shall (subject to Section 10.1) take such action with respect
to such Default as shall be directed



85









 




by the Required Lenders; provided, that unless and until an Agent shall have
received such directions, such Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default as it shall
deem advisable in the best interest of the Secured Parties except to the extent that
this Agreement expressly requires that such action be taken, or not be taken, only with
the consent or upon the authorization of the Required Lenders or all Lenders.




     SECTION 9.10 Appointment of Supplemental Agent, Sub-Agent; etc. (a) In the
event the Administrative Agent or the Collateral Agent reasonably deems it necessary to
comply with applicable law or, with the consent of the Borrowers (such consent not to be
unreasonably withheld or delayed), desirable, it may, in respect of the collateral
securing the Obligations, appoint (with written notice thereof to the Administrative
Agent or the Collateral Agent, as applicable) an additional individual or institution as
a separate trustee, co trustee, agent or collateral co-agent (any such additional
individual or institution being referred to herein individually as a “Supplemental Agent”).
Such Supplemental Agent shall have and shall be subject to, in respect of
the collateral securing the Obligations, each and every right, power, privilege or duty
expressed or intended by this Agreement or any of the other Loan Documents to be
exercised by or vested in or conveyed to the Administrative Agent or the Collateral
Agent, as applicable, with respect to such collateral, to the extent necessary to enable
such Supplemental Agent to exercise such rights, powers and privileges with respect to
such collateral and to perform such duties with respect to such
collateral.



     (a) Without limiting the provisions of the foregoing clause (a), the
Administrative Agent or the Collateral Agent, as applicable, 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 or the
Collateral Agent, as applicable. The Administrative Agent or the Collateral Agent, as
applicable, and any such sub agent may perform any and all of its duties and exercise its
rights and powers by or through their respective officers, directors and employees.



     (b) Should any instrument in writing from the Borrowers be required by any
Supplemental Agent or sub-agent so appointed by the Administrative Agent or the Collateral
Agent, as applicable, to more fully and certainly vest in and confirm to him or it such
rights, powers, privileges and duties, the Borrowers shall execute, acknowledge and
deliver any and all such instruments promptly upon request by the Administrative Agent or
the Collateral Agent, as applicable. In case any Supplemental Agent or sub-agent, or a
successor thereto, shall die, become incapable of acting, resign or be removed, all the
rights, powers, privileges and duties of such Supplemental Agent or sub-agent, or a
successor thereto, to the extent permitted by law, shall vest in and be exercised by the
Administrative Agent or the Collateral Agent, as applicable, until the appointment of a
new Supplemental Agent or sub-agent. The provisions of Sections 9.1,
9.3 and 10.4 that refer to the Administrative Agent or the Collateral
Agent, as applicable, shall inure to the benefit of each Supplemental Agent and each
sub-agent and all references therein to the Administrative Agent or the Collateral Agent,
as applicable, shall be deemed to be references to the Administrative Agent or the
Collateral Agent, as applicable, and/or each Supplemental Agent and/or sub-agent, as the
context may require.



     SECTION 9.11 Posting of Approved Electronic Communications.



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     (a) The Borrowers hereby agree, unless directed otherwise by the Administrative
Agent or unless the electronic mail address referred to below has not been provided by
the Administrative Agent to the Borrowers, that it will, or will cause its Subsidiaries
to, provide to the Administrative Agent all information, documents and other materials
that it is obligated to furnish to the Administrative Agent pursuant to the Loan
Documents, or to the Lenders under Section 7.1.1, including all notices, requests,
financial statements, financial and other reports, certificates and other information
materials, but excluding any such communication that (i) is or relates to a Borrowing
Request, (ii) Continuation/Conversion Notice, (iii) relates to the payment of any
principal or other amount due under this Agreement prior to the scheduled date therefor,
(iv) provides notice of any Default or Event of Default under this Agreement or any other
Loan Document or (v) is required to be delivered to satisfy any condition precedent to
the effectiveness of this Agreement and/or the borrowing of the Loans (all such
non-excluded communications being referred to herein collectively as “Communications”),
by transmitting the Communications in an electronic/soft medium to such electronic mail
address notified to the Borrowers in writing by the Administrative Agent. In addition,
the Borrowers agree, and the Cayman Borrower agrees to cause its Subsidiaries, to
continue to provide the Communications to the Administrative Agent or the Lenders, as the
case may be, in the manner specified in the Loan Documents but only to the extent
requested by the Administrative Agent.



     (b) The Borrowers further agree that the Administrative Agent may make the
Communications available to the Lenders by posting the Communications on Intralinks or a
substantially similar electronic transmission system (the “Platform”).



     (c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE INDEMNIFIED PARTIES
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS
OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE INDEMNIFIED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE INDEMNIFIED PARTIES
HAVE ANY LIABILITY TO THE BORROWERS, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF EITHER BORROWER’S OR THE ADMINISTRATIVE AGENT’S
TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY INDEMNIFIED PARTY IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH INDEMNIFIED PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.



     (d) The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute effective
delivery of the Communications to the Administrative Agent for purposes of the Loan
Documents. Each




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Lender agrees that receipt of notice to it (as provided in the next sentence) specifying
that the Communications have been posted to the Platform shall constitute effective
delivery of the Communications to such Lender for purposes of the Loan Documents. Each
Lender agrees to notify the Administrative Agent in writing (including by electronic
communication) from time to time of such Lender’s e-mail address to which the foregoing
notice may be sent by electronic transmission and that the foregoing notice may be sent
to such e-mail address.




     (e) Nothing herein shall prejudice the right of the Administrative Agent or any
Lender to give any notice or other communication pursuant to any Loan Document in any
other manner specified in such Loan Document.



     SECTION 9.12 Release of Liens. Each Lender irrevocably authorizes the
Administrative Agent and the Collateral Agent to release any Lien granted to or held by
or in favor of the Collateral Agent for the benefit of the Secured Parties upon the
occurrence of the Termination Date or in connection with (i) the Disposition of assets
under the Loan Documents or (ii) a merger under the Loan Documents, so long as such
Disposition or merger is otherwise permitted under the terms of a Loan Document;
provided, however, that the Administrative Agent may, prior to any such
release, request that the Borrowers certify in a written notice delivered to the
Administrative Agent (with such detail as the Administrative Agent may reasonably
request) that such Disposition or merger is made in compliance with the terms of the
Loan Documents. The parties agree that each Guarantor shall be automatically released
from its obligations under a Guaranty upon the Disposition of such Guarantor, so long as
such Disposition or merger is otherwise permitted under the terms of the Loan Documents.



     SECTION 9.13 New Intercreditor Agreement. In connection with any secured
refinancing of the Loans pursuant to Section 7.2.2(a) or any secured financing
of the Borrowers under Section 7.2.2(h), each of the Lenders hereby authorizes
and instructs each Agent to enter into an intercreditor agreement (on terms
substantially identical to those of the Intercreditor Agreement) with the holders of
Indebtedness that refinanced the Loans or that financed the secured Indebtedness of the
Borrowers under Section 7.2.2(h) (or an agent or trustee acting on their
behalf), providing that such holders (or such agent or trustee) shall have the same Lien
priority as the holders the Loans.



     SECTION 9.14 Withholding Tax. To the extent required by any applicable law,
the Administrative Agent may withhold from any payment to any Lender an amount equivalent
to any applicable withholding tax. If any Governmental Authority asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to or for the
account of any Lender for any reason, such Lender shall indemnify the Administrative
Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as
tax or otherwise, including any penalties or interest and together with any and all
expenses incurred.



ARTICLE X

MISCELLANEOUS PROVISIONS





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     SECTION 10.1 Waivers, Amendments, etc. The provisions of this Agreement and
each Security Agreement may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to by the Borrowers and the
Required Lenders; provided, however, that no such amendment, modification
or waiver shall:




     (a) modify this Section 10.1, change or waive any provision of
Section 4.7 regarding the application of payments made under the Loan
Documents, or change or waive any provision of Section 3.1.2 or Section
4.8 requiring pro rata treatment of the Lenders, or the sharing of
payments by all Lenders, in each case without the consent of all Lenders;




     (b) increase the aggregate amount of any Loans required to be made by a Lender
pursuant to its Commitments, extend the final Commitment Termination Date of Loans
made (or participated in) by a Lender or extend the final Stated Maturity Date for
any Lender’s Loan or Synthetic Revolving Deposit, in each case without the consent
of such Lender (it being agreed, however, that any vote to rescind any
acceleration made pursuant to Section 8.2 and Section 8.3 of
amounts owing with respect to the Loans and other Obligations shall only require
the vote of the Required Lenders);




     (c) reduce the principal amount of or rate of interest on any Lender’s Loan,
reduce any fees described in Article III payable to any Lender or extend
the date on which principal, interest or fees are payable in respect of such
Lender’s Loans, in each case without the consent of such Lender;




     (d) reduce the percentage set forth in the definition of “Required Lenders” or
modify any requirement hereunder that any particular action be taken by all Lenders
without the consent of all Lenders;




     (e) except as otherwise expressly provided in a Loan Document, release (i) the
Borrowers from their Obligations under the Loan Documents, (ii) all or
substantially all of the collateral under the Loan Documents or (iii) other than as
provided in Section 9.12, any Material Guarantor from its obligations made
under its Guaranty, in each case without the consent of all Lenders; or




     (f) affect adversely the interests, rights or obligations of either Agent (in
its capacity as an Agent), unless consented to by such Agent; or




     (g) modify, change or waive any provision of clause (c), (d) or (e) of
Section 3.1.1 requiring that the proceeds of prepayments thereunder are
required to be applied to the Term Loans prior to the Revolving Loans or Synthetic
Revolving Loans, in each case, without the consent of each Lender holding a Term
Loan.


No failure or delay on the part of any Lender or either Agent in exercising any power or
right under any Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on the
Borrowers in any case shall entitle such Borrower to any notice or demand in similar or
other circumstances. No waiver or approval by any Lender or either Agent under any Loan
Document shall, except as may be otherwise




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stated in such waiver or approval, be applicable to subsequent transactions. No waiver
or approval hereunder shall require any similar or dissimilar waiver or approval
thereafter to be granted hereunder.




     SECTION 10.2 Notices; Time. All notices and other communications provided
under each Loan Document shall be in writing (including by facsimile or electronic mail)
and addressed, delivered or transmitted, if to the Borrowers, the Administrative Agent,
the Collateral Agent or a Lender to the applicable Person at its address, electronic
mail address or facsimile number set forth on Schedule II hereto or set forth in
the Lender Assignment Agreement, or at such other address, electronic mail address or
facsimile number as may be designated by such party in a notice to the other parties;
provided that any notices and other communications made by electronic mail shall
be subject to the terms of Section 9.11. Any notice, if mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid courier
service, shall be deemed given when received; any notice, if transmitted by facsimile,
shall be deemed given when the confirmation of transmission thereof is received by the
transmitter. The parties hereto agree that delivery of an executed counterpart of a
signature page to this Agreement and each other Loan Document by facsimile or other
electronic communication shall be effective as delivery of an original executed
counterpart of this Agreement or such other Loan Document. Unless otherwise indicated,
all references to the time of a day in a Loan Document shall refer to New York time.



     SECTION 10.3 Payment of Costs and Expenses. The Borrowers agree to pay on
demand all expenses of each Agent (including the reasonable and documented fees and
out-of-pocket expenses of Latham & Watkins LLP, counsel to the Agents (subject to the fee
arrangements discussed among the Borrowers, the Administrative Agent and Latham & Watkins
LLP in connection with the initial documentation for this transaction) and of local
counsel, if any, who may be retained by or on behalf of the Agents) in connection with




     (a) the negotiation, preparation, execution and delivery of each Loan
Document, including schedules and exhibits, and any amendments, waivers, consents,
supplements or other modifications to any Loan Document as may from time to time
hereafter be required, whether or not the transactions contemplated hereby
are consummated; and




     (b) the filing or recording of any Loan Document (including the financing
statements) and all amendments, supplements, amendment and restatements and other
modifications to any thereof, searches made following the Effective Date in
jurisdictions where financing statements (or other documents evidencing Liens in
favor of the Secured Parties) have been recorded and any and all other documents or
instruments of further assurance required to be filed or recorded by the terms of
any Loan Document; and




     (c) the preparation and review of the form of any document or instrument
relevant to any Loan Document.


The Borrowers also agrees to reimburse each Agent and each Lender upon demand for all
reasonable out-of-pocket expenses (including reasonable attorneys’ fees and legal
expenses of counsel to the Agents and of counsel to each Lender) incurred by each Agent
and each Lender in




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connection with (x) the negotiation of any restructuring or “work-out” with the
Borrowers, whether or not consummated, of any Obligations, (y) the enforcement of any
Obligations and (z) in connection with the occurrence of any Event of Default.



Provided that no Event of Default has occurred and is continuing, the Borrowers have the
right to approve the appointment and engagement terms of all legal and other advisors to
the Agents and the Lenders in connection with this transaction, such approval not to be
unreasonably withheld or delayed.




     SECTION 10.4 Indemnification. In consideration of the execution and delivery
of this Agreement by each Lender and each Agent, the Borrowers hereby indemnify,
exonerate and hold each Lender and each Agent and each of their respective Affiliates and
each of their respective officers, directors, employees, agents, advisers, trustees,
controlling persons and members of each of the foregoing (collectively, the
“Indemnified Parties”) free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such Indemnified Party is a party to
the action for which indemnification hereunder is sought), including reasonable and
documented attorneys’ fees, charges and disbursements, whether incurred in connection
with actions between or among the parties hereto or the parties, hereto and third parties
(collectively, the “Indemnified Liabilities”), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to (regardless of
whether such Indemnified Party is a party thereto and regardless of whether such matter
is initiated by a third party or by either Borrower or any of their respective
Affiliates):




     (a) any transaction financed or to be financed in whole or in part, directly
or indirectly, with the proceeds of any Loan, including all Indemnified Liabilities
arising in connection with the transactions contemplated by the Loan Documents;




     (b) the entering into and performance of any Loan Document by any of the
Indemnified Parties (including any action brought by or on behalf of either
Borrower as the result of any determination by the Required Lenders pursuant to
Article V not to fund any Loan, provided that any such action is
resolved in favor of such Indemnified Party);




     (c) any investigation, litigation or proceeding related to any acquisition or
proposed acquisition by the Cayman Borrower or any of its Subsidiaries of all or
any portion of the Capital Securities or assets of any Person, whether or not an
Indemnified Party is party thereto;




     (d) any investigation, litigation or proceeding related to any environmental
cleanup, audit, compliance or other matter relating to the protection of the
environment or the release by the Cayman Borrower or any of its Subsidiaries of any
Hazardous Material;




     (e) the presence on or under, or the escape, seepage, leakage, spillage,
discharge, emission, discharging or releases from, any facility or real property
owned, operated or leased by the Cayman Borrower or any of its Subsidiaries of any
Hazardous Material (including any losses, liabilities, damages, injuries, costs,
expenses or claims



91









 







asserted or arising under any Environmental Law), regardless of whether caused by,
or within the control of, such Borrower or Subsidiary;




     (f) each Lender’s Environmental Liability (the indemnification herein shall
survive repayment of the Obligations and any transfer of any facility or real
property of the Cayman Borrower or any of its Subsidiaries by foreclosure or by a
deed in lieu of foreclosure for any Lender’s Environmental Liability, regardless of
whether caused by, or within the control of, such Borrowers or Subsidiary); or




     (g) any Indemnified Party’s enforcement or defending of the Loan Documents or
such Indemnified Party’s relationship with either Borrower under any Loan Document;


except for Indemnified Liabilities arising for the account of a particular Indemnified
Party by reason of the relevant Indemnified Party’s gross negligence or willful
misconduct that have been finally determined and are non-appealable judgments from a
court of competent jurisdiction. It is expressly understood and agreed that to the
extent that any Indemnified Party is strictly liable under any Environmental Laws, the
Borrowers’ obligation to such Indemnified Party under this indemnity shall likewise be
without regard to fault on the part of the Borrowers with respect to the violation or
condition which results in liability of an Indemnified Party. If and to the extent that
the foregoing undertaking may be unenforceable for any reason, the Borrowers agree to
make the maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.




     SECTION 10.5 Survival. The obligations of the Borrowers under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the
obligations of the Lenders under Section 9.1, shall in each case survive any
assignment from one Lender to another (in the case of Sections 10.3 and
10.4) and the occurrence of the Termination Date. The representations and
warranties made by the Borrowers in each Loan Document shall survive the execution and
delivery of such Loan Document.



     SECTION 10.6 Severability. Any provision of any Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions of such Loan Document or affecting the
validity or enforceability of such provision in any other jurisdiction.



     SECTION 10.7 Headings. The various headings of each Loan Document are
inserted for convenience only and shall not affect the meaning or interpretation of such
Loan Document or any provisions thereof.



     SECTION 10.8 Execution in Counterparts, Effectiveness, etc. This Agreement
may be executed by the parties hereto in several counterparts, each of which shall be an
original and all of which shall constitute together but one and the same agreement. This
Agreement shall become effective when counterparts hereof executed on behalf of the
Borrowers, the Agents, the Documentation Agent and each Lender (or notice thereof
satisfactory to the Administrative Agent), shall have been received by the
Administrative Agent.



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     SECTION 10.9 Governing Law; Entire Agreement. EACH LOAN DOCUMENT (EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN A LOAN DOCUMENT) WILL EACH BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH
PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK). The Loan Documents constitute the entire understanding among the parties hereto
with respect to the subject matter thereof and supersede any prior agreements, written or
oral, with respect thereto.



     SECTION 10.10 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that the Borrowers may not assign or transfer
their respective rights or obligations hereunder without the consent of all Lenders.



     SECTION 10.11 Sale and Transfer of Loans; Participations in Loans and
Commitments. Each Lender may assign, or sell participations in, its Loans,
Commitments and Synthetic Revolving Deposits to one or more other Persons in accordance
with the terms set forth below.




     (a) Any Lender may, with the consent of, except in the case of an assignment
to a Lender, an Affiliate of a Lender or an Approved Fund, the Administrative Agent
(such consent not to be unreasonably withheld or delayed), assign to one or more
Persons all or a portion of its rights and obligations under this Agreement with
respect to the Term Loans (including all or a portion of its Term Loan Commitments
and the Term Loans at the time owing to it); provided that:




     (i) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an assignment of the entire remaining amount of the assigning
Lender’s Term Loan Commitments and the Term Loans at the time owing to it,
the amount of the Term Loan Commitments or Term Loans so assigned shall not
be less than $1,000,000 and shall be in integral multiples of $1,000,000 in
excess thereof;




     (ii) the parties to each assignment shall execute and deliver to the
Administrative Agent a Lender Assignment Agreement via an electronic
settlement system acceptable to the Administrative Agent (or, if previously
agreed with the Administrative Agent, manually), and shall pay to the
Administrative Agent a processing and recordation fee of $3,500 (which fee
may be waived or reduced in the sole discretion of the Administrative
Agent), and if the assignee is not already a Lender, administrative details
information with respect to such assignee and applicable tax forms; and




     (iii) the assignor Lender shall furnish the Borrowers with notice of
such assignment.




     (b) Any Lender may assign to one or more Persons a portion of its rights and
obligations and Commitments under this Agreement with respect to the Revolving
Loans and Synthetic Revolving Deposits; provided that:



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     (i) except in the case of an assignment of the entire remaining amount of
the assigning Lender’s Revolving Loan Commitments and the Revolving Loans at the
time owing to it and except in the case of an assignment of the entire remaining
amount of the assigning Lender’s Synthetic Revolving Deposits, the amount of the
Revolving Loan Commitments, Revolving Loans or Synthetic Revolving Deposits, as
applicable, so assigned shall not be less than $5,000,000 and shall be in
integral multiples of $1,000,000 in excess thereof;




     (ii) in the case of any such assignment by a Lender that is a Joint Lead
Arranger, such Lender’s Revolving Loans outstanding plus such Lender’s
Percentage of the then unused Revolving Loan Commitment Amount shall not be less
than $50,000,000, after giving effect to such assignment;




     (iii) the parties to each assignment shall execute and deliver to the
Administrative Agent a Lender Assignment Agreement via an electronic settlement
system acceptable to the Administrative Agent (or, if previously agreed with the
Administrative Agent, manually), and shall pay to the Administrative Agent a
processing and recordation fee of $3,500 (which fee may be waived or reduced in
the sole discretion of the Administrative Agent), and if the assignee is not
already a Lender, administrative details information with respect to such
assignee and applicable tax forms;




     (iv) the assignor Lender shall furnish the Cayman Borrower with notice of
such assignment;




     (v) the assignee must be an Approved Bank; and




     (vi) no Person may hold, in the aggregate, greater than $125,000,000 of
Revolving Loan Commitments or have more than $125,000,000 of Revolving Loans
owing to it at any time.




     (c) Subject to the recording thereof by the Administrative Agent pursuant to
clause (d), from and after the effective date specified in each Lender
Assignment Agreement, (i) the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Lender Assignment Agreement, have the rights and
obligations of a Lender under this Agreement, and (ii) the assigning Lender thereunder
shall, to the extent of the interest assigned by such Lender Assignment Agreement,
subject to Section 10.5, be released from its obligations under this Agreement
(and, in the case of a Lender Assignment Agreement covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to be a
party hereto, but shall continue to be entitled to the benefits of any provisions of
this Agreement which by their terms survive the termination of this Agreement). Any term
or provision hereof to the contrary notwithstanding, no portion of any Synthetic
Revolving Deposit of any assigning Lender shall be refunded in connection with any
assignment by such Lender, but instead (x) the applicable Eligible Assignee shall
purchase from such assigning Lender that portion of the Synthetic Revolving Deposit
identified in the applicable Lender Assignment Agreement for such consideration as
mutually agreed upon by such



94









 







Approved Bank and the assigning Lender; and (y) such assigned portion of such Synthetic
Revolving Deposit shall remain on deposit in the Synthetic Revolving Deposit Account
and, upon the effectiveness of such assignment, shall become the Synthetic Revolving
Deposit of such Eligible Assignee. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with clauses (a) and (b)
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 clause (d).




     (d) The Administrative Agent shall record each assignment made in
accordance with this Section 10.11 in the Register pursuant to clause (a)
of Section 2.5. The Register shall be available for inspection by the Borrowers
and any Lender, at any reasonable time and from time to time upon reasonable prior
notice. In connection with each assignment of Synthetic Revolving Deposits, the
applicable Synthetic Revolving Deposit of the assigning Lender shall not be released, but
shall instead be purchased by the relevant assignee and continue to be held for
application (to the extent not already applied) in accordance with Article II to
satisfy such assignee’s obligations in respect of Synthetic Revolving Loans. Each Lender
with a Synthetic Revolving Deposit agrees that immediately prior to each assignment by a
Lender (i) the Administrative Agent shall establish a new Synthetic Revolving Deposit
Sub-Account in the name of the assignee Lender, (ii) unless otherwise consented to by the
Administrative Agent, a corresponding portion of the applicable Synthetic Revolving
Deposit credited to the Synthetic Revolving Deposit Sub-Account of the assigning Lender
shall be purchased by the assignee Lender and shall be transferred from the assigning
Lender’s Synthetic Revolving Deposit Sub-Account to the assignee
Lender’s Synthetic
Revolving Deposit Sub-Account, and (iii) if after giving effect to such assignment the
applicable Synthetic Revolving Deposit of assigning Lender shall be zero, the
Administrative Agent shall close the applicable Synthetic Revolving Deposit Sub-Account
of such assignor.




     (e) Any Lender may, without the consent of, or notice to, the Borrowers or the
Administrative Agent, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and/or obligations
under this Agreement (including all or a portion of its Commitments and/or Loans owing to
it and/or any portion of the Synthetic Revolving Deposit made by 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 applicable Borrower, the Agents 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, modification or waiver with respect to any of the
items set forth in clauses (a) through (e) of Section 10.1, in each case
except as otherwise specifically provided in a Loan Document. Subject to clause
(e), the Borrowers agree that each Participant shall be entitled to the benefits of
Sections 4.3, 4.4, 4.5, 4.6,
7.1.1, 10.3
and 10.4 to the same extent as if it were a Lender and had acquired its interest
by assignment



95









 







pursuant to clause (b). To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 4.9 as though it were a
Lender, provided such Participant agrees to the subject to
Section 4.8
as though it were a Lender,




     (f) A Participant shall not be entitled to receive any greater payment under
Sections 4.3, 4.4, 4.5, 4.6, 10.3 and
10.4 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 applicable Borrower’s prior
written consent. In addition, if at the time of the sale of such participation,
any greater Taxes subject to payment under Section 4.6 would apply to the
Participant than applied to the applicable Lender, then such Participant shall not
be entitled to any payment under Section 4.6 with respect to the portion of
such Taxes as exceeds the Taxes applicable to the Lender at the time of the sale of
the participation unless the Participant’s request for the applicable Borrower’s
prior written consent for the Participation described in the first sentence of this
clause states that such greater Taxes would be applicable to such Participant.




     (g) Each Lender that sells a participating interest in any Loan or Synthetic
Revolving Deposit to a Participant shall, as agent of the applicable Borrower
solely for the purpose of this Section 10.11, record in book entries
maintained by such Lender the name and the amount of the participating interest of
each Participant entitled to receive payments in respect of such participating
interests.




     (h) 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 of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.



     SECTION 10.12 Other Transactions. Nothing contained herein shall preclude
either Agent or any Lender from engaging in any transaction, in addition to those
contemplated by the Loan Documents, with either Borrower or any of their respective
Affiliates in which such Borrower or Affiliate is not restricted hereby from engaging
with any other Person.



     SECTION 10.13 Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE LENDERS OR THE BORROWERS IN
CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF THE
STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST
ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE AGENTS’ OPTION, IN THE COURTS OF
ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH BORROWER




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HEREBY IRREVOCABLY APPOINTS CT CORPORATION SYSTEMS (THE “PROCESS AGENT”), WITH AN
OFFICE ON THE DATE HEREOF AT 111 EIGHTH AVENUE, NEW YORK, NEW YORK 10011, UNITED STATES,
AS ITS AGENT TO RECEIVE, ON ITS BEHALF AND ON BEHALF OF ITS PROPERTY, SERVICE OF COPIES
OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH
LITIGATION OR ANY ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING
A COPY OF SUCH PROCESS TO SUCH PERSON IN CARE OF THE PROCESS AGENT AT THE PROCESS AGENT’S
ABOVE ADDRESS, AND EACH BORROWER HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS
AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE, EACH
BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS
FOR NOTICES SPECIFIED IN SECTION 10.2. EACH BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY
HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.




     SECTION 10.14 Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE COLLATERAL
AGENT, EACH LENDER AND EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, EACH LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT,
SUCH LENDER OR EACH BORROWER IN CONNECTION THEREWITH. EACH BORROWER ACKNOWLEDGES AND
AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND
EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND
EACH LENDER ENTERING INTO THE LOAN DOCUMENTS.



     SECTION 10.15 Judgment Currency. This is an international loan transaction
in which the specification of Dollars and payment in New York City is of the essence, and
the obligations of each Borrower under this Agreement to make payment to (or for the
account of) a Lender in Dollars shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any other currency or in
another place except to the extent that such tender or recovery results in the effective
receipt by such Lender in New York City of the full amount of Dollars payable to such
Lender under this Agreement. If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in Dollars into another currency (in this
Section 10.15 called the “judgment currency”), the rate of exchange that
shall be applied shall be that at which in accordance with normal banking procedures the



97









 




Administrative Agent could purchase such Dollars at its New York City office with the
judgment currency on the Business Day next preceding the day on which such judgment is
rendered. The obligation of each Borrower in respect of any such sum due from it to
either Agent or any Lender hereunder or under any Loan Document (in this Section
10.15 called an “Entitled Person”) shall, notwithstanding the rate of
exchange actually applied in rendering such judgment, be discharged only to the extent
that on the Business Day following receipt by such Entitled Person of any sum adjudged
to be due hereunder in the judgment currency such Entitled Person may in accordance with
normal banking procedures purchase and transfer Dollars to New York City with the amount
of the judgment currency so adjudged to be due; and such Borrower hereby, as a separate
obligation and notwithstanding any such judgment, agrees to indemnify such Entitled
Person against, and to pay such Entitled Person on demand, in Dollars, the amount (if
any) by which the sum originally due to such Entitled Person in Dollars hereunder
exceeds the amount of the Dollars so purchased and transferred.




     SECTION 10.16 Confidentiality. The Lenders, the Administrative Agent and the
Collateral Agent shall hold all non-public information obtained pursuant to or in
connection with this Agreement or any other Loan Document about each Borrower or any of
its Subsidiaries or Affiliates in accordance with their customary procedures for handling
confidential information of this nature, but may make disclosure (a) pursuant to the
order of any court or administrative agency or in any pending legal or administrative
proceeding, or otherwise as required by applicable law or compulsory legal process, (b)
upon the request or demand of any regulatory authority having jurisdiction over any
Lender, the Administrative Agent, the Collateral Agent or any of their Affiliates, (c) to
the extent that such information becomes publicly available other than by reason of
disclosure in violation of this Section, (d) to the Lenders, the Administrative Agent,
the Collateral Agent or any of their Affiliates and their respective employees, legal
counsel, independent auditors and other experts or agents who need to know such
information in connection with the consummation of the transactions contemplated in the
Loan Documents and who are informed of the confidential nature of such information, (e)
to assignees, participants or hedge or swap counterparties (and their respective
professional advisors) or potential assignees, participants or hedge or swap
counterparties (and their respective professional advisors) who agree to be bound by the
terms of this Section or substantially similar confidentiality provisions or (f) for
purposes of establishing a “due diligence” defense.



     Notwithstanding the foregoing, any party to this Agreement (and each Affiliate,
director, officer, employee, agent or representative of the foregoing or such Affiliate)
may disclose to any and all persons, without limitation of any kind, the tax treatment
and tax structure of the transactions contemplated herein and all materials of any kind
(including opinions or other tax analyses) that are provided to such party relating to
such tax treatment or tax structure. The foregoing language is not intended to waive any
confidentiality obligations otherwise applicable under this Agreement except with respect
to the information and materials specifically referenced in the preceding sentence. This
authorization does not extend to disclosure of any other information, including (i) the
identity of participants or potential participants in the transactions contemplated
herein (and no party shall disclose any information relating to such tax treatment and
tax structure to the extent nondisclosure is reasonably necessary in order to comply with
applicable securities laws (it being understood that, for such purpose, the tax treatment
of the transactions contemplated by this Agreement is the purported or claimed U.S.
Federal income tax treatment of such transactions and the tax structure of such
transaction is any fact that



98









 




may be relevant to understanding the purported or claimed U.S. Federal income tax
treatment of such transactions), (ii) the existence or status of any negotiations, or
(iii) any financial, business, legal or personal information of or regarding a party or
its affiliates, or of or regarding any participants or potential participants in the
transactions contemplated herein (or any of their respective affiliates), in each case to
the extent such other information is not related to the tax treatment or tax structure of
the transactions contemplated herein.




     SECTION 10.17 Independence of Covenants and Default Provisions. All
covenants and default provisions contained in this Agreement or any other Loan Document
shall be given independent effect such that, in the event a particular action or
condition is not permitted by any of such covenants or default provisions, the fact that
it would be permitted by an exception to, or be otherwise within the limitations of,
another covenant or default provision shall not, unless expressly so provided in such
first covenant or default provision, avoid the occurrence of a Default or an Event of
Default if such action is taken or such condition exists



     SECTION 10.18 Counsel Representation. EACH BORROWER ACKNOWLEDGES AND AGREES
THAT IT HAS BEEN REPRESENTED BY COMPETENT COUNSEL IN THE NEGOTIATION OF THIS AGREEMENT,
AND THAT ANY RULE OR CONSTRUCTION OF LAW ENABLING SUCH BORROWER TO ASSERT THAT ANY
AMBIGUITIES OR INCONSISTENCIES IN THE DRAFTING OR PREPARATION OF THE TERMS OF THIS
AGREEMENT SHOULD DIMINISH ANY RIGHTS OR REMEDIES OF THE AGENTS OR THE OTHER SECURED
PARTIES ARE HEREBY WAIVED BY SUCH BORROWER.



     SECTION 10.19 No Immunity. To the extent that the Borrowers may be or become
entitled, in any jurisdiction in which judicial proceedings may at any time be commenced
with respect to this Agreement or any other Loan Document, to claim for itself or its
property any immunity from suit, court jurisdiction, attachment prior to judgment,
attachment in aid of execution of a judgment, execution of a judgment or from any other
legal process or remedy relating to its obligations under this Agreement or any other
Loan Document, and to the extent that in any such jurisdiction there may be attributed
such an immunity (whether or not claimed), the Borrowers hereby irrevocably agree not to
claim and hereby irrevocably waives such immunity to the fullest extent permitted by the
laws of such jurisdiction and agrees that the foregoing waiver shall have the fullest
extent permitted under the Foreign Sovereign Immunities Act of 1976 of the United States
of America and is intended to be irrevocable for purposes of such Act.



     SECTION 10.20 Patriot Act. Each Lender hereby notifies the Borrowers that
pursuant to the requirements of the Patriot Act, it is required to obtain, verify and
record information that identifies the Borrowers, which information includes the name and
address of the Borrowers and other information that will allow such Lender to identify
the Borrowers in accordance with the Patriot Act.



     SECTION 10.21 Joint and Several Obligations. All obligations of the
Borrowers hereunder and under the other Loan Documents shall be joint and several.



[Remainder of page intentionally left blank]





99












 





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



	 	 	 	 	 
	 	ASHMORE ENERGY INTERNATIONAL,

as Borrower

 	 
	 	By:  	/s/ Brent de Jong
 	 
	 	 	Name:  	Brent de Jong 	 
	 	 	Title  	Director and Chief Executive Officer 	 
	 



Credit Agreement




 









 








	 	 	 	 	 
	 	AEI FINANCE HOLDING LLC,

as U.S. Borrower

 	 
	 	By:  	/s/ Brent de Jong
 	 
	 	 	Name:  	Brent de Jong 	 
	 	 	Title:  	President 	 
	 



Credit Agreement



 









 






	 	 	 	 	 
	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as Administrative Agent and a Lender 

 	 
	 	By:  	/s/ Brian T Caldwell
 	 
	 	 	Name:  	Brian T Caldwell 	 
	 	 	Title:  	Director 	 
	 
	 	By:  	/s/ Laurence Lapeyre
 	 
	 	 	Name:  	Laurence Lapeyre 	 
	 	 	Title:  	Associate 	 
	 



Credit Agreement




 









 






	 	 	 	 	 
	 	CREDIT SUISSE SECURITIES (USA) LLC,

as a Joint Lead Arranger and Documentation Agent

 	 
	 	By:  	/s/ Joseph Adipietro
 	 
	 	 	Name:  	Joseph Adipietro 	 
	 	 	Title:  	Managing Director 	 
	 



Credit Agreement




 









 






	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as Collateral Agent and a Lender

 	 
	 	By:  	/s/
Robert W. Traband
 	 
	 	 	Name:  	Robert W. Traband 	 
	 	 	Title:  	Executive Director 	 
	 



 









 






	 	 	 	 	 
	 	J.P. MORGAN SECURITIES, INC., 

as a Joint Lead Arranger

 	 
	 	By:  	/s/
Robert W. Traband
 	 
	 	 	Name:  	Robert W. Traband 	 
	 	 	Title:  	Executive Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ABN AMRO BANK, N.V.

as a Lender

 	 
	 	By:  	/s/ Oscar Taylhardat
 	 
	 	 	Name:  	Oscar Taylhardat 	 
	 	 	Title:  	Head of Services.
	 
	 	 	
Email Address: oscar.taylhardat@ve.abnamro.com


Fax: 58-212-957-0264


Telephone: 58-212-957-0301 	 
	 
	 	By:  	/s/ Olmedo Cabello
 	 
	 	 	Name:  	Olmedo Cabello 	 
	 	 	Title:  	Country Financial Officer.
	 
	 	 	

Email Address: olmedo.cabello@ve.abnamro.com




Fax: 58-212-957-0264




Telephone: 58-212-957-0324 
	 
	 



 









 






	 	 	 	 	 
	 	Bayerische Landesbank, New York Branch,

as a Lender

 	 
	 	By:  	/s/ Catherine Schilling
 	 
	 	 	Name:  	Catherine Schilling 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	/s/ Donna M. Quilty
 	 
	 	 	Name:  	Donna M. Quilty 	 
	 	 	Title:  	Vice President 	 
	 



Credit Agreement





 









 






	 	 	 	 	 
	 	Citibank, N.A.,

as a Lender

 	 
	 	By:  	/s/ Oscar Cragwell
 	 
	 	 	Name:  	Oscar Cragwell 	 
	 	 	Title:  	Vice President 	 
	 



Credit Agreement





 









 






	 	 	 	 	 	 
	 	DEUTSCHE BANK AG, LONDON BRANCH

as a Lender

 
	 	By:  	/s/
Christopher Flanagan
 	/s/ Diane Anderson
	 	 	Name:  	Christopher Flanagan	Diane Anderson 
	 	 	Title:  	VP	AVP 




Credit Agreement




 









 









	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P., 

as a Lender

 	 
	 	By:  	/s/ Mark Walton
 	 
	 	 	Name:  	Mark Walton 	 
	 	 	Title:  	Authorized Signatory 	 



Credit Agreement




 









 






	 	 	 	 	 
	 	LEHMAN BROTHERS COMMERCIAL BANK,

as a Lender

 	 
	 	By:  	/s/ Brian McNany
 	 
	 	 	Name:  	Brian McNany 	 
	 	 	Title:  	Authorized Signatory 	 
	 



Credit Agreement