**Exhibit 10(a)(1)**

** **

 

 

 

**FIVE-YEAR REVOLVING CREDIT AGREEMENT**

 

 

**Dated as of July 28, 2004**

 

among

 

**ALLTEL CORPORATION,**

as the Borrower,

 

**BANK OF AMERICA, N.A.,**as the Administrative Agent andL/C Issuer,

 

**JPMORGAN CHASE BANK,**

as the SyndicationAgent,

 

**BANC OF AMERICA SECURITIES LLC andJ.P. MORGAN SECURITIES INC.,**

as the Joint LeadArrangers and Joint Book Managers,

 

**CITICORP USA, INC., KEYBANK NATIONALASSOCIATION,WACHOVIA BANK, NATIONAL ASSOCIATION,  and BARCLAYS BANK PLC,**

as theCo-Documentation Agents,

 

and

 

**THE OTHER LENDERS PARTY HERETO**

 

**$1,500,000,000**

 

 

 

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**TABLE OF CONTENTS**

 
|                                                       | **Section** |                                                                                     |   |
|------------------------------------------------------------|-------------|------------------------------------------------------------------------------------------|--------|
|                                                       |        |                                                                                     |   |
| ARTICLE I. DEFINITIONS AND  ACCOUNTING TERMS          |        |                                                                                     |
|                                                       | 1.01        | Defined Terms.                                                                           |   |
|                                                       | 1.02        | Other Interpretive  Provisions.                                                          |   |
|                                                       | 1.03        | Accounting  Terms.                                                                       |   |
|                                                       | 1.04        | Rounding.                                                                                |   |
|                                                       | 1.05        | References to  Agreements and Laws.                                                      |   |
|                                                       | 1.06        | Letter of Credit Amounts.                                                                |   |
|                                                       |        |                                                                                     |   |
| ARTICLE II. THE COMMITMENTS AND  CREDIT EXTENSIONS    |        |                                                                                     |
|                                                       | 2.01        | Loans.                                                                                   |   |
|                                                       | 2.02        | Borrowings,  Conversions, and Continuations of Loans.                                    |   |
|                                                       | 2.03        | Letters  of Credit.                                                                      |   |
|                                                       | 2.04        | Prepayments.                                                                             |   |
|                                                       | 2.05        | Reduction or  Termination of Commitments.                                                |   |
|                                                       | 2.06        | Change of  Control.                                                                      |   |
|                                                       | 2.07        | Repayment  of Outstanding Amount of all Loans.                                           |   |
|                                                       | 2.08        | Interest.                                                                                |   |
|                                                       | 2.09        | Fees.                                                                                    |   |
|                                                       | 2.10        | Computation of  Interest and Fees.                                                       |   |
|                                                       | 2.11        | Evidence of  Debt.                                                                       |   |
|                                                       | 2.12        | Payments  Generally.                                                                     |   |
|                                                       | 2.13        | Sharing  of Payments.                                                                    |   |
|                                                       |        |                                                                                     |   |
| ARTICLE III. TAXES, YIELD,  PROTECTION AND ILLEGALITY |        |                                                                                     |
|                                                       | 3.01        | Taxes.                                                                                   |   |
|                                                       | 3.02        | Illegality.                                                                              |   |
|                                                       | 3.03        | Inability to Determine  Rates.                                                           |   |
|                                                       | 3.04        | Increased  Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans. |   |
|                                                       | 3.05        | Funding  Losses.                                                                         |   |
|                                                       | 3.06        | Matters  Applicable to all Requests for Compensation.                                    |   |
|                                                       | 3.07        | Survival.                                                                                |   |
|                                                       |        |                                                                                     |   |
| ARTICLE IV. CONDITIONS PRECEDENT                      |        |                                                                                     |
|                                                       | 4.01        | Conditions  to Closing.                                                                  |   |
|                                                       | 4.02        | Conditions to all  Credit Extensions.                                                    |   |
|                                                       |        |                                                                                     |   |
| ARTICLE V. REPRESENTATIONS AND  WARRANTIES            |        |                                                                                     |
|                                                       | 5.01        | Existence,  Qualification, and Power; Compliance with Laws.                              |   |
|                                                       | 5.02        | Authorization; No  Contravention.                                                        |   |
|                                                       | 5.03        | Governmental Authorization.                                                              |   |
|                                                       | 5.04        | Binding  Effect.                                                                         |   |
|                                                       | 5.05        | Financial  Statements; No Material Adverse Effect.                                       |   |
|                                                       | 5.06        | Litigation.                                                                              |   |
|                                                       | 5.07        | No Default.                                                                              |   |
|                                                       | 5.08        | Ownership of Property;  Liens.                                                           |   |
|                                                       | 5.09        | Environmental Compliance.                                                                |   |
|                                                            |             |                                                                                          |        |  |  |  |  |  |  |

 

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|                                               | 5.10   | Taxes.                                                                                      |   |
|----------------------------------------------------|--------|---------------------------------------------------------------------------------------------|--------|
|                                               | 5.11   | ERISA Compliance.                                                                           |   |
|                                               | 5.12   | Margin  Regulations; Investment Company Act; Public Utility Holding Company Act.            |   |
|                                               | 5.13   | Rank of Debt.                                                                               |   |
|                                               | 5.14   | Disclosure.                                                                                 |   |
|                                               |   |                                                                                        |   |
| ARTICLE VI. AFFIRMATIVE COVENANTS             |   |                                                                                        |
|                                               | 6.01   | Financial  Statements.                                                                      |   |
|                                               | 6.02   | Certificates; Other  Information.                                                           |   |
|                                               | 6.03   | Notices.                                                                                    |   |
|                                               | 6.04   | Payment  of Obligations.                                                                    |   |
|                                               | 6.05   | Preservation of  Existence, Etc.                                                            |   |
|                                               | 6.06   | Maintenance of Properties.                                                                  |   |
|                                               | 6.07   | Maintenance of Insurance.                                                                   |   |
|                                               | 6.08   | Compliance  with Laws.                                                                      |   |
|                                               | 6.09   | Books and  Records.                                                                         |   |
|                                               | 6.10   | Inspection  Rights.                                                                         |   |
|                                               | 6.11   | Use of  Proceeds.                                                                           |   |
|                                               |   |                                                                                        |   |
| ARTICLE VII. NEGATIVE COVENANTS               |   |                                                                                        |
|                                               | 7.01   | Liens.                                                                                      |   |
|                                               | 7.02   | Indebtedness.                                                                               |   |
|                                               | 7.03   | Subsidiary Indebtedness.                                                                    |   |
|                                               | 7.04   | Fundamental  Changes.                                                                       |   |
|                                               | 7.05   | Change in Nature of  Business.                                                              |   |
|                                               | 7.06   | Transactions with  Affiliates.                                                              |   |
|                                               | 7.07   | Burdensome  Agreements.                                                                     |   |
|                                               | 7.08   | Use of Proceeds.                                                                            |   |
|                                               | 7.09   | Total Debt to  Capitalization Ratio.                                                        |   |
|                                               |   |                                                                                        |   |
| ARTICLE VIII. EVENTS OF DEFAULT  AND REMEDIES |   |                                                                                        |
|                                               | 8.01   | Events of  Default.                                                                         |   |
|                                               | 8.02   | Remedies Upon Event of  Default.                                                            |   |
|                                               | 8.03   | Application of Funds.                                                                       |   |
|                                               |   |                                                                                        |   |
| ARTICLE IX. AGREEMENT AMONG LENDERS           |   |                                                                                        |
|                                               | 9.01   | Appointment  and Authorization of Administrative Agent.                                     |   |
|                                               | 9.02   | Delegation of Duties.                                                                       |   |
|                                               | 9.03   | Liability of  Agent-Related Persons.                                                        |   |
|                                               | 9.04   | Reliance by  Administrative Agent.                                                          |   |
|                                               | 9.05   | Notice of Default.                                                                          |   |
|                                               | 9.06   | Credit  Decision; Disclosure of Information by Administrative Agent and Syndication  Agent. |   |
|                                               | 9.07   | Indemnification  of Agent-Related Persons.                                                  |   |
|                                               | 9.08   | Administrative  Agent in its Individual Capacity.                                           |   |
|                                               | 9.09   | Successor  Administrative Agent.                                                            |   |
|                                               | 9.10   | Administrative  Agent May File Proofs of Claim.                                             |   |
|                                               | 9.11   | Other  Agents; Joint Book Managers, Joint Lead Arrangers.                                   |   |
|                                               |   |                                                                                        |   |
| ARTICLE X. MISCELLANEOUS                      |   |                                                                                        |
|                                               | 10.01  | Amendments, Etc.                                                                            |   |
|                                                    |        |                                                                                             |        |  |  |

 

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|   | 10.02           | Notices  and Other Communications; Facsimile Copies. |   |
|--------|-----------------|------------------------------------------------------|--------|
|   | 10.03           | No Waiver; Cumulative  Remedies.                     |   |
|   | 10.04           | Attorneys’ Fees,  Expenses and Taxes.           |   |
|   | 10.05           | Indemnification by the  Borrower.                    |   |
|   | 10.06           | Payments Set Aside.                                  |   |
|   | 10.07           | Successors and Assigns.                              |   |
|   | 10.08           | Confidentiality.                                     |   |
|   | 10.09           | Set-off.                                             |   |
|   | 10.10           | Interest Rate Limitation.                            |   |
|   | 10.11           | Counterparts.                                        |   |
|   | 10.12           | Integration.                                         |   |
|   | 10.13           | Survival of  Representations and Warranties.         |   |
|   | 10.14           | Severability.                                        |   |
|   | 10.15           | Foreign Lenders.                                     |   |
|   | 10.16           | Removal and  Replacement of Lenders.                 |   |
|   | 10.17           | Governing Law.                                       |   |
|   | 10.18           | Waiver of Right to  Trial by Jury.                   |   |
|   | 10.19           | TIME IS OF THE ESSENCE.                              |   |
|   | 10.20           | ENTIRE AGREEMENT.                                    |   |
|   | 10.21           | USA PATRIOT ACT NOTICE.                              |   |
|   | 10.22           | TERMINATION  OF EXISTING CREDIT AGREEMENTS.          |   |
|   |            |                                                 |   |
|   | SIGNATURE PAGES |                                                 |

 

iii

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| **SCHEDULES** |   |
|---------------|--------|
|          |   |   |   |
|          | 2.01   | Commitments and Pro  Rata Shares |   |
|          | 2.03   | Existing Letters of  Credit |   |
|          | 7.02   | Existing Borrower  Indebtedness and Subsidiary Indebtedness |   |
|          | 10.02  | Administrative Agent’s  Offices, Certain Addresses for Notices |   |

 

iv

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**FIVE-YEAR REVOLVING CREDIT AGREEMENT**

 

THIS FIVE-YEAR REVOLVINGCREDIT AGREEMENT (“***Agreement***”)is entered into as of July 28, 2004, among **ALLTEL CORPORATION**, aDelaware corporation (the “***Borrower***”), each lender from time to time party hereto(collectively, the “***Lenders***”and individually, a “***Lender***”), **BANK OF AMERICA, N.A.**, as theAdministrative Agent and L/C Issuer, and **JPMORGAN CHASE BANK,**as the SyndicationAgent.

 

The Borrower hasrequested that the Lenders extend a revolving credit facility to the Borrowerin the aggregate principal amount of up to $1,500,000,000, and the Lenders arewilling to do so on the terms and conditions set forth herein.

 

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

 

**ARTICLE I****.****DEFINITIONSAND ACCOUNTING TERMS**

 

**1.01****                        Defined Terms. **Asused in this Agreement, the following terms shall have the meanings set forthbelow:

 

***Administrative Agent*** means Bank ofAmerica in its capacity as administrative agent under any of the LoanDocuments, or any successor administrative agent.

 

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

 

***Administrative Questionnaire***means anAdministrative Questionnaire in a form supplied by the Administrative Agent.

 

***Affiliate*** means, as to any Person, anyother Person directly or indirectly controlling, controlled by, or under director indirect common control with, such Person. A Person shall be deemed to be “*controlled by*” any other Person if suchother Person possesses, directly or indirectly, power (a) to vote 10% or moreof the securities (on a fully diluted basis) having ordinary voting power forthe election of directors, managing general partners, or the equivalent, or (b)to direct or cause the direction of the management and policies of such Personwhether by contract or otherwise.

 

***Agent-Related Persons*** means theAdministrative Agent (including any successor administrative agent) and theSyndication Agent (including any successor syndication agent), together witheach of their respective Affiliates (including, in the case of Bank of Americain its capacity as the Administrative Agent, BAS, and in the case of JPMCB inits capacity as Syndication Agent, JPMorgan), and the officers, directors,employees, agents, and attorneys-in-fact of each such Person and Affiliate.

 

***Agreement*** means this Five-YearRevolving Credit Agreement.

 

***Applicable Rate*** means the appropriatepercentages per annum as set forth below, based upon the Debt Rating, relevantfee, and Type as set forth below;

 

1

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| **Pricing  Level** |   | **Debt  Ratings  S&P/Moody’s** | ** ** | **Facility  Fee** | ** ** | **Eurodollar  Rate Loan/  Letter of  Credit Fee** | ** ** | **Base Rate  Loan** | ** ** | **Utilization  Fee** | ** ** |
|--------------------|--------|-----------------------------------------|------------|-------------------|------------|---------------------------------------------------|------------|---------------------|------------|----------------------|------------|
| 1                  |   | A+/A1 or higher                         |       | .070              | %          |                                              | .180       | %                   |       | 0                    | %          |   | .050 | % |   |
| 2                  |   | A/A2                                    |       | .080              | %          |                                              | .220       | %                   |       | 0                    | %          |   | .050 | % |   |
| 3                  |   | A-/A3                                   |       | .100              | %          |                                              | .275       | %                   |       | 0                    | %          |   | .125 | % |   |
| 4                  |   | BBB+/Baa1                               |       | .125              | %          |                                              | .375       | %                   |       | 0                    | %          |   | .125 | % |   |
| 5                  |   | BBB/Baa2                                |       | .150              | %          |                                              | .600       | %                   |       | 0                    | %          |   | .125 | % |   |
| 6                  |   | BBB-/Baa3 or  lower                     |       | .250              | %          |                                              | .750       | %                   |       | 0                    | %          |   | .250 | % |   |

 

***Debt Rating*** means, as of any date ofdetermination, the rating as determined by either S&P or Moody’s(collectively, the “***Debt Ratings***”)of the Borrower’s non-credit-enhanced, senior unsecured long-term debt; *providedthat* if a Debt Rating is issued by each of the foregoing ratingagencies, then the higher of such Debt Ratings shall apply (with the DebtRating for Pricing Level 1 being the highest and the Debt Rating for PricingLevel 6 being the lowest), unless there is a split in Debt Ratings of more thanone level, in which case the Pricing Level that is one level higher than thePricing Level of the lower Debt Rating shall apply.

 

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

 

***Arranger*** means each of BAS andJPMorgan, each in its capacity as joint lead arranger and joint book manager.

 

***Assignment and Assumption*** means anAssignment and Assumption substantially in the form of ***Exhibit D***.

 

***Attributable Indebtedness*** means, onany date, (a) in respect of any capital lease of any Person, the capitalizedamount thereof that would appear on a balance sheet of such Person prepared asof such date in accordance with GAAP, and (b) in respect of any Synthetic LeaseObligation, the capitalized amount of the remaining lease payments under therelevant lease that would appear on a balance sheet of such Person prepared asof such date in accordance with GAAP if such lease were accounted for as acapital lease.

 

***Audited Financial Statements*** means theaudited Financial Statements of the Borrower and its Subsidiaries for thefiscal year ended December 31, 2003.

 

***Auto-Renewal Letter of Credit***has themeaning specified in ***Section 2.03(b)(iii)***.

 

***Bank of America*** means Bank of America,N.A. and its successors.

 

***Bank of America Fee Letter***has themeaning specified in ***Section 2.03(j)***.

 

***BAS***means Banc of America SecuritiesLLC and its successors.

 

2

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***Base Rate*** means, for any day, afluctuating rate per annum equal to the higher of (a) the Federal Funds Rateplus 1/2 of 1% and (b) the rate of interest in effect for such day as publiclyannounced from time to time by Bank of America as its “*prime rate*.”  The “*prime rate*” is a rate set by Bank ofAmerica based upon various factors including Bank of America’s costs anddesired return, general economic conditions and other factors, and is used as areference point for pricing some loans, which may be priced at, above, or belowsuch announced rate.  Any change in suchrate announced by Bank of America shall take effect at the opening of businesson the day specified in the public announcement of such change.

 

***Base Rate Loan*** means a Borrowing thatbears interest based on the Base Rate or a L/C Borrowing.

 

***Board*** means the Board of Governors ofthe Federal Reserve System of the United States of America.

 

***Borrower*** has the meaning set forth inthe introductory paragraph hereto.

 

***Borrowing*** means a borrowing consistingof simultaneous Loans of the same Type and, in the case of Eurodollar RateLoans, having the same Interest Period made by each of the Lenders pursuant to ***Section 2.01***.

 

***Business Day*** means any day other thana Saturday, Sunday, or other day on which commercial banks are authorized toclose under the Laws of, or are in fact closed in, Dallas, Texas or New York,New York, and, if such day relates to any Eurodollar Rate Loan, means any suchday on which dealings in Dollar deposits are conducted by and between banks inthe London interbank eurodollar market.

 

***Capitalization*** means, on any date,Total Debt plus Consolidated Net Worth.

 

***Cash Collateralize***has the meaning specifiedin ***Section 2.03(g)***.

 

***Change of Control*** means, with respectto any Person, an event or series of events by which:

 

(a)                                  any“*person*”or “*group*”(as such terms are used in*Sections 13(d)*and*14(d)*of the*SecuritiesExchange Act of 1934*, but excluding any employee benefit plan ofsuch Person or its subsidiaries, and any person or entity acting in itscapacity as trustee, agent, or other fiduciary or administrator of any suchplan), becomes the “*beneficial owner*” (as defined in *Rules 13d-3*and *13d-5*under the *SecuritiesExchange Act of 1934*, except that a person or group shall be deemedto have “*beneficialownership*” of all securities that such person or group has the rightto acquire (such right, an “***option right***”), if such right is exercisable immediatelyor within 60 days), directly or indirectly, of 35% or more of the equitysecurities of such Person entitled to vote for members of the board ofdirectors or equivalent governing body of such Person on a fully-diluted basis(and taking into account all such securities that such person or group has theright to acquire pursuant to any option right); or

 

(b)                                 duringany period of 12 consecutive months, a majority of the members of the board ofdirectors or other equivalent governing body of such Person cease to becomposed of individuals (i) who were members of that board or equivalentgoverning body on the first day of such period, (ii) whose election ornomination to that board or equivalent governing body was approved byindividuals referred to in ***clause (i)*** above constituting at the time of suchelection or nomination at least a majority of that board or equivalentgoverning body, or (iii) whose election or nomination to that board or otherequivalent governing body was approved by individuals

 

3

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referred to in ***clauses (i)*** and ***(ii)*** aboveconstituting at the time of such election or nomination at least a majority ofthat board or equivalent governing body.

 

***Closing Date*** means the first date allthe conditions precedent in ***Section 4.01*** are satisfied or waived in accordancewith ***Section 4.01***(or, in the case of ***Section 4.01(b),***waived by the Person entitled to receive the applicable payment).

 

***Code*** means the Internal Revenue Codeof 1986.

 

***Commitment*** means, as to each Lender,its obligation (a) to make Loans to the Borrower pursuant to ***Section 2.01***,and (b) purchase participations in L/C Obligations, in an aggregate principalamount at any one time outstanding not to exceed the amount set forth on ***Schedule 2.01***orin the Assignment and Assumption pursuant to which such Lender becomes a partyhereto, as applicable, as such amount may be reduced or adjusted from time totime in accordance with this Agreement.

 

***Compliance Certificate*** means acertificate substantially in the form of ***Exhibit C***.

 

***Consolidated Net Tangible Assets***means, at any time, with respect to the Borrower, the total assets appearing onthe most recently prepared consolidated balance sheet of the Borrower and itsSubsidiaries as of the end of the most recent fiscal quarter of the Borrowerfor which such balance sheet is available, prepared in accordance with GAAP, *less*(a) all current liabilities as shown on such balance sheet and (b) the value(net of any applicable reserves), as shown on such balance sheet of (i) alltrade names, trademarks, licenses, patents, copyrights, and goodwill, (ii)organizational costs, and (iii) deferred charges, (other than prepaid itemssuch as insurance, Taxes, interest, commission, rents, and similar items andtangible assets being amortized).

 

***Consolidated Net Worth*** means, at anytime, consolidated net stockholders equity of the Borrower and itsSubsidiaries, determined in accordance with GAAP.

 

***Contractual Obligation*** means, as toany Person, any provision of any security issued by such Person or of anyagreement, instrument, or other undertaking to which such Person is a party orby which it or any of its property is bound.

 

***Credit Extension*** means: (a) aBorrowing or (b) a L/C Credit Extension.

 

***Current Financials*** means, at the timeof any determination thereof, the more recently delivered to the Lenders ofeither (a) (i) the Audited Financial Statements, and (ii) the unauditedFinancial Statements for the three-month period ended March 31, 2004,calculated on a consolidated basis for the Borrower and its Subsidiaries, or(b) the Financial Statements required to be delivered under ***Sections 6.01(a)*** or ***(b)***, as the case maybe.

 

***Debt Rating*** has the meaning set forthin the definition of “***Applicable Rate***.”

 

***Debtor Relief Laws*** means theBankruptcy Code of the United States of America, and all other liquidation,conservatorship, bankruptcy, assignment for the benefit of creditors,moratorium, rearrangement, receivership, insolvency, reorganization, or similardebtor relief Laws of the United States of America or other applicablejurisdictions from time to time in effect and affecting the rights of creditorsgenerally.

 

4

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

 

***Default Rate*** means an interest rateequal to (a) with respect to Base Rate Loans, (i) the Base Rate *plus*(ii) the Applicable Rate, if any, for Base Rate Loans *plus* (iii) 2.0% per annum,(b) with respect to a Eurodollar Rate Loan, (i) the Eurodollar Rate for suchEurodollar Loan *plus* (ii) the Applicable Rate for Eurodollar Rate Loans *plus*(iii) 2.0% per annum, in each case to the fullest extent permitted byapplicable Laws, and (c) with respect to the Letter of Credit Fee, (i) theApplicable Rate for Letter of Credit Fee *plus* (ii) 2.0% per annum, in each case tothe fullest extent permitted by applicable Laws.

 

***Defaulting Lender*** means any Lenderthat (a) has failed to fund any portion of any Loan or participation in any L/CObligation required to be funded by it hereunder within one Business Day of thedate required to be funded by it hereunder, (b) has otherwise failed to payover to the Administrative Agent or any other Lender any other amount requiredto be paid by it hereunder within one Business Day of the date when due, unlessthe subject of a good faith dispute, or (c) has been deemed insolvent or becomethe subject of a bankruptcy or insolvency proceeding.

 

***Dispose*** means the sale, conveyance,transfer, license, or other disposition (including any sale and leasebacktransaction) of any property by any Person.

 

***Dollar*** and ***$*** means lawful money of the United States ofAmerica.

 

***Eligible Assignee*** has the meaningspecified in ***Section 10.07(h).***

 

***Environmental Laws*** means all Lawsrelating to environmental, health, safety, and land use matters applicable toany property.

 

***ERISA*** means the Employee RetirementIncome Security Act of 1974 and any regulations issued pursuant thereto.

 

***ERISA Affiliate*** means any trade orbusiness (whether or not incorporated) under common control with the Borrowerwithin the meaning of *Section 414(b)*or*(c)*of the**Code(and *Sections414(m)*and*(o)*of the**Code for purposes ofprovisions relating to *Section 412*of the**Code).

 

***ERISA Event*** means (a) a ReportableEvent with respect to a Pension Plan, (b) a withdrawal by the Borrower or anyERISA Affiliate from a Pension Plan subject to *Section 4063*of ERISAduring a plan year in which it was a substantial employer (as defined in *Section 4001(a)(2)*of**ERISA) or a cessation of operations that is treated as sucha withdrawal under *Section 4062(e)*of**ERISA*,*(c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate froma Multiemployer Plan or notification that a Multiemployer Plan is inreorganization, (d) the filing of a notice of intent to terminate, thetreatment of a Plan amendment as a termination under *Sections 4041*or *4041A*of**ERISA,or the commencement of proceedings by the PBGC to terminate a Pension Plan orMultiemployer Plan, (e) an event or condition which constitutes grounds under *Section 4042*of**ERISA for the termination of, or the appointment of atrustee to administer, any Pension Plan or Multiemployer Plan, or (f) theimposition of any liability under *Title IV*of**ERISA, other than PBGCpremiums due but not delinquent under *Section 4007*of ERISA, upon theBorrower or any ERISA Affiliate.

 

5

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***Eurodollar Rate*** means, for anyInterest Period, with respect to any Eurodollar Rate Loan:

 

(a)                                  therate per annum equal to the rate determined by the Administrative Agent to bethe offered rate that appears on the page of the Telerate screen (or anysuccessor thereto) that displays an average British Bankers AssociationInterest Settlement Rate for deposits in Dollars (for delivery on the first dayof such Interest Period) with a term equivalent to such Interest Period,determined as of approximately 11:00 a.m. (London time) two Business Days priorto the first day of such Interest Period; or

 

(b)                                 ifthe rate referenced in the preceding ***clause (a)*** does not appear on such page or service orsuch page or service shall cease to be available, the rate per annum equal tothe rate determined by the Administrative Agent to be the offered rate on suchother page or other service that displays an average British BankersAssociation Interest Settlement Rate for deposits in Dollars (for delivery onthe first day of such Interest Period) with a term equivalent to such InterestPeriod, determined as of approximately 11:00 a.m. (London time) two BusinessDays prior to the first day of such Interest Period; or

 

(c)                                  ifthe rates referenced in the preceding ***clauses (a)*** and ***(b)*** are not available, the rate per annum determined bythe Administrative Agent as the rate of interest (rounded upward to the next1/100th of 1%) at which deposits in Dollars for delivery on the first day ofsuch Interest Period in same day funds in the approximate amount of theEurodollar Rate Loan being made, continued or converted by Bank of America andwith a term equivalent to such Interest Period would be offered by Bank ofAmerica’s London Branch to major banks in the London interbank eurodollarmarket at their request at approximately 4:00 p.m. (London time) two BusinessDays prior to the first day of such Interest Period.

 

***Eurodollar Rate Loan*** means a Borrowingthat bears interest at a rate based on the Eurodollar Rate.

 

***Event of Default*** means any of theevents or circumstances specified in ***Section 8.01***.

 

***Existing Credit Agreements*** means (a)that certain 364-Day Revolving Credit Agreement dated as of July 30, 2003,among the Borrower, Bank of America, as administrative agent, and a syndicateof lenders, and (b) that certain multi-year Amended and Restated CreditAgreement dated as of June 28, 2001, among the Borrower, Bank of America,as administrative agent, and a syndicate of lenders, as amended and modifiedfrom time to time.

 

***Existing Letters of Credit*** means the lettersof credit outstanding on the date hereof and described on ***Schedule 2.03***.

 

***Facility Fee*** has the meaning set forthin ***Section 2.09(a)***.

 

***Federal Funds Rate*** means, for any day,the rate per annum equal to the weighted average of the rates on overnight Federalfunds transactions with members of the Federal Reserve System arranged byFederal funds brokers on such day, as published by the Federal Reserve Bank ofNew York on the Business Day next succeeding such day; *provided**that*(a) if such day is not a Business Day, the Federal Funds Rate for such dayshall be such rate on such transactions on the next preceding Business Day asso published on the next succeeding Business Day, and (b) if no such rate is sopublished on such next succeeding Business Day, the Federal Funds Rate for suchday shall be the average rate (rounded 

 

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upwards, if necessary, toa whole multiple of 1/100 of 1%) charged to Bank of America on such day on suchtransactions as determined by the Administrative Agent.

 

***Financial Statements*** means balancesheets, statements of operations, and statements of cash flows prepared inaccordance with GAAP (including the notes thereto), which statements ofoperations and statements of cash flows shall be in comparative form to thecorresponding period of the preceding fiscal year, and which balance sheetsshall be in comparative form to the corresponding date of the preceding fiscalyear. In addition, any annual Financial Statements must include statements ofshareholders’ equity prepared in accordance with GAAP, which statements ofshareholders’ equity shall be in comparative form to the prior fiscal year-endfigures.

 

***Foreign Lender*** has the meaningspecified in ***Section 10.15***.

 

***GAAP*** means generally acceptedaccounting principles in the United States set forth in the opinions andpronouncements of the Accounting Principles Board and the American Institute ofCertified Public Accountants and statements and pronouncements of the FinancialAccounting Standards Board or such other principles as may be approved by asignificant segment of the accounting profession in the United States, that areapplicable to the circumstances as of the date of determination, consistentlyapplied.  If at any time any change inGAAP would affect the computation of any financial ratio or requirement setforth in any Loan Document, and either the Borrower or the Required Lendersshall so request, the Administrative Agent, the Lenders, and the Borrower shallnegotiate in good faith to amend such ratio or requirement to preserve theoriginal intent thereof in light of such change in GAAP (subject to theapproval of the Required Lenders); *provided that*, until so amended, (a) suchratio or requirement shall continue to be computed in accordance with GAAPprior to such change therein, and (b) the Borrower shall provide to theAdministrative Agent and the Lenders Financial Statements and other documentsrequired under this Agreement or as reasonably requested hereunder settingforth a reconciliation between calculations of such ratio or requirement madebefore and after giving effect to such change in GAAP.

 

***Governmental Authority*** means anynation or government, any state or other political subdivision thereof, anyagency, authority, instrumentality, regulatory body, court, administrativetribunal, central bank, or other entity exercising executive, legislative,judicial, taxing, regulatory, or administrative powers or functions of orpertaining to government, and any corporation or other entity owned orcontrolled, through stock or capital ownership or otherwise, by any of theforegoing.

 

***Guaranty Obligation*** means, as to anyPerson, (a) any obligation, contingent or otherwise, of such Personguaranteeing or having the economic effect of guaranteeing any Indebtedness orother obligation of another Person (the “*primary obligor*”) in any manner, whetherdirectly or indirectly, and including any obligation of such Person, direct orindirect, (i) to purchase or pay (or advance or supply funds for the purchaseor payment of) such Indebtedness or other obligation, (ii) to purchase or leaseproperty, securities, or services for the purpose of assuring the obligee inrespect of such Indebtedness or other obligation of the payment of suchIndebtedness or other obligation, (iii) to maintain working capital, equitycapital, or any other financial statement condition or liquidity or level ofincome or cash flow of the primary obligor so as to enable the primary obligorto pay such Indebtedness or other obligation, or (iv) entered into for thepurpose of assuring in any other manner the obligee in respect of suchIndebtedness or other obligation of the payment thereof or to protect suchobligee against loss in respect thereof (in whole or in part), or (b) any Lienon any assets of such Person securing any Indebtedness or other obligation ofany other Person, whether or not such Indebtedness or other obligation isassumed by such Person; *provided that* the term “*GuarantyObligation*” shall not include endorsements of instruments fordeposit or collection in the ordinary course of business.  The amount of

 

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any Guaranty Obligationshall be deemed to be an amount equal to the stated or determinable amount ofthe related primary obligation, or portion thereof, in respect of which suchGuaranty Obligation is made or, if not stated or determinable, the maximumreasonably anticipated liability in respect thereof as determined by theguaranteeing Person in good faith.

 

***Honor Date*** has the meaning specifiedin ***Section 2.03(c)(i)***.

 

***ICC*** has the meaning specified in ***Section 2.03(h)***.

 

***Indebtedness*** means, as to any Personat a particular time, all of the following:

 

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

 

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

 

(c)                                  netobligations of such Person under any Swap Contract in an amount equal to theSwap Termination Value payable by such Person;

 

(d)                                 allobligations of such Person to pay the deferred purchase price of property orservices (other than accounts payable, and accrued liabilities, as each arisein the ordinary course of business);

 

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

 

(f)                                    capitalleases and Synthetic Lease Obligations; and

 

(g)                                 allGuaranty Obligations of such Person in respect of any of the foregoing.

 

For all purposes hereof,the Indebtedness of any Person shall include the Indebtedness of anypartnership or joint venture (other than a joint venture that is itself acorporation or limited liability company) in which such Person is a generalpartner or a joint venturer, unless such Indebtedness is expressly madenon-recourse to such Person.  The amountof any capital lease or Synthetic Lease Obligation as of any date shall bedeemed to be the amount of Attributable Indebtedness in respect thereof as ofsuch date.

 

***Indemnified Liabilities*** has themeaning set forth in ***Section 10.05***.

 

***Indemnitees*****has the meaning set forthin ***Section 10.05***.

 

***Interest Payment Date*** means (a) as to anyEurodollar Rate Loan, the last day of each Interest Period applicable to suchEurodollar Rate Loan; *provided that*, if any Interest Period fora Eurodollar Rate Loan exceeds three months, the respective dates that fallevery three months after the beginning of such Interest Period shall also beInterest Payment Dates, (b) as to any Base Rate Loan, the last Business

 

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Day of each March, June,September, and December and the Termination Date, and (c) as to any Loan,the date such Loan becomes due and payable in accordance with this Agreement.

 

***Interest Period*** means, with respect toa Eurodollar Rate Loan, the period commencing on the date such Eurodollar RateLoan is disbursed or converted to or continued as a Eurodollar Rate Loan andending on the date one, two, three, or six months thereafter, as selected bythe Borrower in its Loan Notice or such other period of nine or twelve monthsthat is requested by the Borrower and consented to by all the Lenders; *provided**that*:

 

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

 

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

 

(c)                                  noInterest Period shall extend beyond the scheduled Termination Date.

 

***IRS*** means the United States InternalRevenue Service.

 

***ISP*** has the meaning set forth in ***Section 2.03(h)***.

 

***JPMCB***means JPMorgan Chase Bank andits successors.

 

***JPMorgan***means J.P. Morgan SecuritiesInc. and its successors.

 

***JPMorgan Fee Letter*** means theconfidential letter agreement dated May 21, 2004, among the Borrower, JPMorgan,and JPMCB.

 

***Laws*** means, collectively, allinternational, foreign, Federal, state, and local statutes, treaties, rules,guidelines, regulations, ordinances, codes, and administrative or judicialprecedents or authorities, including the interpretation or administration thereofby any Governmental Authority charged with the enforcement, interpretation, oradministration thereof, and all applicable administrative orders, directedduties, requests, licenses, authorizations, and permits of, and agreementswith, any Governmental Authority.

 

***L/C Advance*** means, with respect toeach Lender, such Lender’s funding of its participation in any L/C Borrowing inaccordance with its Pro Rata Share.

 

***L/C Borrowing*** means an extension ofcredit resulting from a drawing under any Letter of Credit which has not beenreimbursed on the date when made or refinanced as a Borrowing.

 

***L/C Credit Extension*** means, withrespect to any Letter of Credit, the issuance thereof or extension of theexpiry date thereof, or the renewal or increase of the amount thereof.

 

***L/C Issuer*** means Bank of America inits capacity as issuer of Letters of Credit hereunder, or any successor issuerof Letters of Credit hereunder.

 

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***L/C Obligations*** means, as of any dateof determination, the aggregate undrawn amount of all outstanding Letters ofCredit *plus*,without duplication, the aggregate of all Unreimbursed Amounts, including allL/C Borrowings. For all purposes of this Agreement, if on****any date of determination aLetter of Credit has expired by its terms but any amount may still be drawnthereunder by reason of the operation of Rule 3.14 of the ISP, such Letter ofCredit shall be deemed to be “outstanding” in the amount so remaining availableto be drawn.

 

***Lender*** has the meaning specified inthe introductory paragraph and, as the context requires, includes the L/CIssuer.

 

***Lending Office*** means, as to anyLender, the office or offices of such Lender described as such on ***Schedule 10.02***,or such other office or offices as a Lender may from time to time notify theBorrower and the Administrative Agent.

 

***Letter of Credit*** means any letter ofcredit issued hereunder****and shall include the Existing Letters ofCredit.

 

***Letter of Credit Application*** means anapplication and agreement for the issuance or amendment of a Letter of Creditin the form from time to time in use by the L/C Issuer.

 

***Letter of Credit Expiration Date*** meansthe date that is seven Business Days prior to the Termination Date.

 

***Letter of Credit Fee*** has the meaningset forth in ***Section 2.03(i)***.

 

***Letter of Credit Sublimit*** means anamount equal to $100,000,000. The Letter of Credit Sublimit is part of, and notin addition to, the Total Commitment.

 

***Lien*** means any mortgage, pledge,hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory orother), charge, or preference, priority, or other security interest orpreferential arrangement of any kind or nature whatsoever (including anyconditional sale or other title retention agreement, any financing lease havingsubstantially the same economic effect as any of the foregoing, and the filingof any financing statement under the Uniform Commercial Code or comparable Lawsof any jurisdiction), including the interest of a purchaser of accountsreceivable.

 

***Loan*** has the meaning specified in ***Section 2.01***.

 

***Loan Documents*** means (a) thisAgreement, (b) each Note, (c) the JPMorgan Fee Letter, (d) the Bank of AmericaFee Letter, (e) each Request for Credit Extension, (f) each ComplianceCertificate, (g) all agreements, documents, instruments, and certificates infavor of the Administrative Agent or any Lender (or the Administrative Agent onbehalf of Lenders) ever delivered in connection with or under this Agreement orotherwise delivered in connection with all or any part of the Obligationsevidenced by this Agreement, and (h) all renewals, extensions, and restatementsof, and amendments and supplements to, any of the foregoing.

 

***Loan Notice*** means a notice of (a) aBorrowing, (b) a conversion of Loans from one Type to the other, or (c) acontinuation of Eurodollar Rate Loans, in each case pursuant to ***Section 2.02(a),***which, if in writing, shall be substantially in the form of ***Exhibit A***.

 

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***Material Adverse Effect*** means, on any dateof determination, (a) a material adverse change in the financial condition oroperations of the Borrower and its Subsidiaries taken as a whole, (b) amaterial impairment of the ability of the Borrower to perform its obligationsunder any Loan Document to which it is a party, or (c) a material adverseeffect upon the legality or enforceability against the Borrower of any LoanDocument to which it is a party.

 

***Moody’s*** means Moody’s InvestorsService, Inc. and any successor thereto.

 

***Multiemployer Plan*** means any employeebenefit plan of the type described in *Section 4001(a)(3)*of ERISA, to whichthe Borrower or any ERISA Affiliate makes or is obligated to makecontributions, or during the preceding five plan years, has made or beenobligated to make contributions.

 

***Nonrenewal Notice Date*** has the meaningspecified in ***Section 2.03(b)(iii)***.

 

***Note*** means a promissory note made bythe Borrower in favor of a Lender evidencing the Loans made by such Lender,substantially in the form of ***Exhibit B.***

 

***Obligations*** means all advances to, anddebts, liabilities, obligations, covenants, and duties of, the Borrower arisingunder any and all Loan Documents or otherwise with respect to any Loan orLetter of Credit, whether direct or indirect (including those acquired by assumption),absolute or contingent, due or to become due, now existing or hereafterarising, and including interest that accrues after the commencement by oragainst the Borrower or any Affiliate thereof of any proceeding under anyDebtor Relief Laws naming such Person as the debtor in such proceeding,regardless of whether such interest and fees are allowed claims in suchproceeding.

 

***Organization Documents*** means (a) withrespect to any corporation, the certificate or articles of incorporation andthe bylaws (or equivalent or comparable constitutive documents with respect toany non-U.S. jurisdiction), (b) with respect to any limited liability company,the certificate or articles of formation or organization and operatingagreement, and (c) with respect to any partnership, joint venture, trust, orother form of business entity, the partnership, joint venture, or otherapplicable agreement of formation or organization and any agreement,instrument, filing, or notice with respect thereto filed in connection with itsformation with the applicable Governmental Authority in the jurisdiction of itsformation or organization, in each case as amended from time to time.

 

***Outstanding Amount***means, withoutduplication, (a) with respect to Loans on any date, the aggregate outstandingprincipal amount thereof after giving effect to any Borrowings and prepaymentsor repayments of any Loans occurring on such date, and (b) with respect to L/CObligations on any date, the amount of such L/C Obligations on such date aftergiving effect to any L/C Credit Extensions occurring on such date and any otherchanges in the aggregate amount of the L/C Obligations occurring on such date,including as a result of any reimbursements of outstanding unpaid drawingsunder any Letters of Credit or any reductions in the maximum amount availablefor drawing under any Letters of Credit taking effect on such date.

 

***Participant*** has the meaning specifiedin ***Section 10.07(d).***

 

***PBGC*** means the Pension BenefitGuaranty Corporation.

 

***Pension Plan*** means any “*employeepension benefit plan*” (as such term is defined in *Section 3(2)*of**ERISA), other than a Multiemployer Plan, that is subject to*Title IV*ofERISA and is 

 

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sponsored or maintainedby the Borrower or any ERISA Affiliate or to which the Borrower or any ERISAAffiliate contributes or has an obligation to contribute, or in the case of amultiple employer or other plan (as described in *Section 4064(a)*of**ERISA)has made contributions at any time during the immediately preceding five planyears.

 

***Permitted Successor Corporation*** meansany corporation (other than the Borrower) that is the survivor of a merger orconsolidation with the Borrower, *so long as*:

 

(a)                                  immediatelyafter giving effect to such merger or consolidation, such surviving corporationshall have then-effective debt ratings (or implied debt ratings) published byMoody’s and S&P applicable to such surviving corporation’s senior,unsecured, non-credit-enhanced, long term debt, equal to or higher than BBB- byS&P and Baa3 by Moody’s;

 

(b)                                 suchsurviving corporation shall be a corporation organized and existing under thelaws of the United States of America, any state thereof or the District ofColumbia, and shall expressly assume all of the Borrower’s obligations for thedue and punctual payment of the Obligations and the performance or observanceof the Loan Documents;

 

(c)                                  theBorrower shall have delivered to the Administrative Agent a certificate signedby a Responsible Officer of the Borrower stating that such survivingcorporation complies with the requirements for a Permitted SuccessorCorporation set forth in this definition and that such merger or consolidationis permitted under ***Section 7.04***;

 

(d)                                 noChange of Control with respect to the Borrower**shall have occurred as aresult of such merger or consolidation; and

 

(e)                                  onand prior to the closing of any such merger or consolidation, such merger andconsolidation shall have been approved and recommended by the Board ofDirectors of the Borrower.

 

***Person*** means any individual, trustee,natural person, corporation, general partnership, limited partnership, limitedliability company, joint stock company, trust, unincorporated organization,association, bank, business association, firm, joint venture, GovernmentalAuthority, or other entity.

 

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

 

***Principal Debt***means the aggregateOutstanding Amount of all Loans and all L/C Obligations.

 

***Pro Rata Share*** means, with respect toeach Lender, unless expressly specified herein, (a) with respect to an amountof credit to be extended, purchased, or otherwise paid by such Lender hereunder(including purchases of participations in L/C Obligations), a reduction of theTotal Commitment, a payment of the Facility Fee or the Letter of Credit Fee tosuch Lender, or a determination of the Voting Percentage of such Lender, ineach case at any time prior to the Termination Date (or, in the case ofpurchases of participations in L/C Obligations or payment of the Letter ofCredit Fees, at any time), a fraction (expressed as a percentage, carried outto the ninth decimal place), the numerator of which is the amount of theCommitment of such Lender at such time and the denominator of which is theamount of the Total Commitment at such time, (b) with respect to an amount tobe paid by such Lender hereunder (other than purchases of participations in L/CObligations), or a payment of the Facility Fee to such 

 

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Lender, in each case onor after the Termination Date, a fraction (expressed as a percentage, carriedout to the ninth decimal place), the numerator of which is the amount of thePrincipal Debt owed to such Lender at such time and the denominator of which isthe amount of the aggregate Principal Debt owed to all Lenders at such time,and (c) with respect to an amount to be paid to or for the account of suchLender (other than the Facility Fee and the Letter of Credit Fee) at any time,a fraction (expressed as a percentage, carried out to the ninth decimal place),the numerator of which is the amount of the Principal Debt owed to such Lenderat such time and the denominator of which is the amount of the Principal Debtowed to all Lenders at such time.

 

***Register*** has the meaning set forth in ***Section 10.07(c).***

 

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

 

***Request for Credit Extension*** means (a)with respect to a Borrowing, conversion, or continuation of Loans, a LoanNotice, or (b) with respect to a L/C Credit Extension, a Letter of CreditApplication.

 

***Required Lenders*** means, as of any dateof determination, at least two Lenders whose Voting Percentages aggregate morethan 50%.

 

***Responsible Officer*** means thechairman, the chief executive officer, the president, the chief operatingofficer, any executive vice president, the chief financial officer, or thetreasurer of the Borrower. Any document delivered hereunder that is signed by aResponsible Officer of the Borrower shall be conclusively presumed to have beenauthorized by all necessary corporate, partnership, and/or other action on thepart of the Borrower and such Responsible Officer shall be conclusivelypresumed to have acted on behalf of the Borrower.

 

***S&P*** means Standard & Poor’sRatings Services, a division of The McGraw-Hill Companies, Inc. and anysuccessor thereto.

 

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

 

***Swap Contract*** means (a) any and allrate swap transactions, basis swaps, credit derivative transactions, forwardrate transactions, commodity swaps, commodity options, forward commoditycontracts, equity or equity index swaps or options, bond or bond price or bondindex swaps or options or forward bond or forward bond price or forward bondindex transactions, interest rate options, forward foreign exchangetransactions, cap transactions, floor transactions, collar transactions,currency swap transactions, cross-currency rate swap transactions, currencyoptions, spot contracts, or any other similar transactions or any combinationof any of the foregoing (including any options to enter into any of theforegoing), whether or not any such transaction is governed by or subject toany master agreement, and (b) any and all transactions of any kind, and therelated confirmations, which are subject to the terms and conditions of, orgoverned by, any form of master agreement published by the International Swapsand Derivatives Association, Inc., any International Foreign Exchange MasterAgreement, or any other

 

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master agreement (anysuch master agreement, together with any related schedules, a “*Master Agreement*”),including any such obligations or liabilities under any Master Agreement.

 

***Swap Termination Value*** means, inrespect of any one or more Swap Contracts, after taking into account the effectof any legally enforceable netting agreement relating to such Swap Contracts,(a) for any date on or after the date such Swap Contracts have been closed outand termination value(s) determined in accordance therewith, such terminationvalue(s), and (b) for any date prior to the date referenced in the preceding ***clause (a)*** theamount(s) determined as the mark-to-market value(s) for such Swap Contracts, asdetermined based upon one or more readily available quotations provided by anyrecognized dealer in such Swap Contracts (which may include any Lender).

 

***Syndication Agent*** means JPMCB, in itscapacity as the Syndication Agent, or any successor syndication agent.

 

***Synthetic Lease Obligation*** means anysynthetic lease, tax retention operating lease, off-balance sheet loan, orsimilar off-balance sheet financing product where such transaction isconsidered borrowed money indebtedness for tax purposes but is classified, foraccounting purposes, as an operating lease, rather than a capital lease.

 

***Termination Date***means the *earlier*of either (a) July 28, 2009, or (b) the effective date of any othertermination or cancellation of the Lenders’ Commitments to lend.

 

***Total Commitment*** means, on any date ofdetermination, the *sum* of all Commitments then in effect forall the Lenders (as the same may have been reduced or canceled as provided inthe Loan Documents).

 

***Total Debt*** means (without duplication)all Indebtedness of the Borrower and its Subsidiaries on a consolidated basis,but excluding any Indebtedness described in ***clause (c)*** of the definition of “*Indebtedness*”in this ***Section 1.01.***

 

***Type*** means a Borrowing’s character asa Base Rate Loan or a Eurodollar Rate Loan.

 

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

 

***Unreimbursed Amount*** has the meaningset forth in ***Section 2.03(c)(i).***

 

***Utilization Fee*** has the meaning setforth in ***Section 2.09(b).***

 

***Voting Percentage*** means, as to anyLender, (a) at any time prior to the Termination Date, such Lender’s Pro RataShare and (b) at any time from and after the Termination Date, the percentage(carried out to the ninth decimal place) which (i) the Principal Debt owed tosuch Lender bears to (ii) the Principal Debt owed to all Lenders; *providedthat* any Defaulting Lender’s Voting Percentage shall be deemed to be–0-, and the respective Pro Rata Shares and Voting Percentages of the otherLenders shall be recomputed for purposes of this definition and the definitionof “*RequiredLenders*” without regard to such Defaulting Lender’s Commitment orthe Principal Debt owed to such Defaulting Lender.

 

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**1.02****                        Other Interpretive Provisions.**

 

(a)                                  Themeanings of defined terms are equally applicable to the singular and pluralforms of the defined terms.

 

(b)                                 (i)                                     Thewords “***herein***”and “***hereunder***” and wordsof similar import when used in any Loan Document shall refer to such LoanDocument as a whole and not to any particular provision thereof.

 

(ii)                                  Unlessotherwise specified herein, ***Article***, ***Section***, ***Exhibit,*** and ***Schedule ***references are to this Agreement.

 

(iii)                               Theterm “***including***”is by way of example and not limitation.

 

(iv)                              Theterm “***documents***”includes any and all instruments, documents, agreements, certificates, notices,reports, financial statements, and other writings, however evidenced, whetherin physical or electronic form.

 

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

 

(d)                                 Section headingsherein and in the other Loan Documents are included for convenience ofreference only and shall not affect the interpretation of this Agreement or anyother Loan Document.

 

**1.03****                        Accounting Terms. **All accounting terms not specifically or completely defined hereinshall be construed in conformity with, and all financial data (includingfinancial ratios and other financial calculations) required to be submittedpursuant to this Agreement shall be prepared in conformity with, GAAP, as ineffect from time to time, applied in a manner consistent with that used inpreparing the Audited Financial Statements, except as otherwise specificallyprescribed herein.

 

**1.04****                        Rounding. **Anyfinancial ratios required to be maintained by the Borrower pursuant to thisAgreement shall be calculated by dividing the appropriate component by theother component, carrying the result to one place more than the number ofplaces by which such ratio is expressed herein and rounding the result up ordown to the nearest number (with a rounding-up if there is no nearest number).

 

**1.05****                        References to Agreements and Laws. **Unless otherwise expressly providedherein, (a) references to Organization Documents, agreements (including theLoan Documents), and other contractual instruments shall be deemed to includeall subsequent amendments, restatements, extensions, supplements, and othermodifications thereto, but only to the extent that such amendments,restatements, extensions, supplements, and other modifications are notprohibited by any Loan Document, and (b) references to any Law shall includeall statutory and regulatory provisions consolidating, amending, replacing,supplementing, or interpreting such Law.

 

**1.06****                        Letter of Credit Amounts. **Unless otherwise specified, allreferences herein to the amount of a Letter of Credit at any time shall bedeemed to mean the maximum face amount of such Letter of Credit after givingeffect to all increases thereof contemplated by such Letter of Credit or theLetter of Credit Application therefor, whether or not such increases have takeneffect at such time.

 

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**ARTICLE II****.****THECOMMITMENTS AND CREDIT EXTENSIONS**

 

**2.01****                        Loans. **Subject tothe terms and conditions set forth herein, each Lender severally agrees to makeloans (each such loan, a “***Loan***”) to the Borrower from time to time, on anyBusiness Day from the Closing Date to the Termination Date, in an aggregateamount not to exceed at any time outstanding the amount of such Lender’sCommitment; *providedthat*, after giving effect to any Borrowing, (a) the aggregatePrincipal Debt shall not exceed the Total Commitment, and (b) the OutstandingAmount of the Loans owed to any Lender, *plus,* without duplication, such Lender’sPro Rata Share of the Outstanding Amount of all L/C Obligations shall notexceed such Lender’s Commitment.  Withinthe limits of each Lender’s Commitment, and subject to the other terms andconditions hereof, the Borrower may borrow under this ***Section 2.01***, prepay under ***Section 2.04***,and reborrow under this ***Section 2.01***. Loans may be Base Rate Loans or Eurodollar Rate Loans, as furtherprovided herein.

 

**2.02****                        Borrowings, Conversions, andContinuations of Loans.**

 

(a)                                  EachBorrowing, each conversion of Borrowings from one Type to the other, and eachcontinuation of Eurodollar Rate Loans shall be made upon the Borrower’sirrevocable notice to the Administrative Agent, which may be given bytelephone.  Each such notice must bereceived by the Administrative Agent not later than 10:00 a.m., Dallas, Texastime, (i) three Business Days prior to the requested date of any Borrowing of,conversion to, or continuation of Eurodollar Rate Loans or of any conversion ofEurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of anyBorrowing of Base Rate Loans; *provided that,* if the Borrower wishes torequest Eurodollar Rate Loans having an Interest Period other than one, two,three, or six months in duration as provided in the definition of “***Interest Period****,*”the applicable notice must be received by the Administrative Agent not laterthan 10:00 a.m., Dallas, Texas time, four Business Days prior to the requesteddate of Borrowing, conversion, or continuation.  Each such telephonic notice must be confirmed promptly bydelivery to the Administrative Agent of a written Loan Notice, appropriatelycompleted and signed by a Responsible Officer of the Borrower.  Each Borrowing of, conversion to, orcontinuation of Eurodollar Rate Loans shall be in a principal amount of$5,000,000 or a whole multiple of $1,000,000 in excess thereof.  Each Borrowing of, or conversion to, BaseRate Loans shall be in a principal amount of $1,000,000 or a whole multiple of$500,000 in excess thereof.  Each LoanNotice (whether telephonic or written) shall specify (i) whether the Borroweris requesting a Borrowing, a conversion of Borrowings from one Type to theother, or a continuation of Borrowings as the same Type, (ii) the requesteddate of the Borrowing, conversion, or continuation, as the case may be (whichshall be a Business Day), (iii) the principal amount of Loans to be borrowed,converted, or continued, (iv) the Type of Borrowings to be borrowed or to whichexisting Borrowings are to be converted, and (v) if applicable, the duration ofthe Interest Period with respect thereto. If the Borrower fails to specify a Type of Borrowing in a Loan Notice orif the Borrower fails to give a timely notice requesting a conversion orcontinuation, then the applicable Borrowing shall be made or continued as, orconverted to, Base Rate Loans.  Any suchautomatic conversion to Base Rate Loans shall be effective as of the last dayof the Interest Period then in effect with respect to the applicable EurodollarRate Loans.  If the Borrower requests aBorrowing of, conversion to, or continuation of Eurodollar Rate Loans in anysuch Loan Notice, but fails to specify an Interest Period, it will be deemed tohave specified an Interest Period of one month.

 

(b)                                 Followingreceipt of a Loan Notice, the Administrative Agent shall promptly notify eachLender of the amount of its Pro Rata Share of the applicable Borrowings, and ifno timely notice of a conversion or continuation is provided by the Borrower,the Administrative Agent shall notify each Lender of the details of anyautomatic conversion to Base Rate Loans described in the preceding ***subsection (a)***.  Each Lender shall make its Pro Rata Share ofeach Borrowing available to the

 

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Administrative Agent inimmediately available funds at the Administrative Agent’s Office not later than12:00 noon, Dallas, Texas time, on the Business Day specified in the applicableLoan Notice.  Upon satisfaction of theapplicable conditions set forth in ***Section 4.02***, the Administrative Agent shall makeall funds so received available to the Borrower no later than 2:00 p.m. Dallas,Texas time in like funds as received by the Administrative Agent either by (i)crediting the account of the Borrower on the books of Bank of America with theamount of such funds or (ii) wire transfer of such funds, in each case inaccordance with instructions provided to (and reasonably acceptable to) theAdministrative Agent by the Borrower; *provided**that*, if, on the date theLoan Notice with respect to such Borrowing is given by the Borrower, there areL/C Borrowings outstanding, then the proceeds of such Borrowing shall beapplied, *first*,to the payment in full of any such L/C Borrowings, and *second,*to the Borrower asprovided above.

 

(c)                                  Exceptas otherwise provided herein, a Eurodollar Rate Loan may be continued orconverted only on the last day of the Interest Period for such Eurodollar RateLoan.  During the existence of a Defaultor Event of Default, no Borrowings may be requested as, converted to, orcontinued as Eurodollar Rate Loans without the consent of the Required Lenders,and the Required Lenders may demand that any or all of the then outstandingEurodollar Rate Loans be converted immediately to Base Rate Loans.

 

(d)                                 TheAdministrative Agent shall promptly notify the Borrower and the Lenders of theinterest rate applicable to any Interest Period for Eurodollar Rate Loans upondetermination of such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shallbe conclusive in the absence of manifest error.  At any time that Base Rate Loans are outstanding, theAdministrative Agent shall notify the Borrower and the Lenders of any change inBank of America’s prime rate used in determining the Base Rate promptlyfollowing the public announcement of such change.

 

(e)                                  Aftergiving effect to all Borrowings, all conversions of Borrowings from one Type tothe other, and all continuations of Borrowings as the same Type, there shallnot be more than 8 Interest Periods in effect on any day with respect to Borrowings.

 

**2.03****                        Letters of Credit.**

 

(a)                                  TheLetter of Credit Commitment.

 

(i)                                     Subjectto the terms and conditions set forth herein, (A) the L/C Issuer agrees, inreliance upon the agreements of the other Lenders set forth in this ***Section 2.03***,from time to time on any Business Day during the period from the Closing Dateuntil the Letter of Credit Expiration Date, to issue Letters of Credit for theaccount of the Borrower, and to amend or renew Letters of Credit previouslyissued by it, in accordance with ***subsection (b)***below, and (B) the Lenders severallyagree to participate in Letters of Credit issued for the account of theBorrower; *providedthat,* the L/C Issuer shall not be obligated to make any L/C CreditExtension with respect to any Letter of Credit, and no Lender shall beobligated to participate in any Letter of Credit if, after giving effect tosuch L/C Credit Extension, (x) the Principal Debt would exceed the TotalCommitment, (y) the aggregate Outstanding Amount of the Loans owed to anyLender, *plus*such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligationswould exceed such Lender’s Commitment, or (z) the Outstanding Amount of the L/CObligations would exceed the Letter of Credit Sublimit.  Within the foregoing limits, and subject tothe terms and conditions hereof, the Borrower’s ability to obtain Letters ofCredit shall be fully revolving, and accordingly the Borrower may, during theforegoing period, obtain Letters of Credit to replace Letters of Credit thathave expired or that have been drawn upon and reimbursed.  All Existing Letters of Credit shall bedeemed to have been issued pursuant hereto, and from and after the

 

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Closing Date the rightsand obligations of any Person party hereto (in such Person’s capacityhereunder) relating to the Existing Letters of Credit shall be subject to andgoverned by the terms and conditions hereof.

 

(ii)                                  TheL/C Issuer shall be under no obligation to issue any Letter of Credit if:

 

(A)                              anyorder, judgment, or decree of any Governmental Authority or arbitrator shall byits terms purport to enjoin or restrain the L/C Issuer from issuing such Letterof Credit, or any Law applicable to the L/C Issuer or any request or directive(whether or not having the force of law) from any Governmental Authority withjurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuerrefrain from, the issuance of letters of credit generally or such Letter ofCredit in particular or shall impose upon the L/C Issuer with respect to suchLetter of Credit any restriction, reserve, or capital requirement (for whichthe L/C Issuer is not otherwise compensated hereunder) not in effect on thedate hereof, or shall impose upon the L/C Issuer any unreimbursed loss, cost,or expense which was not applicable on the date hereof and which the L/C Issuerin good faith deems material to it;

 

(B)                                subjectto ***Section 2.03(b)(iii)***,the expiry date of such requested Letter of Credit would occur more than twelvemonths after the date of issuance thereof or last renewal thereof, unless theRequired Lenders have approved such expiry date;

 

(C)                                theexpiry date of such requested Letter of Credit would occur after the Letter ofCredit Expiration Date, unless all the Lenders have approved such expiry date;

 

(D)                               theissuance of such Letter of Credit would violate one or more policies of the L/CIssuer; or

 

(E)                                 suchLetter of Credit is in an initial amount less than $100,000 (*providedthat* not more than five Letters of Credit may each have an initialface amount of $5,000 or more but less than $100,000), or is to be denominatedin a currency other than Dollars.

 

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

 

(b)                                 Proceduresfor Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit.

 

(i)                                     EachLetter of Credit shall be issued or amended, as the case may be, upon therequest of the Borrower delivered to the L/C Issuer (with a copy to theAdministrative Agent) in the form of a Letter of Credit Application,appropriately completed and signed by a Responsible Officer of theBorrower.  Such Letter of CreditApplication must be received by the L/C Issuer and the Administrative Agent notlater than 10:00 a.m. Dallas, Texas time at least two Business Days (or suchlater date and time as the L/C Issuer may agree in a particular instance in itssole discretion) prior to the proposed issuance date or date of amendment, asthe case may be.  In the case of arequest for an initial issuance of a Letter of Credit, such Letter of CreditApplication shall specify in form and detail satisfactory to the L/C Issuer:(A) the proposed issuance date of the requested Letter of Credit (which shallbe a Business Day); (B) the amount thereof; (C) the

 

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expiry date thereof; (D)the name of the Subsidiary of the Borrower to be shown as the account partythereon (if other than the Borrower); (E) the name and address of thebeneficiary thereof; (F) the documents to be presented by such beneficiary incase of any drawing thereunder; (G) the full text of any certificate to bepresented by such beneficiary in case of any drawing thereunder; and (H) suchother matters as the L/C Issuer may reasonably require.  In the case of a request for an amendment ofany outstanding Letter of Credit, such Letter of Credit Application shallspecify in form and detail satisfactory to the L/C Issuer (A) the Letter ofCredit to be amended; (B) the proposed date of amendment thereof (which shall bea Business Day); (C) the nature of the proposed amendment; and (D) such othermatters as the L/C Issuer may require. Additionally, the Borrower shall furnish to the L/C Issuer and theAdministrative Agent such other documents and information pertaining to suchrequested Letter of Credit issuance or amendment as the L/C Issuer or theAdministrative Agent may reasonably require.

 

(ii)                                  Promptlyafter receipt of any Letter of Credit Application, the L/C Issuer will confirmwith the Administrative Agent (by telephone or in writing) that theAdministrative Agent has received a copy of such Letter of Credit Applicationfrom the Borrower and, if not, the L/C Issuer will provide the AdministrativeAgent with a copy thereof.  Upon receiptby the L/C Issuer of confirmation from the Administrative Agent that therequested issuance or amendment is permitted in accordance with the termshereof, then, subject to the terms and conditions hereof, the L/C Issuer shall,on the requested date, issue a Letter of Credit for the account of the Borroweror enter into the applicable amendment, as the case may be, in each case inaccordance with the L/C Issuer’s usual and customary business practices (to theextent such practices are not inconsistent with the terms of this Agreement).  Immediately upon the issuance of each Letterof Credit, each Lender shall be deemed to, and hereby irrevocably andunconditionally agrees to, purchase from the L/C Issuer a risk participation insuch Letter of Credit in an amount equal to the product of such Lender’s ProRata Share *times*the amount of such Letter of Credit.

 

(iii)                               Ifthe Borrower so requests in any applicable Letter of Credit Application, theL/C Issuer may, in its sole and absolute discretion, agree to issue a Letter ofCredit that has automatic renewal provisions (each, an “***Auto-Renewal Letter of Credit***”); *providedthat*, any such Auto-Renewal Letter of Credit must permit the L/CIssuer to prevent any such renewal at least once in each twelve-month period(commencing with the date of issuance of such Letter of Credit) by giving priornotice to the beneficiary thereof not later than a day in each suchtwelve-month period to be agreed upon at the time such Letter of Credit isissued (the “***Nonrenewal Notice Date***”).  The Borrower shall not be required to make aspecific request to the L/C Issuer for any such renewal.  Once an Auto-Renewal Letter of Credit hasbeen issued, the Lenders shall be deemed to have authorized (but may notrequire) the L/C Issuer to permit the renewal of such Letter of Credit at anytime to an expiry date not later than the Letter of Credit Expiration Date; *providedthat*, the L/C Issuer shall not permit any such renewal if (A) theL/C Issuer has determined that it would have no obligation at such time toissue such Letter of Credit in its renewed form under the terms hereof (byreason of the provisions of ***Section 2.03(a)(ii)*** or otherwise), or (B) it hasreceived notice (which may be by telephone or in writing) on or before the daythat is two Business Days before the Nonrenewal Notice Date (1) from theAdministrative Agent that the Required Lenders have elected not to permit suchrenewal or (2) from the Administrative Agent, any Lender or the Borrower thatone or more of the applicable conditions specified in ***Section 4.02*** is not then satisfied, andin each such case directing the L/C Issuer not to permit such renewal.

 

(iv)                              Promptlyafter its delivery of any Letter of Credit or any amendment to a Letter ofCredit to an advising bank with respect thereto or to the beneficiary thereof,the L/C Issuer

 

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will also deliver to theBorrower and the Administrative Agent a true and complete copy of such Letterof Credit or amendment.

 

(c)                                  Drawingsand Reimbursements; Funding of Participations.

 

(i)                                     Uponreceipt from the beneficiary of any Letter of Credit of any notice of a drawingunder such Letter of Credit, the L/C Issuer shall promptly (a) examine alldocuments purporting to represent a demand for payment under such Letter of Creditand (b) notify the Borrower and the Administrative Agent of such demand in theevent the L/C Issuer will make payment on such Letter of Credit.  The Borrower shall reimburse the L/C Issuerthrough the Administrative Agent in an amount equal to the amount of anypayment by the L/C Issuer under a Letter of Credit no later than (a) 2:00 p.m.,Dallas, Texas time on the date of the payment by the L/C Issuer under anyLetter of Credit (each such date, an “***Honor Date***”), if the L/C Issuer provides notice to Borrowerof such payment at or before 11:00 a.m., Dallas, Texas time on such day or (b)10:00 a.m., Dallas, Texas time on the next succeeding Business Day after thedate on which the L/C Issuer provides notice of such payment to Borrower ifsuch notice is not provided at or before 11:00 a.m., Dallas, Texas time on theHonor Date (together with interest thereon at the rate then applicable to BaseRate Loans, which interest shall be solely for the account of the L/CIssuer).  If the Borrower fails to soreimburse the L/C Issuer by such time, the Administrative Agent shall promptlynotify each Lender of the Honor Date, the amount of the unreimbursed drawing(the “***Unreimbursed Amount***”),and the amount of such Lender’s Pro Rata Share thereof.  In such event, if the Termination Date shallnot have occurred, the Borrower shall be deemed to have requested a Borrowingof Base Rate Loans to be disbursed on the Honor Date in an amount equal to theUnreimbursed Amount, without regard to the minimum and multiples specified in ***Section 2.02*** forthe principal amount of Base Rate Loans, but subject to the amount of theunutilized portion of the Total Commitment and the conditions set forth in ***Section 4.02***(other than the delivery of a Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuantto this ***Section 2.03(c)(i)***may be given by telephone if immediately confirmed in writing; *providedthat*, the lack of such an immediate confirmation shall not affectthe conclusiveness or binding effect of such notice.

 

(ii)                                  EachLender (including the Lender acting as L/C Issuer) shall upon any noticepursuant to ***Section 2.03(c)(i)***make funds available to the Administrative Agent for the account of the L/CIssuer at the Administrative Agent’s Office in an amount equal to its Pro RataShare of the Unreimbursed Amount not later than 12:00 noon, Dallas, Texas timeon the Business Day specified in such notice by the Administrative Agent,whereupon, subject to the provisions of ***Section 2.03(c)(iii)***, each Lender that so makesfunds available shall be deemed to have made a Base Rate Loan to the Borrowerin such amount.  The AdministrativeAgent shall remit the funds so received to the L/C Issuer.

 

(iii)                               Withrespect to any Unreimbursed Amount that is not fully refinanced by a Borrowingof Base Rate Loans because the Termination Date has occurred or the conditionsset forth in ***Section 2.03(c)(i)***cannot be satisfied, the Borrower shall be deemed to haveincurred from the L/C Issuer an L/C Borrowing in the amount of the UnreimbursedAmount that is not so refinanced, which L/C Borrowing shall be immediately dueand payable without further demand (together with interest) and shall bearinterest at the Default Rate.  In suchevent, each Lender’s payment to the Administrative Agent for the account of theL/C Issuer pursuant to ***Section 2.03(c)(ii)*** shall be deemed payment inrespect of its participation in such L/C Borrowing and shall constitute an L/CAdvance from such Lender in satisfaction of its participation obligation underthis ***Section 2.03***.

 

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(iv)                              Untileach Lender funds its Loan or L/C Advance pursuant to this ***Section 2.03(c)***to reimburse the L/CIssuer for any amount drawn under any Letter of Credit, interest in respect ofsuch Lender’s Pro Rata Share of such amount shall be solely for the account ofthe L/C Issuer.

 

(v)                                 EachLender’s obligation to make Loans or L/C Advances to reimburse the L/C Issuerfor amounts drawn under Letters of Credit, as contemplated by this ***Section 2.03(c),***shall be absolute and unconditional and shall not be affected by anycircumstance, including: (A) any set-off, counterclaim, recoupment, defense, orother right which such Lender may have against the L/C Issuer, the Borrower orany other Person for any reason whatsoever; (B) the occurrence or continuanceof a Default; or (C) any other occurrence, event, or condition, whether or notsimilar to any of the foregoing; *provided that,* each Lender’s obligation tomake Loans pursuant to this ***Section 2.03(c)*** is subject to the conditions setforth in ***Section 4.02***(other than delivery by the Borrower of a Loan Notice).  No such making of an L/C Advance shallrelieve or otherwise impair the obligation of the Borrower to reimburse the L/CIssuer for the amount of any payment made by the L/C Issuer under any Letter ofCredit, together with interest as provided herein.

 

(vi)                              Ifany Lender fails to make available to the Administrative Agent for the accountof the L/C Issuer any amount required to be paid by such Lender pursuant to theforegoing provisions of this ***Section 2.03(c)*** by the time specified in ***Section 2.03(c)(ii)***,the L/C Issuer shall be entitled to recover from such Lender (acting throughthe Administrative Agent), on demand, such amount with interest thereon for theperiod from the date such payment is required to the date on which such paymentis immediately available to the L/C Issuer at a rate per annum equal to theFederal Funds Rate.  A certificate ofthe L/C Issuer submitted to any Lender (through the Administrative Agent) withrespect to any amounts owing under this clause (vi) shall be conclusive absentmanifest error.

 

(d)                                 Repaymentof Participations.

 

(i)                                     Atany time after the L/C Issuer has made a payment under any Letter of Credit andhas received from any Lender such Lender’s L/C Advance in respect of suchpayment in accordance with ***Section 2.03(c)***, if the Administrative Agentreceives for the account of the L/C Issuer any payment in respect of therelated Unreimbursed Amount or interest thereon (whether directly from theBorrower or otherwise, including proceeds of Cash Collateral applied thereto bythe Administrative Agent), the Administrative Agent will distribute to suchLender its Pro Rata Share thereof (appropriately adjusted, in the case ofinterest payments, to reflect the period of time during which such Lender’s L/CAdvance was outstanding) in the same funds as those received by theAdministrative Agent.

 

(ii)                                  Ifany payment received by the Administrative Agent for the account of the L/CIssuer pursuant to ***Section 2.03(c)(i)***is required to be returned under any of the circumstances described in ***Section 10.06***(including pursuant to any settlement entered into by the L/C Issuer in itsdiscretion), each Lender shall pay to the Administrative Agent for the accountof the L/C Issuer its Pro Rata Share thereof on demand of the AdministrativeAgent, plus interest thereon from the date of such demand to the date suchamount is returned by such Lender, at a rate per annum equal to the Federal FundsRate from time to time in effect.  Theobligations of the Lenders under this clause shall survive the payment in fullof the Obligations and the termination of this Agreement.

 

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(e)                                  ObligationsAbsolute.** **The obligation of theBorrower to reimburse the L/C Issuer for each drawing under each Letter ofCredit and to repay each L/C Borrowing shall be absolute, unconditional, andirrevocable, and shall be paid strictly in accordance with the terms of thisAgreement under all circumstances, including the following:

 

(i)                                     anylack of validity or enforceability of such Letter of Credit, this Agreement, orany other agreement or instrument relating thereto;

 

(ii)                                  theexistence of any claim, counterclaim, set-off, defense, or other right that theBorrower may have at any time against any beneficiary or any transferee of suchLetter of Credit (or any Person for whom any such beneficiary or any suchtransferee may be acting), the L/C Issuer or any other Person, whether inconnection with this Agreement, the transactions contemplated hereby or by suchLetter of Credit or any agreement or instrument relating thereto, or anyunrelated transaction;

 

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

 

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

 

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

 

The Borrower shallpromptly examine a copy of each Letter of Credit and each amendment theretothat is delivered to it and, in the event of any claim of noncompliance withthe Borrower’s instructions or other irregularity, the Borrower will promptlynotify the L/C Issuer.  The Borrowershall be conclusively deemed to have waived any such claim against the L/CIssuer and its correspondents unless such notice is given as aforesaid.

 

(f)                                    Roleof L/C Issuer.** **EachLender and the Borrower agree that, in paying any drawing under a Letter ofCredit, the L/C Issuer shall not have any responsibility to obtain any document(other than any sight draft, certificates, and documents expressly required bythe Letter of Credit) or to ascertain or inquire as to the validity or accuracyof any such document or the authority of the Person executing or delivering anysuch document.  None of the L/C Issuer,any Agent-Related Person, nor any of the respective correspondents,participants, or assignees of the L/C Issuer shall be liable to any Lender for(i) any action taken or omitted in connection herewith at the request or withthe approval of the Lenders or the Required Lenders, as applicable; (ii) any actiontaken or omitted in the absence of gross negligence or willful misconduct; or(iii) the due execution, effectiveness, validity, or enforceability of anydocument or instrument related to any Letter of Credit or Letter of CreditApplication.  The Borrower herebyassumes all risks of the acts or omissions of any beneficiary or transfereewith respect to its use of any Letter of Credit; *provided that*, thisassumption is not intended to, and shall not, preclude the Borrower’s

 

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pursuing such rights andremedies as it may have against the beneficiary or transferee at law or underany other agreement.  None of the L/CIssuer, any Agent-Related Person, nor any of the respective correspondents,participants, or assignees of the L/C Issuer, shall be liable or responsiblefor any of the matters described in ***clauses (i)*** through ***(v)*** of ***Section 2.03(e)*** or in this ***Section 2.03(f);****provided that*, anything insuch clauses or this ***Section 2.03(f)*** to the contrary notwithstanding,the Borrower will have a claim against the L/C Issuer, and the L/C Issuer willbe liable to the Borrower, to the extent, but only to the extent, of anydirect, as opposed to consequential or exemplary, damages suffered by theBorrower which the Borrower proves were caused by the L/C Issuer’s willfulmisconduct or gross negligence or the L/C Issuer’s willful failure to pay underany Letter of Credit after the presentation to it by the beneficiary of a sightdraft and certificate(s) strictly complying with the terms and conditions of aLetter of Credit.**** In furtherance andnot in limitation of the foregoing, the L/C Issuer may accept documents thatappear on their face to be in order, without responsibility for furtherinvestigation, regardless of any notice or information to the contrary, and theL/C Issuer shall not be responsible for the validity or sufficiency of anyinstrument transferring or assigning or purporting to transfer or assign aLetter of Credit or the rights or benefits thereunder or proceeds thereof, inwhole or in part, which may prove to be invalid or ineffective for any reason.

 

(g)                                 CashCollateral.  (i) Upon the request ofthe Administrative Agent, if an Event of Default exists, or (ii) if, as of theTermination Date, any Letter of Credit may for any reason remain outstandingand partially or wholly undrawn, the Borrower shall immediately CashCollateralize that portion of the L/C Obligations comprised of the aggregateundrawn amount of outstanding Letters of Credit. For purposes hereof, “***Cash Collateralize***”means to pledge and deposit with or deliver to the Administrative Agent, forthe benefit of the L/C Issuer and the Lenders, as collateral for that portionof the L/C Obligations comprised of the aggregate undrawn amount of outstandingLetters of Credit, cash or deposit account balances pursuant to documentationin form and substance satisfactory to the Administrative Agent and the L/CIssuer (which documents are hereby consented to by the Lenders).  Derivatives of such term have correspondingmeanings.  The Borrower hereby grants tothe Administrative Agent, for the benefit of the L/C Issuer and the Lenders, asecurity interest in all such cash, deposit accounts and all balances thereinand all proceeds of the foregoing.  TheAdministrative Agent is hereby irrevocably authorized and directed by theBorrower, without further notice to or consent from the Borrower, to setoff andapply cash collateral to any Unreimbursed Amount, including L/C Borrowings.  If the Borrower is required to provide anamount of cash collateral hereunder as a result of the occurrence of an Eventof Default, such amount (to the extent not applied as permitted under thisAgreement) shall be returned to the Borrower within three Business Days afterall Events of Default have been cured or waived.

 

(h)                                 Applicabilityof ISP98 and UCP.****Unless otherwise expressly agreed by theL/C Issuer and the Borrower when a Letter of Credit is issued (including anysuch agreement applicable to an Existing Letter of Credit), (i) the rules ofthe “International Standby Practices 1998” published by the Institute ofInternational Banking Law & Practice (or such later version thereof as maybe in effect at the time of issuance) (the “***ISP***”) shall apply to each standby Letter ofCredit, and (ii) the rules of the Uniform Customs and Practice for DocumentaryCredits, as most recently published by the International Chamber of Commerce(the “***ICC***”)at the time of issuance (including the ICC decision published by the Commissionon Banking Technique and Practice on April 6, 1998 regarding the Europeansingle currency (euro)) shall apply to each commercial Letter of Credit.

 

(i)                                     Letterof Credit Fees.  The Borrower shallpay to the Administrative Agent for the account of each Lender in accordance withits Pro Rata Share****a Letter of Credit fee (the “***Letter of Credit Fee***”)for each Letter of Credit equal to the Applicable Rate for Eurodollar RateLoans (applied on a per diem basis) *times* the daily maximum amount availableto be drawn under such Letter of Credit

 

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(including all increasesthereof contemplated by such Letter of Credit or the Letter of CreditApplication therefor, whether or not such increases have taken effect at suchtime).  Such Letter of Credit Fee shallbe computed on a quarterly basis in arrears. Such Letter of Credit Fee shall be due and payable on the last BusinessDay of each March, June, September, and December, commencing with the firstsuch date to occur after the issuance of such Letter of Credit, on the Letterof Credit Expiration Date, and thereafter on demand.  If there is any change in the Applicable Rate for Eurodollar RateLoans during any quarter, the daily maximum amount of each Letter of Creditshall be computed and multiplied by the Applicable Rate for Eurodollar RateLoans (applied on a per diem basis) separately for each period during suchquarter that such Applicable Rate for Eurodollar Rate Loans was in effect.  While any Event of Default exists or afteracceleration, the Letter of Credit Fee shall be calculated and payable at theDefault Rate to the fullest extent permitted by applicable law.

 

(j)                                     FrontingFee and Documentary and Processing Charges Payable to L/C Issuer.** **The Borrower shall pay directlyto the L/C Issuer for its own account a fronting fee with respect to eachLetter of Credit in the amount and at the times specified in the confidentialletter agreement dated May 21, 2004 (as thereafter amended or modified fromtime to time, the **“*Bank of America Fee Letter***”),by and among the Borrower, BAS, and Bank of America.  In addition, the Borrower shall pay directly to the L/C Issuerfor its own account the customary issuance, presentation, amendment, and otherprocessing fees, and other standard costs and charges, of the L/C Issuerrelating to letters of credit as from time to time specified in writing to theBorrower.  Such customary fees andstandard costs and charges are due and payable on demand and are nonrefundable.

 

(k)                                  Conflictwith Letter of Credit Application. In the event of any conflict between the terms hereof and the terms ofany Letter of Credit Application, the terms hereof shall control.

 

**2.04****                        Prepayments.**

 

(a)                                  TheBorrower may, upon notice to the Administrative Agent, at any time or from timeto time voluntarily prepay the Loans, in whole or in part, without premium orpenalty; *provided**that*(i) such notice must be received by the Administrative Agent not later than10:00 a.m., Dallas, Texas time, (A) three Business Days prior to any date of prepaymentof Eurodollar Rate Loans, and (B) on the date of prepayment of Base Rate Loans,(ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount of$5,000,000 or a whole multiple of $1,000,000 in excess thereof, and (iii) anyprepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or awhole multiple of $500,000 in excess thereof, or, in each case, if less, theentire principal amount thereof then outstanding.  Each such notice shall specify the date and amount of suchprepayment and the Type(s) of Loans to be prepaid.  The Administrative Agent will promptly notify each Lender of itsreceipt of each such notice and of the amount of such Lender’s Pro Rata Shareof such prepayment.  If such notice isgiven by the Borrower, the Borrower shall make such prepayment and the paymentamount specified in such notice shall be due and payable on the date specifiedtherein.  Any prepayment of a EurodollarRate Loan shall be accompanied by all accrued interest thereon, together withany additional amounts then due and payable pursuant to ***Section 3.05***.  Each such prepayment shall be applied to the Loans of the Lendersin accordance with their respective Pro Rata Shares.

 

(b)                                 Iffor any reason the Principal Debt at any time exceeds the Total Commitment thenin effect, the Borrower shall immediately prepay Loans or, if no Loans areoutstanding at such time, Cash Collateralize the L/C Obligations in anaggregate amount equal to such excess.

 

**2.05****                        Reduction or Termination ofCommitments.  **The Borrower may,upon notice to the Administrative Agent, terminate the Total Commitment, orpermanently reduce the Total Commitment to

 

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an amount not less thanthe then outstanding Principal Debt; *provided that* (i) any such notice shall bereceived by the Administrative Agent not later than 10:00 a.m., Dallas, Texastime, five Business Days prior to the date of termination or reduction, (ii)any such partial reduction shall be in an aggregate amount of $10,000,000 orany whole multiple of $1,000,000 in excess thereof, and (iii) if, after givingeffect to any reduction of the Total Commitment, the Letter of Credit Sublimitexceeds the amount of the Total Commitment, the Letter of Credit Sublimit shallbe automatically reduced by the amount of such excess.  The Administrative Agent shall promptlynotify the Lenders of any such notice of reduction or termination of the TotalCommitment.  Once reduced in accordancewith this ***Section 2.05***,the Total Commitment may not be increased. Any reduction of the Total Commitment shall be applied to the Commitmentof each Lender according to its Pro Rata Share.

 

**2.06****                       ****Change of Control.**** **The Borrower shall give the Administrative Agent and eachLender written notice of a Change of Control with respect to the Borrower nolater than two Business Days after a Responsible Officer of the Borrower hasknowledge of such Change of Control.  Nolater than 30 days after the giving by the Borrower of such notice, each Lendershall have the right, in its sole discretion, to notify the Borrower in writing(with a copy to the Administrative Agent) of its election to terminate all ofits Commitment hereunder, to require a mandatory prepayment of all Obligationsowed to such Lender, and to cease to be a Lender party hereto, which commitmenttermination and mandatory prepayment shall occur on the 30th day after suchnotice is received by the Borrower.  Ifa Change of Control occurs, the Borrower shall have no right to make any newBorrowings unless and until the Commitments of all Lenders that elect toterminate their Commitments pursuant to this ***Section 2.06*** have been terminated, andall Obligations owing to such Lenders have been paid in full.  The Borrower shall have the right to replaceeach terminating Lender pursuant to ***Section 10.16***, which replacement shall occur on orbefore the date such terminating Lender’s Commitment would have been terminatedpursuant to this ***Section 2.06***.

 

**2.07****                        Repayment of Outstanding Amount ofall Loans. **The Borrower shallrepay to the Lenders on the Termination Date the Outstanding Amount of allLoans outstanding on such date.

 

**2.08****                        Interest.**

 

(a)                                  Subjectto the provisions of ***subsection (b)*** below, (i) each Eurodollar Rate Loanshall bear interest on the outstanding principal amount thereof for eachInterest Period at a rate per annum equal to the Eurodollar Rate for suchInterest Period *plus* the Applicable Rate, and (ii) each Base Rate Loan shallbear interest on the outstanding principal amount thereof from the applicableborrowing date at a rate per annum equal to the Base Rate *plus* the Applicable Rate.

 

(b)                                 Whileany Event of Default exists or after acceleration, the Borrower shall payinterest on the principal amount of all outstanding Obligations (including pastdue interest) at a fluctuating interest rate per annum at all times equal tothe Default Rate to the fullest extent permitted by applicable Laws.  Accrued and unpaid interest on past dueamounts (including interest on past due interest) shall be due and payable upondemand.

 

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

 

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**2.09****                        Fees.**

 

(a)                                  FacilityFee.  The Borrower shall pay to theAdministrative Agent for the account of each Lender, in accordance with its ProRata Share, a facility fee (the “***Facility Fee***”) equal to the Applicable Rate (applied ona per diem basis) *times* the actual daily amount of the Total Commitment,regardless of usage (or if the Total Commitment has been terminated, on thePrincipal Debt).  The Facility Fee shallaccrue at all times from the Closing Date until the date the Principal Debt hasbeen paid in full and the Total Commitment has been terminated and shall be dueand payable quarterly in arrears on the last Business Day of each March, June,September, and December, commencing with the first such date to occur after theClosing Date, and ending on the date both the Principal Debt has been paid infull and the Total Commitment has been terminated.  The Facility Fee shall be calculated quarterly in arrears, inaccordance with ***Section 2.10***,and if there is any change in the Applicable Rate during any quarter, theactual daily amount shall be computed and multiplied by the Applicable Rate (ona per diem basis) separately for each period during such quarter that suchApplicable Rate was in effect.  TheFacility Fee shall accrue at all times, including at any time during which oneor more of the conditions in ***Article IV*** is not met.

 

(b)                                 UtilizationFee.  The Borrower shall pay to theAdministrative Agent for the account of each Lender, in accordance with its ProRata Share, a utilization fee (the “***Utilization Fee***”) equal to the Applicable Rate (appliedon a per diem basis) *times* the actual daily aggregate PrincipalDebt; *providedthat*(i)**prior to the Termination Date, theUtilization Fee shall be payable only in respect of each day that suchaggregate Principal Debt exceeds 50% of the Total Commitment, and (ii) on andafter the Termination Date, the Utilization Fee shall be payable only inrespect of each day that such aggregate Principal Debt exceeds 50% of the TotalCommitment in existence on the Business Day immediately prior to thetermination of the Total Commitment. The Utilization Fee shall be due and payable quarterly in arrears on thelast Business Day of each March, June, September, and December, commencing withthe first such date to occur after the Closing Date, and ending on the dateboth the Principal Debt has been paid in full and the Total Commitment has beenterminated.  The Utilization Fee shallbe calculated quarterly in arrears in accordance with ***Section 2.10***,******and if there is any change in the ApplicableRate during any quarter, the actual daily amount shall be computed andmultiplied by the Applicable Rate (on a per diem basis) separately for eachperiod during such quarter that such Applicable Rate was in effect.  The Utilization Fee shall accrue at alltimes, including at any time during which one or more of the conditions in ***Article IV*** isnot met.

 

(c)                                  ClosingFees.                        On theClosing Date, the Borrower shall pay to the Administrative Agent, for therespective accounts of the Lenders, and the Arrangers, as applicable, theupfront fee and other fees described in the Bank of America Fee Letter and theJPMorgan Fee Letter.

 

(d)                                 AgencyFees.  The Borrower shall pay to theAdministrative Agent (for its own account) the agency fees described in theBank of America Fee Letter, which payments shall be made on the dates and inthe amounts specified in the Bank of America Fee Letter.

 

**2.10****                        Computation of Interest and Fees. **Computation of interest on Base RateLoans shall be calculated on the basis of a year of 365 or 366 days, as thecase may be, and the actual number of days elapsed.  Computation of all other types of interest and all fees shall becalculated on the basis of a year of 360 days and the actual number of dayselapsed, which results in a higher yield to the payee thereof than a methodbased on a year of 365 or 366 days. Interest shall accrue on each Loan for the day on which the Loan ismade, and shall not accrue on a Loan, or any portion thereof, for the day onwhich the Loan or such portion is paid; *provided**that* any Loan that is repaidon the same day on which it is made shall bear interest for one day.

 

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**2.11****                        Evidence of Debt.**

 

(a)                                  TheCredit Extensions made by each Lender shall be evidenced by one or moreaccounts or records maintained by such Lender and by the Administrative Agentin the ordinary course of business.  Theaccounts or records maintained by the Administrative Agent and each Lendershall be conclusive absent manifest error of the amount of the Credit Extensionsmade by the Lenders to the Borrower and the interest and payments thereon.  Any failure so to record or any error indoing so shall not, however, limit or otherwise affect the obligation of theBorrower hereunder to pay any amount owing with respect to the CreditExtensions.  In the event of anyconflict between the accounts and records maintained by any Lender and theaccounts and records of the Administrative Agent in respect of such matters,the accounts and records of the Administrative Agent shall control in theabsence of manifest error.  Upon therequest of any Lender made through the Administrative Agent, the Borrower shallexecute and deliver to such Lender (through the Administrative Agent) a Notewhich shall evidence such Lender’s Loans, in addition to such accounts orrecords.  Each Lender may attachschedules to its Note and endorse thereon the date, Type (if applicable),amount, and maturity of its Loans and payments with respect thereto.

 

(b)                                 Inaddition to the accounts and records referred to in ***subsection (a)***, each Lender and theAdministrative Agent shall maintain in accordance with its usual practiceaccounts or records evidencing the purchases and sales by such Lender ofparticipations in Letters of Credit.  Inthe event of any conflict between the accounts and records maintained by theAdministrative Agent and the accounts and records of any Lender in respect ofsuch matters, the accounts and records of the Administrative Agent shallcontrol in the absence of manifest error.

 

**2.12****                        Payments Generally.**

 

(a)                                  Allpayments to be made by the Borrower shall be made without condition ordeduction for any counterclaim, defense, recoupment, or setoff.  Except as otherwise expressly providedherein, all payments by the Borrower hereunder shall be made to theAdministrative Agent, for the account of the respective Lenders to which suchpayment is owed, at the Administrative Agent’s Office in Dollars and inimmediately available funds not later than 12:00 noon, Dallas, Texas time, onthe date specified herein.  TheAdministrative Agent will promptly distribute to each Lender its Pro Rata Share(or other applicable share as provided herein) of such payment in like funds asreceived by wire transfer to such Lender’s Lending Office.  All payments received by the AdministrativeAgent after 12:00 noon, Dallas Texas time, shall be deemed received on the nextsucceeding Business Day and any applicable interest or fee shall continue toaccrue.

 

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

 

(c)                                  Unlessthe Borrower or any Lender has notified the Administrative Agent prior to thedate any payment is required to be made by it to the Administrative Agenthereunder, that the Borrower or such Lender, as the case may be, will not makesuch payment, the Administrative Agent may assume that the Borrower or such Lender,as the case may be, has timely made such payment and may (but shall not be sorequired to), in reliance thereon, make available a corresponding amount to thePerson entitled thereto.  If and to theextent that such payment was not in fact made to the Administrative Agent inimmediately available funds, then:

 

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(i)                                     ifthe Borrower failed to make such payment, each Lender shall forthwith on demandrepay to the Administrative Agent the portion of such assumed payment that wasmade available to such Lender in immediately available funds, together withinterest thereon in respect of each day from and including the date such amountwas made available by the Administrative Agent to such Lender to the date suchamount is repaid to the Administrative Agent in immediately available funds, ata rate equal to the Federal Funds Rate; and

 

(ii)                                  ifany Lender failed to make such payment, such Lender shall forthwith on demandpay to the Administrative Agent the amount thereof in immediately availablefunds, together with interest thereon for the period from the date such amountwas made available by the Administrative Agent to the Borrower to the date suchamount is recovered by the Administrative Agent (the “***Compensation Period***”) at a rate equal to theFederal Funds Rate. If such Lender pays such amount to the AdministrativeAgent, then such amount shall constitute such Lender’s Loan or L/C Advance,included in the applicable Borrowing or L/C Borrowing.  If such Lender does not pay such amountforthwith upon the Administrative Agent’s demand therefor, the AdministrativeAgent may make a demand therefor upon the Borrower, and the Borrower shall paysuch amount to the Administrative Agent, together with interest thereon for theCompensation Period at a rate per annum equal to the rate of interestapplicable to the applicable Borrowing or L/C Borrowing.  Nothing herein shall be deemed to relieveany Lender from its obligation to fulfill its Commitment or to prejudice any rightswhich the Administrative Agent or the Borrower may have against any Lender as aresult of any default by such Lender hereunder.

 

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

 

(d)                                 Ifany Lender makes available to the Administrative Agent funds for any Loans orL/C Advances to be made by such Lender as provided in the foregoing provisionsof this ***Article II***,and such funds are not made available to the Borrower by the AdministrativeAgent because the conditions to the applicable Credit Extensions set forth in ***Article IV*** arenot satisfied or waived in accordance with the terms hereof, the AdministrativeAgent shall return such funds (in like funds as received from such Lender) tosuch Lender, without interest.

 

(e)                                  Theobligations of the Lenders hereunder to make Loans and to fund participationsin Letters of Credit are several and not joint.  The failure of any Lender to make any Loan or to fund any suchparticipation on any date required hereunder shall not relieve any other Lenderof its corresponding obligation to do so on such date, and no Lender shall beresponsible for the failure of any other Lender to so make its Loans orpurchase its participations.

 

(f)                                    Nothingherein shall be deemed to obligate any Lender to obtain the funds for any Loansor L/C Advances in any particular place or manner or to constitute arepresentation by any Lender that it has obtained or will obtain the funds forany Loan or L/C Advance in any particular place or manner.

 

**2.13****                        Sharing of Payments. **If, other than as expressly provided elsewhere herein, anyLender shall obtain on account of any Loan made by it, or any participation inthe L/C Obligations held by it, any payment (whether voluntary, involuntary,through the exercise of any right of set-off, or otherwise) by or for theaccount of the Borrower in excess of its Pro Rata Share (or other sharecontemplated hereunder) thereof, such Lender shall immediately (a) notify theAdministrative Agent of such fact, and (b) purchase from the other Lenders suchparticipations in the Loans made by them, and/or such subparticipations in theparticipations in L/C Obligations held by them, as shall be necessary to causethe Lenders to share the

 

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excess payment in respectof such Loan or participation in accordance with their Pro Rata Shares; *providedthat*, if all or any portion of such excess payment is thereafterrecovered from the purchasing Lender under any of the circumstances describedin ***Section 10.06***(including pursuant to any settlement entered into by the purchasing Lender inits discretion), such purchase shall to that extent be rescinded and each otherLender shall repay to the purchasing Lender the purchase price paid therefor,together with an amount equal to such paying Lender’s ratable share (accordingto the proportion of (i) the amount of such paying Lender’s required repaymentto (ii) the total amount so recovered from the purchasing Lender) of anyinterest or other amount paid or payable by the purchasing Lender in respect ofthe total amount so recovered without further interest thereon.  The Borrower agrees that any Lender sopurchasing a participation from another Lender may, to the fullest extentpermitted by law, exercise all its rights of payment (including the right ofset-off, but subject to ***Section 10.09***) with respect to such participationas fully as if such Lender were the direct creditor of the Borrower in theamount of such participation.  TheAdministrative Agent will keep records (which shall be conclusive and bindingin the absence of manifest error) of participations purchased under this ***Section 2.13*** andwill in each case notify the Lenders following any such purchases orrepayments.  Each Lender that purchasesa participation pursuant to this ***Section 2.13*** shall from and after such purchasehave the right to give all notices, requests, demands, directions, and othercommunications under this Agreement with respect to the portion of theObligations purchased to the same extent as though the purchasing Lender werethe original owner of the Obligations purchased.

 

**ARTICLE III****.****TAXES,YIELD, PROTECTION AND ILLEGALITY**

 

**3.01****                              Taxes.**

 

(a)                                  Anyand all payments by the Borrower to or for the account of the AdministrativeAgent or any Lender under any Loan Document shall be made free and clear of andwithout deduction for any and all present or future taxes, duties, levies,imposts, deductions, assessments, fees, withholdings, or similar charges, andall liabilities with respect thereto, *excluding*, in the case of theAdministrative Agent and each Lender, taxes imposed on or measured by itsoverall net income (including branch profits tax), and franchise taxes imposedon it by the United States government or other jurisdiction (or any politicalsubdivision thereof) under the Laws of which the Administrative Agent or suchLender, as the case may be, is organized or transacts business (all suchnon-excluded taxes, duties, levies, imposts, deductions, assessments, fees,withholdings, or similar charges, and liabilities being hereinafter referred toas “***Taxes***”).  If the Borrower shall be required by anyLaws to deduct any Taxes from or in respect of any sum payable under any LoanDocument to the Administrative Agent or any Lender, (i) the sum payable shallbe increased as necessary so that after making all required deductions(including deductions applicable to additional sums payable under this ***Section 3.01***),each of the Administrative Agent and such Lender receives an amount equal tothe sum it would have received had no such deductions been made, (ii) theBorrower shall make such deductions, (iii) the Borrower shall pay the fullamount deducted to the relevant taxation authority or other authority inaccordance with applicable Laws, and (iv) within 30 days after the date of suchpayment, the Borrower shall furnish to the Administrative Agent (which shallforward the same to such Lender) the original or a certified copy of a receiptevidencing payment thereof.

 

(b)                                 Inaddition, the Borrower agrees to pay any and all present or future stamp,court, or documentary taxes and similar levies which arise from any paymentmade under any Loan Document or from the execution, delivery, performance,enforcement, or registration of, or otherwise with respect to, any LoanDocument (hereinafter referred to as “***Other******Taxes***”).

 

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(c)                                  Ifthe Borrower shall be required to deduct or pay any Taxes or Other Taxes fromor in respect of any sum payable under any Loan Document to the AdministrativeAgent or any Lender, the Borrower shall also pay to the Administrative Agent(for the account of such Lender) or to such Lender, as the case may be, at thetime interest is paid, such additional amount that the Administrative Agent orsuch Lender specifies as necessary to preserve the after-tax yield (afterfactoring in all taxes, including taxes imposed on or measured by net income)that the Administrative Agent or such Lender would have received if such Taxesor Other Taxes had not been imposed.

 

(d)                                 TheBorrower agrees to indemnify the Administrative Agent and each Lender for (i)the full amount of Taxes and Other Taxes (including any Taxes or Other Taxesimposed or asserted by any jurisdiction on amounts payable under this ***Section 3.01***)paid by the Administrative Agent and such Lender, (ii) amounts payable underthe preceding ***subsection (c)***and (iii) any liability (including additions to tax, penalties, interest, andexpenses) arising therefrom or with respect thereto, in each case whether ornot such Taxes or Other Taxes were correctly or legally imposed or asserted bythe relevant Governmental Authority. Payment under this ***subsection (d)*** shall be made within 30 days afterthe date the Lender or the Administrative Agent makes a demand therefor.

 

(e)                                  Ifthe Administrative Agent or any Lender receives a refund specifically inrespect of any Taxes or Other Taxes as to which it has been indemnified by the Borroweror with respect to which the Borrower has paid additional amounts pursuant tothis ***Section 3.01***, itshall within 30 days from the date of such receipt pay over such refund to theBorrower (but only to the extent of indemnity payments made, or additionalamounts paid, by the Borrower under this ***Section 3.01*** with respect to the Taxes or OtherTaxes giving rise to such refund), net of all reasonable out-of-pocket expensesof such Administrative Agent or any Lender and without interest (other thaninterest paid by the relevant Governmental Authority with respect to suchrefund); *providedthat* the Borrower, upon the request of such Administrative Agent orany Lender, agrees to repay the amount paid over to the Borrower (pluspenalties and interest) to such Administrative Agent or any Lender in the eventsuch Administrative Agent or any Lender is required to repay such refund tosuch Governmental Authority.

 

**3.02****                        Illegality. **Ifany Lender determines that any Law has made it unlawful, or that any GovernmentalAuthority has asserted that it is unlawful, for any Lender or its applicableLending Office to make, maintain, or fund Eurodollar Rate Loans, or materiallyrestricts the authority of such Lender to purchase or sell, or to take depositsof, Dollars in the applicable offshore Dollar market, or to determine or chargeinterest rates based upon the Eurodollar Rate, then, on notice thereof by suchLender to the Borrower through the Administrative Agent, any obligation of suchLender to make or continue Eurodollar Rate Loans or to convert Base Rate Loansto Eurodollar Rate Loans shall be suspended until such Lender notifies theAdministrative Agent and the Borrower that the circumstances giving rise tosuch determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from suchLender (with a copy to the Administrative Agent), prepay or, if applicable,convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either onthe last day of the Interest Period therefor, if such Lender may lawfullycontinue to maintain such Eurodollar Rate Loans to such day, or immediately, ifsuch Lender may not lawfully continue to maintain such Eurodollar RateLoans.  Upon any such prepayment orconversion, the Borrower shall also pay interest on the amount so prepaid orconverted.  Each Lender agrees todesignate a different Lending Office if such designation will avoid the needfor such notice and will not, in the good faith judgment of such Lender, otherwisebe materially disadvantageous to such Lender.

 

**3.03****                        Inability to Determine Rates. **If the Administrative Agent determines,in connection with any request for a Eurodollar Rate Loan or a conversion to orcontinuation thereof, that (a) Dollar deposits are not being offered to banksin the applicable Dollar market for the applicable amount and 

 

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Interest Period of suchEurodollar Rate Loan, (b) Required Lenders determine that for any reasonadequate and reasonable means do not exist for determining the Eurodollar Ratefor any required Interest Period with respect to a proposed Eurodollar RateLoan, or (c) that the Eurodollar Rate for any requested Interest Period withrespect to a proposed Eurodollar Rate Loan does not adequately and fairlyreflect the cost to the Lenders of funding such Eurodollar Rate Loan, theAdministrative Agent will promptly notify the Borrower and each Lender.  Thereafter, the obligation of the Lenders tomake or maintain Eurodollar Rate Loans shall be suspended until theAdministrative Agent (upon the instruction of the Required Lenders) revokessuch notice.  Upon receipt of suchnotice, the Borrower may revoke any pending request for a Borrowing,conversion, or continuation of Eurodollar Rate Loans or, failing that, will bedeemed to have converted such request into a request for a Borrowing of BaseRate Loans in the amount specified therein.

 

**3.04****                        Increased Cost and Reduced Return;Capital Adequacy; Reserves on Eurodollar Rate Loans.**

 

(a)                                  Ifany Lender determines that as a result of the introduction of or any change inor in the interpretation of any Law, or such Lender’s reasonable compliancetherewith, there shall be any increase in the cost to such Lender of agreeingto make or making, funding, or maintaining Eurodollar Rate Loans, or (as thecase may be) issuing or participating in Letters of Credit, or a reduction inthe amount received or receivable by such Lender in connection with any of theforegoing (excluding for purposes of this ***subsection (a)*** any such increased costs orreduction in amount resulting from (i) Taxes or Other Taxes (as to which ***Section 3.01***shall govern), (ii) changes in the basis of taxation of overall net income oroverall gross income by the United States or any foreign jurisdiction or any politicalsubdivision of either thereof under the Laws of which such Lender is organizedor has its Lending Office, and (iii) reserve requirements contemplated by ***Section 3.04(c)***,then from time to time upon demand of such Lender (with a copy of such demandto the Administrative Agent), the Borrower shall pay to such Lender suchadditional amounts as will compensate such Lender for such increased cost orreduction.

 

(b)                                 Ifany Lender determines that the introduction of any Law regarding capitaladequacy or any change therein or in the interpretation thereof, or reasonablecompliance by such Lender (or its Lending Office) therewith, has the effect ofreducing the rate of return on the capital of such Lender or any corporationcontrolling such Lender as a consequence of such Lender’s obligations hereunder(taking into consideration its policies with respect to capital adequacy andsuch Lender’s desired return on capital), then from time to time upon demand ofsuch Lender (with a copy of such demand to the Administrative Agent), theBorrower shall pay to such Lender such additional amounts as will compensatesuch Lender for such reduction.

 

(c)                                  Atany time and as long as any Lender shall be required to maintain reserves withrespect to liabilities or assets consisting of or including Eurocurrency fundsor deposits (currently known as “***Eurocurrency liabilities***”), the Borrower shall pay tosuch Lender additional costs on the unpaid principal amount of each EurodollarRate Loan equal to the actual costs of such reserves allocated to suchEurodollar Rate Loan by such Lender (as determined by such Lender in goodfaith, which determination shall be conclusive), which shall be due and payableon each date on which interest is payable on such Eurodollar Rate Loan; *providedthat*the Borrower shall have received at least 15 days’ prior notice(with a copy to the Administrative Agent) of such additional interest from suchLender.  If a Lender fails to givenotice 15 days prior to the relevant Interest Payment Date, such additionalinterest shall be due and payable 15 days from receipt of such notice.  Each Lender represents to the Borrower thatas of the Closing Date it is not required to maintain reserves with respect toEurocurrency Liabilities; *provided that* such representation (i) doesnot apply to any date after the Closing Date and (ii) is not made by any Lenderthat is not party to this Agreement on the Closing Date.

 

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(d)                                 Withrespect to each demand by a Lender under this ***Section 3.04***, no Lender shall have theright to demand compensation under this***Section 3.04*** for any period which is 90 days priorto the date such Lender gives such demand for compensation to the Borrower.

 

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

 

(a)                                  anycontinuation, conversion, payment, or prepayment of any Borrowing other than aBase Rate Loan on a day other than the last day of the Interest Period for suchBorrowing (whether voluntary, mandatory, automatic, by reason of acceleration,or otherwise);

 

(b)                                 anyfailure by the Borrower (for a reason other than the failure of such Lender tomake a Loan) to prepay, borrow, continue, or convert any Borrowing other than aBase Rate Loan on the date or in the amount notified by the Borrower; or

 

(c)                                  anyassignment of a Eurodollar Rate Loan on a day other than the last day of theInterest Period therefor as a result of a request by the Borrower pursuant to ***Section 10.16***,including any loss of anticipated profits and any loss or expense arising fromthe liquidation or reemployment of funds obtained by it to maintain such Loanor from fees payable to terminate the deposits from which such funds wereobtained.  The Borrower shall also payany customary administrative fees charged by such Lender in connection with theforegoing.

 

For purposes of calculatingamounts payable by the Borrower to the Lenders under this ***Section 3.05***, each Lender shall bedeemed to have funded each Eurodollar Rate Loan made by it at the EurodollarRate for such Loan by a matching deposit or other borrowing in the applicableLondon interbank eurodollar market for a comparable amount and for a comparableperiod, whether or not such Eurodollar Rate Loan was in fact so funded.

 

**3.06****                        Matters Applicable to all Requestsfor Compensation.**

 

(a)                                  Acertificate of the Administrative Agent or any Lender to the Borrower, claimingcompensation under this ***Article III*** and setting forth in reasonable detailthe additional amount or amounts to be paid to it hereunder and the basis forthe claim, shall be conclusive in the absence of manifest error.  In determining such amount, theAdministrative Agent or such Lender may use any reasonable averaging andattribution methods.

 

(b)                                 Uponany Lender’s making a claim for compensation under ***Section 3.01*** or ***3.04***, the Borrower may remove or replace suchLender in accordance with ***Section 10.16***.

 

**3.07****                        Survival. **Allof the Borrower’s obligations under this ***Article III*** shall survive termination of theCommitments and payment in full of all the other Obligations.

 

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**ARTICLE IV****.****CONDITIONSPRECEDENT**

 

**4.01****                        Conditions to Closing. **This Agreement shall not becomeeffective unless the following conditions precedent are satisfied:

 

(a)                                  TheAdministrative Agent’s receipt of the following, each of which shall beoriginals or facsimiles (followed promptly by originals), each of which shallbe dated the Closing Date (or, in the case of certificates of governmentalofficials, a recent date before the Closing Date):

 

(i)                                     counterpartsof this Agreement, sufficient in number for distribution to the AdministrativeAgent, each Lender, and the Borrower, executed by the Administrative Agent, theL/C Issuer, the Syndication Agent, each Lender, and the chairman or chiefexecutive officer and president of the Borrower;

 

(ii)                                  ANote executed by a Responsible Officer of the Borrower in favor of each Lenderrequesting such a Note, in a principal amount equal to such Lender’sCommitment;

 

(iii)                               aSecretary’s Certificate in the form of ***Exhibit E,*** signed by the Responsible Officers namedtherein;

 

(iv)                              Certificatesevidencing the good standing of the Borrower in the states of Arkansas,Delaware, Georgia, and Ohio;

 

(v)                                 acertificate signed by a Responsible Officer of the Borrower certifying (A) thatthere has been no change, occurrence, or development since the date of theAudited Financial Statements, which has or could be reasonably expected to havea material adverse effect on the business, assets, liabilities (actual orcontingent), operations, condition (financial or otherwise), or prospects ofthe Borrower and its Subsidiaries taken as a whole, and (B) the current DebtRatings (which Debt Rating must be a minimum of BBB+/Baa1 by both S&P andMoody’s, respectively) and further certifying that neither rating agency hasindicated that such Debt Ratings would be downgraded below BBB+/Baa1, aftergiving effect to the execution of the Loan Documents;

 

(vi)                              anopinion of counsel to the Borrower in the form of ***Exhibit F***;

 

(vii)                           evidencethat the Existing Credit Agreements have been or concurrently with the ClosingDate are being terminated and that all amounts owing under the Existing CreditAgreements have been repaid in full; and

 

(viii)                        such otherassurances, certificates, documents, consents, or opinions, in form andsubstance reasonably satisfactory to the Administrative Agent, as theAdministrative Agent, the L/C Issuer, or the Required Lenders reasonably mayrequire.

 

(b)                                 Anyfees required to be paid on or before the Closing Date shall have been paid.

 

(c)                                  Unlesswaived by the Administrative Agent, the Borrower shall have paid all attorneys’fees and expenses of counsel to the Administrative Agent to the extent invoicedprior to or on the Closing Date, plus such additional amounts of attorneys’fees and expenses of counsel to the Administrative Agent as shall constituteits reasonable estimate of the attorneys’ fees and expenses of counsel to the

 

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Administrative Agentincurred or to be incurred by it through the closing proceedings; *providedthat* such estimate shall not thereafter preclude a final settling ofaccounts between the Borrower and the Administrative Agent.

 

(d)                                 Therepresentations and warranties of the Borrower contained in ***Article V*** shallbe true and correct on and as of the Closing Date.

 

(e)                                  TheClosing Date shall have occurred on or before July 28, 2004.

 

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

 

**4.02****                        Conditions to all Credit Extensions. **The obligation of each Lender to honorany Request for Credit Extension (other than a Loan Notice requesting only aconversion of Loans to the other Type, or a continuation of Eurodollar RateLoans) on or after the Closing Date is subject to the satisfaction of thefollowing conditions precedent:

 

(a)                                  Therepresentations and warranties of the Borrower contained in ***Article V***(otherthan ***Sections 5.04, 5.05(b),******5.06, 5.07(a),***and ***5.09***, unless suchRequest for Credit Extension is requested to be honored on the Closing Date)and each Compliance Certificate shall be true and correct on and as of the dateof such Credit Extension, except to the extent that such representations andwarranties specifically refer to an earlier date, in which case they shall betrue and correct as of such earlier date;

 

(b)                                 NoDefault or Event of Default shall exist, or would result from such proposedCredit Extension;

 

(c)                                  TheAdministrative Agent and, if applicable, the L/C Issuer shall have received aRequest for Credit Extension in accordance with the requirements hereof; and

 

(d)                                 Allfees and expenses due and payable on or prior to the date of such CreditExtension shall have been paid.

 

Each Request for CreditExtension (other than a Loan Notice requesting only a conversion of a Borrowingto the other Type or a continuation of a Eurodollar Rate Loan) submitted by theBorrower shall be deemed to be a representation and warranty that theconditions specified in this ***Section 4.02***have been satisfied on and as of thedate of the applicable Credit Extension.

 

**ARTICLE V****.****REPRESENTATIONSAND WARRANTIES**

 

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

 

**5.01****                        Existence, Qualification, and Power;Compliance with Laws. **TheBorrower and each of its Subsidiaries (a) is an entity duly organized orformed, validly existing, and in good standing under the Laws of thejurisdiction of its incorporation or organization, (b) has all requisite powerand

 

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authority and allgovernmental licenses, authorizations, consents, and approvals to own itsassets and to carry on its business, (c) is duly qualified and is licensed andin good standing under the Laws of each jurisdiction where its ownership,lease, or operation of properties or the conduct of its business requires suchqualification or license, and (d) is in compliance with all Laws, except ineach case referred to in ***clauses (b), (c),*** or ***(d)*** of this ***Section 5.01***, to the extent that failureto do so would not reasonably be expected to have a Material Adverse Effect.

 

**5.02****                        Authorization; No Contravention. **The execution, delivery, and performanceby the Borrower of each Loan Document, (a) have been duly authorized by allnecessary corporate or other organizational action and do not and will not (i)contravene the terms of any of the Borrower’s Organization Documents, (ii)conflict with or result in any breach or contravention of, or the creation ofany Lien under, any material Contractual Obligation to which the Borrower is aparty or any order, injunction, writ, or decree of any Governmental Authorityto which the Borrower or its property is subject, or (iii) violate any Law, and(b) require no consent, approval, or authorization from any Person which hasnot been obtained.

 

**5.03****                        Governmental Authorization. **No approval, consent, exemption,authorization, or other action by, or notice to, or filing with, anyGovernmental Authority is necessary or required in connection with theexecution, delivery, or performance by, or enforcement against, the Borrower ofthis Agreement or any other Loan Document.

 

**5.04****                        Binding Effect. **This Agreement has been, and each other Loan Document, whendelivered hereunder, will have been duly executed and delivered by theBorrower.  This Agreement constitutes,and each other Loan Document when so delivered will constitute, a legal, valid,and binding obligation of the Borrower, enforceable against the Borrower inaccordance with its terms, except as enforceability may be limited by generalprinciples of equity and applicable Debtor Relief Laws.

 

**5.05****                        Financial Statements; No MaterialAdverse Effect. **(a) The CurrentFinancials (i) were prepared in accordance with GAAP throughout the periodcovered thereby, except as otherwise expressly noted therein, (ii) fairlypresent, in all material respects, the financial condition of the Borrower andits Subsidiaries as of the date thereof and their results of operations for theperiod covered thereby in accordance with GAAP throughout the period coveredthereby, except as otherwise expressly noted therein, and (iii) show allmaterial indebtedness and other liabilities, direct or contingent, of theBorrower and its Subsidiaries as of the date thereof, including liabilities fortaxes, material commitments, and Indebtedness in accordance with GAAPthroughout the period covered thereby; and

 

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

 

**5.06****                        Litigation. **Thereare no actions, suits, proceedings, investigations, claims, or disputes pendingor, to the knowledge of the Borrower after due inquiry, threatened orcontemplated, at law, in equity, in arbitration or before any GovernmentalAuthority, by or against the Borrower or any of its Subsidiaries or against anyof their properties or revenues which (a) purport to affect or pertain to thisAgreement or any other Loan Document, or any of the lending transactionscontemplated hereby, or (b) either individually or in the aggregate would reasonablybe expected to have a Material Adverse Effect.

 

**5.07****                        No Default. **(a)Neither the Borrower nor any Subsidiary is in default under or with respect toany Contractual Obligation which could, either individually or in theaggregate, be reasonably expected to have a Material Adverse Effect; and (b) noDefault or Event of Default has occurred and is

 

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continuing or wouldresult from the consummation of the transactions contemplated by this Agreementor any other Loan Document.

 

**5.08****                        Ownership of Property; Liens. **Each of the Borrower and each Subsidiaryhas good and marketable title in fee simple to, or valid leasehold interestsin, all real property and good title to all of their respective other properties,except for such defects in title as would not, individually or in theaggregate, reasonably be expected to have a Material Adverse Effect.  The property of the Borrower and itsSubsidiaries is subject to no Liens, other than the presently existing andfuture Liens permitted by ***Section 7.01***.

 

**5.09****                        Environmental Compliance. **The Borrower and its Subsidiariesconduct in the ordinary course of business a review of the effect of existingEnvironmental Laws and claims alleging potential liability or responsibilityfor violation of any Environmental Law on their respective businesses,operations and properties, and as a result thereof the Borrower has reasonablyconcluded that such Environmental Laws and claims would not, individually or inthe aggregate, reasonably be expected to have a Material Adverse Effect.

 

**5.10****                        Taxes. **TheBorrower and its Subsidiaries have filed all federal, state, and other materialtax returns and reports required to be filed, and have paid all materialfederal, state, and other taxes, assessments, fees, and other governmentalcharges levied or imposed upon them or their properties, income, or assetsotherwise due and payable, except those which are being contested in good faithby appropriate proceedings diligently conducted and for which adequate reserveshave been provided in accordance with GAAP. There is no proposed tax assessment against the Borrower or anySubsidiary that would, if made, have a Material Adverse Effect.

 

**5.11****                        ERISA Compliance**.  Except to the extent that any such event,condition, claim, action, lawsuit, violation, prohibited transaction,application, contribution, or liability, individually or when aggregated withany other event, condition, claim, action, lawsuit, violation, prohibitedtransaction, application, contribution, or liability contemplated by this ***Section 5.11***,would not reasonably be expected to result in a Material Adverse Effect orliabilities (individually or in the aggregate) exceeding $250,000,000:

 

(a)                                  EachPlan is in compliance in all material respects with the applicable provisionsof ERISA, the Code, and other Federal or state Laws.  Each Plan that is intended to qualify under *Section 401(a)*of the**Codehas received a favorable determination letter from the IRS or an applicationfor such a letter is currently being processed by the IRS with respect theretoand, to the best knowledge of the Borrower, nothing has occurred which wouldprevent, or cause the loss of, such qualification.  The Borrower and each ERISA Affiliate have made all requiredcontributions to each Plan subject *to Section 412*of the**Code,and no application for a funding waiver or an extension of any amortizationperiod pursuant to *Section 412*of the**Codehas been made with respect to any Plan.

 

(b)                                 Thereare no pending or, to the best knowledge of the Borrower, threatened claims,actions or lawsuits, or action by any Governmental Authority, with respect toany Plan.  There has been no prohibitedtransaction or violation of the fiduciary responsibility rules with respect toany Plan which is continuing.

 

(c)                                  (i)  No ERISA Event has occurred and iscontinuing or is reasonably expected to occur, (ii) no Pension Plan has anyUnfunded Pension Liability, (iii) neither the Borrower nor any ERISA Affiliatehas incurred, or reasonably expects to incur, any liability under *Title IV*of**ERISAwith respect to any Pension Plan (other than premiums due and not delinquentunder *Section 4007*of**ERISA), other

 

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than such liabilitieswhich have been discharged on or prior to the Closing Date, (iv) neither theBorrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,any liability (and no event has occurred which, with the giving of notice under*Section 4219*of**ERISA, would result in such liability) under *Sections4201*or*4243*of**ERISA with respect to a MultiemployerPlan, other than such liabilities which have been discharged on or prior to theClosing Date, and (v) neither the Borrower nor any ERISA Affiliate has engagedand is continuing to engage in a transaction that could be subject to *Sections4069*or*4212(c)*of**ERISA.

 

**5.12****                        Margin Regulations; InvestmentCompany Act; Public Utility Holding Company Act.**

 

(a)                                  TheBorrower is not engaged and will not engage, principally or as one of itsimportant activities, in the business of purchasing or carrying margin stock(within the meaning of Regulation U issued by the Board), or extending creditfor the purpose of purchasing or carrying margin stock. Following theapplication of the proceeds of any Borrowing or drawing under any Letter ofCredit, not more than 25% of the value of the assets (either of the Borroweronly or of the Borrower and its Subsidiaries on a consolidated basis) subjectto the provisions of ***Sections 7.01***or***7.04***will be margin stock.

 

(b)                                 Noneof the Borrower, any “*Affiliate”* (as defined in the *PublicUtility Holding Company Act of 1935*, and excluding any naturalPersons) of the Borrower, or any Subsidiary (i) is a “*holding company*” within themeaning of the *Public Utility Holding Company Act of 1935*, or (ii) is or isrequired to be registered as an “*investment**company*” under the *InvestmentCompany Act of 1940*.

 

**5.13****                        Rank of Debt. **TheObligations are “*Senior Debt*” and will constitute direct, unconditional, andgeneral obligations of the Borrower ranking prior to or pari passu in allrespects with all of the Borrower’s other Indebtedness, except as permitted by ***Section 7.01***.

 

**5.14****                        Disclosure. **Norepresentation or warranty made by the Borrower in any Loan Document (excludingFinancial Statements, which are addressed in ***Section 5.05***) contains any untruestatement of a material fact. As of the Closing Date, there is no fact known tothe Borrower which could reasonably be expected to have a Material AdverseEffect and which has not been disclosed to the Lenders in writing.

 

**ARTICLE VI****.****AFFIRMATIVECOVENANTS**

 

So long as any Lendershall have any Commitment hereunder, any Loan or Obligation shall remain unpaidor unsatisfied, or any Letter of Credit shall remain outstanding, the Borrowershall, and shall (except in the case of the covenants set forth in ***Sections 6.01***, ***6.02***, ***6.03***, ***6.04(a),*** and ***6.11***) cause eachSubsidiary to:

 

**6.01****                        Financial Statements. **Deliver to the Administrative Agent:

 

(a)                                  assoon as available, but in any event within 120 days after the end of eachfiscal year of the Borrower, Financial Statements showing the consolidatedfinancial condition and results of operations of the Borrower and itsSubsidiaries as at the end of such fiscal year, accompanied by a report andopinion of an independent certified public accountant of nationally recognizedstanding reasonably acceptable to the Required Lenders, which report andopinion shall be prepared in accordance with

 

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generally acceptedauditing standards and shall not be subject to any “*going concern*” or likequalification or exception or any qualification or exception as to the scope ofthe audit nor to any qualifications and exceptions not reasonably acceptable tothe Administrative Agent; and

 

(b)                                 assoon as available, but in any event within 45 days after the end of each of thefirst three fiscal quarters of each fiscal year of the Borrower, FinancialStatements showing the consolidated financial condition and results ofoperations of the Borrower and its Subsidiaries as at the end of such fiscalquarter, and the related consolidated statements of income and cash flows forsuch fiscal quarter and for the portion of the Borrower’s fiscal year thenended, all in reasonable detail and certified by a Responsible Officer of theBorrower as fairly presenting, in all material respects, the financialcondition, results of operations and cash flows of the Borrower and itsconsolidated Subsidiaries in accordance with GAAP, subject only to normalyear-end audit adjustments and the absence of footnotes.

 

**6.02****                        Certificates; Other Information. **Deliver to the Administrative Agent (orotherwise make available to the Lenders in the case of ***subsection (d)***below):

 

(a)                                  concurrentlywith the delivery of the financial statements referred to in ***Section 6.01(a)***,a certificate of its independent certified public accountants certifying suchfinancial statements and stating that in making the examination necessary fortheir report and opinion thereon no knowledge was obtained of any Default orEvent of Default under ***Sections 8.01(a)***or***(b)*** (but only to the extent ***Section 8.01(b)*** relates to the covenantin ***Section 7.09***),or, if any such Default or Event of Default shall exist, stating the nature andstatus of such event;

 

(b)                                 concurrentlywith the delivery of the Financial Statements referred to in ***Sections 6.01(a)*** and ***(b),*** a duly completedCompliance Certificate signed by a Responsible Officer of the Borrower;

 

(c)                                  promptlyafter the same are available, copies (which may be delivered in an electronicformat satisfactory to the Administrative Agent) of each of the followingdocuments of the Borrower not otherwise required to be delivered to theAdministrative Agent pursuant to this Agreement:

 

(i)                                     proxystatements and annual reports to shareholders;

 

(ii)                                  annualreports on Form 10-K; and

 

(iii)                               quarterlyreports on Form 10-Q;

 

(d)                                 promptlyafter the same are available, copies (which may be made available in anelectronic format satisfactory to the Administrative Agent) of each currentreport on Form 8-K and transaction statement on Schedule TO, 13D or 13E-3that the Borrower may file under the *Securities Exchange Act of 1934*; and

 

 (e)                               as soon as reasonablypracticable, such additional information, in form and detail reasonablysatisfactory to the Administrative Agent or the Lender requesting theinformation regarding the business, financial, or corporate affairs of theBorrower or any Subsidiary, or compliance with the terms of the Loan Documents,as the Administrative Agent or any Lender may from time to time reasonablyrequest by written notice to the Borrower.

 

The reports required tobe delivered pursuant to ***clause (d)*** of this ***Section 6.02*** shall be deemed delivered on the dateon which the same have been posted on the Securities and Exchange Commission’sweb site at www.sec.gov; *provided that*, that the Borrower shalldeliver paper copies of the reports

 

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referred to in ***clause (d)*** of this ***Section 6.02*** tothe Administrative Agent or any Lender who requests such reports in paper form.

 

The Borrower herebyacknowledges that (a) the Administrative Agent and/or the Arrangers will makeavailable to the Lenders and the L/C Issuer materials and/or informationprovided by or on behalf of the Borrower hereunder (collectively, “***Borrower Materials***”)by posting the Borrower Materials on IntraLinks or another similar electronicsystem (the “***Platform***”)and (b) certain of the Lenders may be “public-side” Lenders (*i.e.,*Lenders that do not wish to receive material non-public information withrespect to the Borrower or its securities) (each, a “***Public Lender***”).  The Borrower hereby agrees that (w) all Borrower Materials thatare to be made available to Public Lenders shall be clearly and conspicuouslymarked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shallappear prominently on the first page thereof; (x) by marking Borrower Materials“PUBLIC,” the Borrower shall be deemed to have authorized the AdministrativeAgent, the Arranger, the L/C Issuer and the Lenders to treat such BorrowerMaterials as either publicly available information or not material information(although it may be sensitive and proprietary) with respect to the Borrower orits securities for purposes of United States Federal and state securities laws;(y) all Borrower Materials marked “PUBLIC” are permitted to be made availablethrough a portion of the Platform designated “Public Investor;” and (z) theAdministrative Agent and the Arrangers shall be entitled to treat any BorrowerMaterials that are not marked “PUBLIC” as being suitable only for posting on aportion of the Platform not designated “Public Investor.”

 

**6.03****                        Notices.**

 

Notify the AdministrativeAgent no later than five Business Days after a Responsible Officer of theBorrower has knowledge:

 

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

 

(b)                                 ofany litigation, investigation, or proceeding affecting the Borrower or anySubsidiary, including pursuant to any Environmental Law, (i) in which theamount involved exceeds $250,000,000, or (ii) in which injunctive relief or similar relief is sought, which would bereasonably expected to have a Material Adverse Effect; and

 

(c)                                  ofthe occurrence of any material ERISA Event.

 

Each notice pursuant tothis ***Section 6.03***shall be accompanied by a statement of a Responsible Officer of the Borrowersetting forth details of the occurrence referred to therein and stating whataction the Borrower has taken and proposes to take with respect thereto,accompanied by copies of any notice or report of, or with respect to, anyReportable Event received by the Borrower or any Subsidiary or given by theBorrower or any Subsidiary to the PBGC. Each notice pursuant to ***Section 6.03(a)*** shall describe the provisions ofthis Agreement or other Loan Document that have been breached.

 

**6.04****                        Payment of Obligations. **(a) Pay the Obligations in accordancewith the terms and provisions of the Loan Documents, and (b) pay and discharge,as the same shall become due and payable, all its obligations and liabilities,including (i) all tax liabilities, assessments, and governmental charges orlevies upon it or its properties or assets, unless the same are being contestedin good faith by appropriate proceedings diligently conducted and adequatereserves in accordance with GAAP are being maintained by the Borrower or suchSubsidiary, (ii) all lawful claims which, if unpaid, would by law become a Lienupon its property, and (iii) all Indebtedness, as and when due and payable, butsubject to any subordination provisions contained in any instrument oragreement evidencing such Indebtedness, except,

 

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in each case under thepreceding ***clauses (b)(i),(b)(ii),*** and ***(b)(iii),*** to the extent such non-payment would notreasonably be expected to have a Material Adverse Effect.

 

**6.05****                        Preservation of Existence, Etc. **(a) Preserve, renew, and maintain infull force and effect its legal existence and good standing under the Laws ofthe jurisdiction of its organization, and (b) take all reasonable action tomaintain all rights, privileges, permits, licenses, and franchises necessary ordesirable in the normal conduct of its business, except (i) in a transactionpermitted by ***Section 7.04,***or(ii) where the failure to do so would not reasonably be expected to have aMaterial Adverse Effect.

 

**6.06****                        Maintenance of Properties. **(a) Maintain, preserve, and protect allof its material properties and equipment necessary in the operation of itsbusiness in good working order and condition, ordinary wear and tear excepted,and (b) make all necessary repairs thereto and renewals and replacementsthereof, except, in either case, where the failure to do so would notreasonably be expected to have a Material Adverse Effect.

 

**6.07****                        Maintenance of Insurance. **Maintain with financially sound andreputable insurance companies not Affiliates of the Borrower, insurance withrespect to its properties and business against loss or damage of the kindscustomarily insured against by Persons engaged in the same or similar business,of such types and in such amounts as are customarily carried under similarcircumstances by such other Persons; *provided that* the Borrower or itsSubsidiaries may maintain self-insurance in connection with the foregoingproperty insurance requirements, *so long as* the same is maintained inaccordance with sound business practices.

 

**6.08****                        Compliance with Laws. **Comply in all material respects with the requirements of allLaws applicable to it or to its business or property, except in such instancesin which (a) such requirement of Law is being contested in good faith or a bonafide dispute exists with respect thereto, or (b) the failure to complytherewith would not be reasonably expected to have a Material Adverse Effect.

 

**6.09****                        Books and Records. **(a)  Maintain proper books ofrecord and account, in which entries in conformity with GAAP shall be made ofall financial transactions and matters involving the assets and business of theBorrower or such Subsidiary, as the case may be, and (b) maintain such books ofrecord and account in material conformity with all applicable requirements ofany Governmental Authority having regulatory jurisdiction over the Borrower orsuch Subsidiary, as the case may be.

 

**6.10****                        Inspection Rights. **Permit representatives and independent contractors of theAdministrative Agent and each Lender to visit and inspect any of itsproperties, to examine its corporate, financial and operating records, and makecopies thereof or abstracts therefrom, and to discuss its affairs, finances,and accounts with its directors, officers, and independent public accountants,all at the expense of the Borrower and at such reasonable times during normalbusiness hours and as often as may be reasonably desired, upon reasonableadvance written notice to the Borrower; *provided that*, when an Event of Defaultexists, the Administrative Agent or any Lender (or any of their respectiverepresentatives or independent contractors) may do any of the foregoing at theexpense of the Borrower at any time during normal business hours and withoutadvance notice.

 

**6.11****                        Use of Proceeds. **Use the proceeds of the Credit Extensions for working capital andother general corporate purposes, including capital expenditures, acquisitions,and the provision of liquidity in connection with any commercial paper programof the Borrower.

 

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**ARTICLE VII****.****NEGATIVECOVENANTS**

 

So long as any Lendershall have any Commitment hereunder, any Loan or Obligation shall remain unpaidor unsatisfied, or any Letter of Credit shall remain outstanding:

 

**7.01****                        Liens. **TheBorrower shall not, nor shall it permit any Subsidiary to, directly orindirectly, create, incur, assume or suffer to exist, any Lien upon any of itsproperty, assets, or revenues, whether now owned or hereafter acquired, otherthan the following:

 

(a)                                  Lienspursuant to any Loan Document;

 

(b)                                 Liensexisting on the date hereof in connection with the Indebtedness listed on ***Schedule 7.02***and identified as secured Indebtedness on such schedule, and any renewals orextensions thereof; *provided**that* the property subjectthereto is not increased and any renewal or extension of the Indebtednesssecured or benefited thereby is permitted by ***Sections 7.02(b*)**or***7.03(a)***;

 

(c)                                  Liensfor taxes not yet due or which are being contested in good faith and byappropriate proceedings, diligently conducted, if adequate reserves withrespect thereto are maintained on the books of the applicable Person inaccordance with GAAP;

 

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

 

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

 

(f)                                    depositsto secure the performance of bids, trade contracts, and leases (other thanIndebtedness), statutory obligations, surety bonds (other than bonds related tojudgments and litigation), performance bonds, and other obligations of a likenature incurred in the ordinary course of business;

 

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

 

(h)                                 Lienssecuring judgments for the payment of money in an aggregate amount not inexcess of $250,000,000 (except to the extent covered by independent third-partyinsurance as to which the insurer has acknowledged in writing its obligation tocover), unless any such judgment remains undischarged for a period of more than60 consecutive days during which execution is not effectively stayed;

 

(i)                                     Lienssecuring Indebtedness permitted under ***Sections 7.02(e)***and***7.03(f);****provided that* (i) such Liens do not at anytime encumber any property other than the property financed by suchIndebtedness, and (ii) the Indebtedness secured thereby does not exceed 100% ofcost or fair market value, whichever is lower, of the property being acquiredon the date of acquisition;

 

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(j)                                     Lienssecuring Indebtedness permitted under ***Section 7.02(f)***; and

 

(k)                                  Lienssecuring Indebtedness permitted under ***Section 7.03(c)***;*******provided that* such Liens exist at the timethe relevant asset or Person is acquired by, or merged or consolidated with,the applicable Subsidiary.

 

**7.02****                        Indebtedness. **TheBorrower shall not, directly or indirectly, create, incur, assume or suffer toexist any Indebtedness, except:

 

(a)                                  Indebtednessunder the Loan Documents;

 

(b)                                 Indebtednessexisting on the date hereof and listed on ***Schedule 7.02***as Indebtedness of the Borrower, inan amount not to exceed the amount listed on ***Schedule 7.02***, and refinancings,refundings, renewals, extensions, and replacements of such Indebtedness that donot increase the outstanding principal amount thereof at the time of suchrefinancing, refunding, renewal, extension, or replacement;

 

(c)                                  GuarantyObligations of the Borrower in respect of Indebtedness of Subsidiariespermitted under ***Section 7.03***;

 

(d)                                 obligations(contingent or otherwise) of the Borrower existing or arising under any SwapContract; *provided**that*(i) such obligations are (or were) entered into by the Borrower for the purposeof directly mitigating risks associated with liabilities, commitments,investments, assets, or property held or reasonably anticipated by theBorrower, or changes in the value of securities issued by the Borrower, and notfor purposes of speculation or taking a “*market view*,” and (ii) such Swap Contractdoes not contain a provision designating the “*First Method*” (as defined inthe form of the Master Agreement) or any other provision directly or indirectlyexonerating the non-defaulting party from its obligation to make payments onoutstanding transactions to the defaulting party after the occurrence of an “*EarlyTermination Date*” (as defined in such Swap Contract);

 

(e)                                  Indebtednessin respect of capital leases, Synthetic Lease Obligations, and purchase moneyobligations for fixed or capital assets, *so long as*any Liens securing suchIndebtedness satisfy the requirements of ***Section 7.01(i)***;

 

(f)                                    Othersecured Indebtedness of the Borrower; *provided that* the aggregate principalamount of the secured Indebtedness of the Borrower incurred pursuant to this ***Section 7.02(f)****plus*the aggregate principal amount of the Indebtedness of the Borrower incurredpursuant to ***Section 7.02(h)***at any time outstanding does not exceed 3% of Consolidated Net Tangible Assets;

 

(g)                                 Indebtednessof the Borrower not otherwise permitted by this ***Section 7.02***, *so long as* (i) no Default orEvent of Default exists on the date any such Indebtedness is created, incurred,assumed, or arises after giving effect to such incurrence of Indebtedness, (ii)such Indebtedness is unsecured, and (iii) such Indebtedness shall not have aclaim on any assets or earnings of the Borrower or its Subsidiaries rankingprior to the Obligations; and

 

(h)                                 Indebtednessof the Borrower arising under one or more surety bonds issued or obtained inthe ordinary course of business; *provided that* the aggregate principalamount of the Indebtedness of the Borrower incurred pursuant to this ***Section 7.02(h)****plus*the aggregate principal of the secured Indebtedness of the Borrower incurredpursuant to ***Section 7.02(f)***atany time outstanding does not exceed 3% of Consolidated Net Tangible Assets.

 

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**7.03****                        Subsidiary Indebtedness. **The Borrower shall not permit anySubsidiary, directly or indirectly, to create, incur, assume, or permit toexist any Indebtedness, except:

 

(a)                                  Indebtednessexisting on the date hereof and listed on ***Schedule 7.02*** as Indebtedness of a Subsidiary, inan amount not to exceed the amount listed on ***Schedule 7.02***, and refinancings,refundings, renewals, extensions, and replacements of such Indebtedness that donot increase the outstanding principal amount thereof at the time of suchrefinancing, refunding, renewal, extension, or replacement;

 

(b)                                 Indebtednessto the Borrower or any other Subsidiary;

 

(c)                                  Indebtedness assumed inconnection with the acquisition of an asset or Indebtedness of a Person, ineither case, existing at the time such asset or Person is acquired by, ormerged or consolidated with or into, any Subsidiary (and renewals, extensions,amendments, and modifications of such Indebtedness satisfying the requirements of ***clause (a)*** preceding), *so long as*(i)such Indebtedness wasnot incurred in contemplation of such acquisition, merger, or consolidation,(ii) no Event of Default or Default then exists or arises as a result thereof,and (iii) no other Subsidiary (other than the existing obligors at the timesuch Person or asset was acquired) shall have or incur any direct or indirectliability for such Indebtedness;

 

(d)                                 otherunsecured Indebtedness of any Subsidiary not otherwise permitted by this ***Section 7.03***, *so long as*no Default or Event of Default exists on the date any such Indebtedness iscreated, incurred, or assumed, or arises after giving effect to such incurrenceof Indebtedness;

 

(e)                                  obligations(contingent or otherwise) of any Subsidiary existing or arising under any SwapContract; *provided**that*(i) such obligations are (or were) entered into by such Subsidiary for thepurpose of directly mitigating risks associated with liabilities, commitments,investments, assets, or property held or reasonably anticipated by suchSubsidiary, or changes in the value of securities issued by such Subsidiary,and not for purposes of speculation or taking a “*market view*,” and (ii) suchSwap Contract does not contain a provision designating the “*First Method*”(as defined in the form of the Master Agreement) or any other provisiondirectly or indirectly exonerating the non-defaulting party from its obligationto make payments on outstanding transactions to the defaulting party after theoccurrence of an “*Early Termination Date*” (as defined in such Swap Contract);and

 

(f)                                    Indebtednessin respect of capital leases, Synthetic Lease Obligations, and purchase moneyobligations for fixed or capital assets, *so long as* any Liens securing suchIndebtedness satisfy the requirements of ***Section 7.01(i).***

 

Notwithstanding anythingin this ***Section 7.03***to the contrary, the aggregate principal amount of all Indebtedness of theSubsidiaries, without duplication, may not exceed, on any date of determination,20% of the book value of the consolidated assets of the Borrower and theSubsidiaries, determined as of, and with respect to, the date of the AuditedFinancial Statements; *provided that*on and after the date thatthe Current Financials for the fiscal year ending December 31, 2004 aredelivered pursuant to ***Section 6.01(a)***, such book value of theconsolidated assets of the Borrower and its Subsidiaries will be determined asof the date of, and with respect to, the Current Financials most recentlydelivered pursuant to ***Section 6.01(a)***.

 

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**7.04****                        Fundamental Changes.**

 

(a)                                  TheBorrower will not:

 

(i) consolidate with ormerge with or into any other Person, unless the Borrower or a PermittedSuccessor Corporation shall be the continuing or surviving corporation;

 

(ii) Dispose of (orpermit its Subsidiaries to Dispose of, including Dispositions by mergers ofSubsidiaries with non-wholly owned Subsidiaries or unrelated third parties),whether in one transaction or in any series of related transactions arising onor after the date of this Agreement, more than 50% of the book value of theconsolidated assets of the Borrower and the Subsidiaries; or

 

(iii) except as permittedby ***subsection (b)(ii)***below, consolidate, merge, Dispose of assets, or permit its Subsidiaries toDispose of assets in transactions otherwise permitted under this ***subsection (a)***if prior to and immediately after giving effect to such consolidation, merger,or Disposition, a Default or Event of Default shall exist.

 

(b)                                 Subjectto ***subsection (a)(iii)***above, the following transactions are permitted at all times withoutrestriction by this ***Section 7.04***:

 

(i)                                     (A)any Disposition by any Subsidiary of properties and assets to the Borrower orto any other wholly-owned Subsidiary or (B) the merger or consolidation of anySubsidiary into either the Borrower or any other wholly-owned Subsidiary; and

 

(ii)                                  anyDisposition of (A) obsolete or worn-out property or real property no longerused or useful in the business of the Borrower or its Subsidiaries, (B)delinquent accounts receivable in the ordinary course of business for purposesof collection, and (C) inventory in the ordinary course of business.

 

(c)                                  Forpurposes of ***subsection (a)(ii)***,the book value of the consolidated assets of the Borrower and its Subsidiarieswill be determined as of, and with respect to, the date of the AuditedFinancial Statements; *provided that*on and after the date thatthe Current Financials for the fiscal year ending December 31, 2004 aredelivered pursuant to ***Section 6.01(a)***, such book value of theconsolidated assets of the Borrower and its Subsidiaries will be determined asof the date of, and with respect to, the Current Financials most recentlydelivered pursuant to ***Section 6.01(a)***.

 

**7.05****                        Change in Nature of Business. **The Borrower shall not, nor shall itpermit any Subsidiary to, directly or indirectly, engage in any material lineof business substantially different from those lines of business conducted bythe Borrower and its Subsidiaries on the date hereof.

 

**7.06****                        Transactions with Affiliates. **The Borrower shall not, nor shall itpermit any Subsidiary to, directly or indirectly, enter into any transaction orseries of transactions during any fiscal year for which the aggregate amountexceeds $60,000 with any Affiliate of the Borrower or any Subsidiary, whetheror not in the ordinary course of business, other than on commerciallyreasonable terms.

 

**7.07****                        Burdensome Agreements. **The Borrower shall not, nor shall it permitany Subsidiary to, directly or indirectly, enter into any ContractualObligation (other than this Agreement) that:

 

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(a)                                  restrictsor limits any Subsidiary from:

 

(i)                                     themaking of dividends or distributions (whether in cash, securities, or otherproperty) payable to the Borrower or any Subsidiary; or

 

(ii)                                  therepaying of loans or advances made by the Borrower or any Subsidiary to theBorrower or any other Subsidiary, as the case may be, or the transferring ofassets from any Subsidiary to the Borrower or any Subsidiary, except (x)restrictions and limitations imposed by law, (y) customary restrictions andlimitations contained in agreements relating to the sale of a Subsidiary or itsassets that is permitted hereunder, and (z) other restrictions and limitationsthat could not reasonably be expected to impair the Borrower’s ability to repaythe Obligations when due; or

 

(b)                                 limitsthe ability of any Subsidiary to create, incur, assume, or suffer to existLiens on the property of any such Subsidiary or requires the grant of a Lien tosecure an obligation of such Person if a Lien is granted to secure anobligation of another Person.

 

**7.08****                        Use ofProceeds. **The Borrower shall notpermit any part of the proceeds of any Credit Extension to be used, directly orindirectly, in any manner that might cause the Credit Extension or theapplication of such proceeds to violate *Regulations T*, *U*, or *X* or any other regulation ofthe Board or to violate the *Securities Act of 1933*.

 

**7.09****                        Total Debt to Capitalization Ratio. **The Borrower shall not permit the ratioof Total Debt to Capitalization, at the end of each fiscal quarter of theBorrower, to be greater than or equal to .65 to 1.00.

 

**ARTICLE VIII****.****EVENTS OFDEFAULT AND REMEDIES**

 

**8.01****                        Events of Default**.

 

Any of the followingshall constitute an Event of Default:

 

(a)                                  Non-Payment.  The Borrower fails to pay (i) as of the duedate thereof, any amount of principal of any Loan or any L/C Borrowing; *providedthat*, to the extent such failure is caused by an error or omissionof an administrative or operational nature and funds are available on such duedate to enable Borrower to make such payment, then such failure shall notconstitute an Event of Default unless such failure continues for three BusinessDays after such due date, (ii) within three Business Days after the samebecomes due, any interest on any Loan or any L/C Borrowing, or (iii) withinthree Business Days after the later of (A) the due date thereof or (B) the datethe same is invoiced to the Borrower, any Facility Fee, any Utilization Fee,any Letter of Credit Fee, or any other fee or amount payable hereunder or underany other Loan Document; or

 

(b)                                 SpecificCovenants.  (i) The Borrower failsto perform or observe any term, covenant, or agreement contained in any of ***Sections 2.03(g), 6.03, 6.11, 7.04,******7.05, 7.08,***or***7.09***,or (ii) the Borrower fails to perform or observe any term, covenant, oragreement contained in any of ***Sections 6.02(e), 6.05,***or ***6.10*** and such failure continues for fiveBusiness Days, or (iii) the Borrower fails to perform or observe any term,covenant, or agreement contained in any of ***Sections 6.01***or***6.02(a), (b),***or***(c),***and such failure continues for five Business Daysafter the earlier of the date a Responsible Officer of the

 

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Borrower has knowledge ofsuch failure or written notice thereof to the Borrower from the AdministrativeAgent or any Lender;******or

 

(c)                                  OtherDefaults.  The Borrower fails toperform or observe any other covenant or agreement (not specified in ***subsection (a)***or ***(b)*** above) containedin any Loan Document on its part to be performed or observed and such failurecontinues for 30 days after the earlier of the date a Responsible Officer ofthe Borrower has knowledge of such failure or written notice thereof to theBorrower from the Administrative Agent or any Lender; or

 

(d)                                 Representationsand Warranties.  (i) Anyrepresentation, warranty, certification, or statement of fact made or deemedmade by the Borrower herein or in any other Loan Document that contains amateriality qualifier shall be incorrect or misleading when made or deemedmade, or (ii) any other representation, warranty, certification, or statementof fact made or deemed made by the Borrower herein or in any other LoanDocument that does not contain a materiality qualifier shall be incorrect ormisleading in any material respect when made or deemed made; or

 

(e)                                  Cross-Default.

 

(i)                                     Withrespect to any Indebtedness or Guaranty Obligation (other than the Indebtednesshereunder and Indebtedness under Swap Contracts), the Borrower or anySubsidiary:

 

(A)fails to make any payment when due (whether by scheduled maturity, requiredprepayment, acceleration, demand, or otherwise) beyond the applicable graceperiod with respect thereto (if any), and the principal amount (individually orin the aggregate) of such payments exceeds $250,000,000; or

 

(B)(1)  fails to observe or perform anyother agreement or condition relating to any such Indebtedness or GuarantyObligation or any instrument or agreement evidencing, securing, or relatingthereto, or any other event occurs, the effect of which default or other eventis to cause, or to permit the holder or holders of such Indebtedness or thebeneficiary or beneficiaries of such Guaranty Obligation (or a trustee onbehalf of such holder or holders or beneficiary or beneficiaries) to cause,with the giving of notice if required, (x) such Indebtedness to be demanded orto become due, to be repurchased, prepaid, defeased, or redeemed (automaticallyor otherwise), or an offer to repurchase, prepay, defease, or redeem suchIndebtedness to be made, in each case, prior to its stated maturity; or (y) anysuch Guaranty Obligation to become payable or cash collateral in respectthereof to be demanded; and (2) in any such event, the principal amount(individually or in the aggregate) of all such Indebtedness and GuarantyObligations described in ***clause (1)*** preceding exceeds $250,000,000; or

 

(ii)                                  (A)An “*EarlyTermination Date*” occurs under any Swap Contract resulting from (i)any event of default under such Swap Contract as to which the Borrower or anySubsidiary is the Defaulting Party (as defined in such Swap Contract) or (ii)any Termination Event (as defined under such Swap Contract) as to which theBorrower or any Subsidiary is an Affected Party (as defined under such SwapContract), and (B) in either event, the Swap Termination Value owed by theBorrower or any Subsidiary as a result thereof remains unpaid beyond theapplicable grace period thereunder, and the Swap Termination Value(individually or in the aggregate) under all such unpaid Swap Contracts exceeds$250,000,000; or

 

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(f)                                    InsolvencyProceedings, Etc.  The Borrower orany of its Subsidiaries institutes or by any act or failure to act indicatesits consent to, approval of, or acquiescence in any proceeding under any DebtorRelief Law, or makes an assignment for the benefit of creditors, or applies foror consents to the appointment of any receiver, trustee, custodian,conservator, liquidator, rehabilitator, or similar officer for it or for all orany material part of its property, or any receiver, trustee, custodian,conservator, liquidator, rehabilitator, or similar officer is appointed withoutthe application or consent of such Person and the appointment continuesundischarged or unstayed for 60 calendar days, or any proceeding under anyDebtor Relief Law relating to any such Person or to all or any material part ofits property is instituted without the consent of such Person and continuesundismissed or unstayed for 60 calendar days, or an order for relief is enteredin any such proceeding; or

 

(g)                                 Inabilityto Pay Debts; Attachment.  (i) TheBorrower or any Subsidiary becomes unable or admits in writing its inability orfails generally to pay its debts as they become due, or (ii) any writ orwarrant of attachment or execution or similar process is issued or leviedagainst property of any such Person having an aggregate book value in excess of$250,000,000 and is not released, vacated, or fully bonded within 30 days afterits issue or levy; or

 

(h)                                 Judgments.  There is entered against the Borrower or anySubsidiary (i) a final judgment or order for the payment of money in anindividual amount exceeding $250,000,000, or, when aggregated with all otherfinal judgments or orders for the payment of money, in an amount exceeding$350,000,000 (to the extent not covered by independent third-party insurance asto which the insurer does not dispute coverage), or (ii) any non-monetary finaljudgment that has, or would reasonably be expected to have, a Material AdverseEffect and, in the case of either ***clause (i)*** or ***clause (ii)***, (A) enforcement proceedings are commencedby any creditor upon such judgment or order, or (B) there is a period of 30consecutive days during which a stay of enforcement of such judgment, by reasonof a pending appeal or otherwise, is not in effect; or

 

(i)                                     ERISA.  The occurrence of (i) either (A) an ERISAEvent with respect to a Pension Plan or Multiemployer Plan which has resultedor would reasonably be expected to result in liability of the Borrower underTitle IV of ERISA to the Pension Plan, Multiemployer Plan, or the PBGC, or (B)the failure of the Borrower or any ERISA Affiliate to pay when due, after theexpiration of any applicable grace period, any installment payment with respectto its withdrawal liability under *Section 4201*of**ERISA under a MultiemployerPlan, and (ii) the liabilities arising under, or which reasonably would beexpected to arise under, ***clause (i)*****preceding, individually or in theaggregate, exceed $250,000,000 or would be reasonably be expected to have aMaterial Adverse Effect; or

 

(j)                                     Invalidityof Loan Documents.  (i) ThisAgreement, any Note, any Letter of Credit Application, the JPMorgan Fee Letter,or the Bank of America Fee Letter at any time after its execution and deliveryand as a result of any act or omission of the Borrower (other than with theagreement of all the Lenders (or Bank of America and BAS, in the case of theBank of America Fee Letter, and JPMorgan and JPMCB, in the case of the JPMorganFee Letter) or upon satisfaction in full of all the Obligations), ceases to bein full force and effect and such failure continues for 30 days after writtennotice thereof from Administrative Agent to the Borrower, or (ii) the Borroweror any other Person contests in any manner the validity or enforceability ofthis Agreement, any Note, any Letter of Credit Application, the JPMorgan FeeLetter, or the Bank of America Fee Letter, or (iii) the Borrower denies that ithas any further liability or obligation under this Agreement, any Note, anyLetter of Credit Application, the JPMorgan Fee Letter, or the Bank of AmericaFee Letter, or purports to revoke, terminate, or rescind this Agreement, anyNote, any Letter of Credit Application, the JPMorgan Fee Letter, or the Bank ofAmerica Fee Letter.

 

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**8.02****                        RemediesUpon Event of Default. **If any Eventof Default occurs and is continuing, the Administrative Agent shall, at therequest of, or may, with the consent of, the Required Lenders, take any of thefollowing actions:

 

(a)                                  declarethe commitment of each Lender to make Loans and the obligation of the L/CIssuer to make L/C Credit Extensions to be terminated, whereupon suchcommitments and obligation shall be terminated;

 

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

 

(c)                                  requirethat the Borrower Cash Collateralize that portion of the L/C Obligationscomprised of the aggregate undrawn amount of outstanding Letters of Credit; and

 

(d)                                 exerciseon behalf of itself and the Lenders all rights and remedies available to it andthe Lenders under the Loan Documents or applicable law;

 

*provided that*, upon the occurrence of anyevent specified in ***subsection (f)***of ***Section 8.01***,the obligation of each Lender to make Loans and the obligation of the L/CIssuer to make L/C Credit Extensions shall automatically terminate, the unpaidprincipal amount of all outstanding Loans and all interest and other amounts asaforesaid shall automatically become due and payable, and the obligation of theBorrower to Cash Collateralize the L/C Obligations as aforesaid shallautomatically become effective, in each case without further act of theAdministrative Agent or any Lender.

 

**8.03****                        Applicationof Funds. **After exercise ofremedies provided for in ***Section 8.02*** (or after the Loans have automaticallybecome immediately due and payable and the Borrower has automatically beenrequired to Cash Collateralize the L/C Obligations as set forth in the provisoto ***Section 8.02***),any amounts received on account of the Obligations shall be applied by theAdministrative Agent in the following order:

 

*First*, topayment of that portion of the Obligations constituting the ratable share ofthe fees, indemnities, expenses, and other amounts (including all attorneys’fees and expenses and amounts payable under ***Article III***) payable to each of theAdministrative Agent or the Syndication Agent in its capacity as such;

 

*Second*, topayment of that portion of the Obligations constituting fees, indemnities, andother amounts (other than principal and interest) payable to the Lenders(including all attorneys’ fees and expenses and amounts payable under ***Article III***),ratably among them in proportion to the amounts described in this ***clause****Second*payable to them;

 

*Third*, topayment of that portion of the Obligations constituting accrued and unpaidinterest on the Loans and L/C Borrowings, ratably among the Lenders inproportion to the respective amounts described in this ***clause****Third* payable to them;

 

*Fourth*, topayment of that portion of the Obligations constituting unpaid principal of theLoans and L/C Borrowings, ratably among the Lenders in proportion to therespective amounts described in this ***clause****Fourth* held by them;

 

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*Fifth*, to theAdministrative Agent for the account of the L/C Issuer and the Lenders, to CashCollateralize that portion of L/C Obligations comprised of the aggregateundrawn amount of Letters of Credit;

 

*Sixth*, topayment of any remaining Obligations, ratably among the holders of suchremaining Obligations in proportion to the respective amounts described in this***clause****Sixth*held by them; and

 

*Last*, thebalance, if any, after all of the Obligations have been indefeasibly paid infull, to the Borrower or as otherwise required by Law.

 

Subject to ***Section 2.03(c)***,amounts used to Cash Collateralize the aggregate undrawn amount of Letters ofCredit pursuant to ***clause****Fifth*above shall be applied to satisfy drawings under such Letters of Credit as theyoccur.  If any amount remains on depositas cash collateral after all Letters of Credit have either been fully drawn orexpired, such remaining amount shall be applied to the other Obligations, ifany, in the order set forth above.

 

**ARTICLE IX****.****AGREEMENTAMONG LENDERS**

 

**9.01****                        Appointmentand Authorization of Administrative Agent.**

 

(a)                                  EachLender hereby irrevocably (subject to ***Section 9.09***) appoints, designates, and authorizesthe Administrative Agent to take such action on its behalf under the provisionsof this Agreement and each other Loan Document and to exercise such powers andperform such duties as are expressly delegated to it by the terms of thisAgreement or any other Loan Document, together with such powers as arereasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere hereinor in any other Loan Document, the Administrative Agent shall not have anyduties or responsibilities, except those expressly set forth herein, nor shallthe Administrative Agent have or be deemed to have any fiduciary relationship withany Lender or participant, and no implied covenants, functions,responsibilities, duties, obligations, or liabilities shall be read into thisAgreement or any other Loan Document or otherwise exist against theAdministrative Agent.  Without limitingthe generality of the foregoing sentence, the use of the term “*agent*”herein and in the other Loan Documents with reference to the AdministrativeAgent is not intended to connote any fiduciary or other implied (or express)obligations arising under agency doctrine of any applicable Law.  Instead, such term is used merely as amatter of market custom, and is intended to create or reflect only anadministrative relationship between independent contracting parties.

 

(b)                                 TheL/C Issuer shall act on behalf of the Lenders with respect to any Letters ofCredit issued by it and the documents associated therewith, and the L/C Issuershall have all of the benefits and immunities (i) provided to theAdministrative Agent in this ***Article IX*** with respect to any acts taken oromissions suffered by the L/C Issuer in connection with Letters of Creditissued by it or proposed to be issued by it and the Letter of CreditApplications pertaining to such Letters of Credit as fully as if the term “*AdministrativeAgent*” as used in this ***Article IX*** and in the definition of “*Agent-RelatedPerson*” included the L/C Issuer with respect to such acts oromissions, and (ii) as additionally provided herein with respect to the L/CIssuer.

 

**9.02****                        Delegationof Duties. **The Administrative Agentmay execute any of its duties under this Agreement or any other Loan Documentby or through agents, employees, or attorneys-in-fact and shall be entitled toadvice of counsel and other consultants or experts concerning all matterspertaining to

 

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such duties.  The Administrative Agent shall not beresponsible for the negligence or misconduct of any agent or attorney-in-factthat it selects in the absence of gross negligence or willful misconduct.

 

**9.03****                        Liabilityof Agent-Related Persons. **NoAgent-Related Person shall (a) be liable for any action taken or omitted to betaken by any of them under or in connection with this Agreement or any otherLoan Document or the transactions contemplated hereby (except for its own grossnegligence or willful misconduct in connection with its duties expressly setforth herein), or (b) be responsible in any manner to any Lender or participantfor any recital, statement, representation, or warranty made by the Borrower orany officer thereof, contained herein or in any other Loan Document, or in anycertificate, report, statement, or other document referred to or provided forin, or received by the Administrative Agent under or in connection with, thisAgreement or any other Loan Document, or the validity, effectiveness,genuineness, enforceability, or sufficiency of this Agreement or any other LoanDocument, or for any failure of the Borrower or any other party to any LoanDocument to perform its obligations hereunder or thereunder.  No Agent-Related Person shall be under anyobligation to any Lender or participant to ascertain or to inquire as to theobservance or performance of any of the agreements contained in, or conditionsof, this Agreement or any other Loan Document, or to inspect the properties,books or records of the Borrower or any Affiliate thereof.

 

**9.04****                        Relianceby Administrative Agent.**

 

(a)                                  TheAdministrative Agent shall be entitled to rely, and shall be fully protected inrelying, upon any writing, communication, signature, resolution,representation, notice, consent, certificate, affidavit, letter, telegram,facsimile, telex or telephone message, statement, electronic mail message, orother document or conversation believed by it to be genuine and correct and to havebeen signed, sent, or made by the proper Person or Persons, and upon advice andstatements of legal counsel (including counsel to the Borrower), independentaccountants and other experts selected by the Administrative Agent.  The Administrative Agent shall be fullyjustified in failing or refusing to take any action under any Loan Documentunless it shall first receive such advice or concurrence of the RequiredLenders as it deems appropriate and, if it so requests, it shall first beindemnified to its satisfaction by the Lenders against any and all liabilityand expense which may be incurred by it by reason of taking or continuing totake any such action.  TheAdministrative Agent shall in all cases be fully protected in acting, or inrefraining from acting, under this Agreement or any other Loan Document inaccordance with a request or consent of the Required Lenders (or such greaternumber of Lenders as may be expressly required hereby in any instance), ifrequired hereunder, and such request and any action taken or failure to actpursuant thereto shall be binding upon all the Lenders.

 

(b)                                 Indetermining compliance with any condition hereunder to the making of a Loan, orthe issuance of a Letter of Credit, that by its terms must be fulfilled to thesatisfaction of a Lender or the L/C Issuer, the Administrative Agent maypresume that such condition is satisfactory to such Lender or the L/C Issuerunless the Administrative Agent shall have received notice to the contrary fromsuch Lender or the L/C Issuer prior to the making of such Loan or the issuanceof such Letter of Credit.

 

**9.05****                        Notice ofDefault. **The Administrative Agentshall not be deemed to have knowledge or notice of the occurrence of anyDefault or Event of Default, unless the Administrative Agent shall havereceived written notice from a Lender or the Borrower referring to thisAgreement, describing such Default or Event of Default and stating that suchnotice is a “*notice of default*.” The Administrative Agent will notify the Lenders of its receipt of anysuch notice.  The Administrative Agentshall take such action with respect to such Default or Event of Default as maybe directed by the Required Lenders in accordance with ***Article VIII***; *provided that*, unless anduntil the Administrative Agent has received any such direction, theAdministrative Agent may (but shall not be obligated to) take such action, orrefrain

 

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from taking such action,with respect to such Default or Event of Default as it shall deem advisable orin the best interest of the Lenders.

 

**9.06****                        CreditDecision; Disclosure of Information by Administrative Agent and SyndicationAgent. **Each Lender acknowledgesthat no Agent-Related Person has made any representation or warranty to it, andthat no act by the Administrative Agent or the Syndication Agent hereaftertaken, including any consent to and acceptance of any assignment or review ofthe affairs of the Borrower or any Affiliate thereof, shall be deemed toconstitute any representation or warranty by any Agent-Related Person to anyLender as to any matter, including whether Agent-Related Persons have disclosedmaterial information in their possession. Each Lender represents to the Administrative Agent and the SyndicationAgent that it has, independently and without reliance upon any Agent-RelatedPerson and based on such documents and information as it has deemedappropriate, made its own appraisal of and investigation into the business,prospects, operations, property, financial, and other condition andcreditworthiness of the Borrower and its respective Subsidiaries, and allapplicable bank or other regulatory Laws relating to the transactionscontemplated hereby, and made its own decision to enter into this Agreement andto extend credit to the Borrower hereunder. Each Lender also represents that it will, independently and withoutreliance upon any Agent-Related Person and based on such documents andinformation as it shall deem appropriate at the time, continue to make its owncredit analysis, appraisals, and decisions in taking or not taking action underthis Agreement and the other Loan Documents, and to make such investigations asit deems necessary to inform itself as to the business, prospects, operations,property, financial, and other condition and creditworthiness of the Borrower.Except for notices, reports, and other documents expressly required to befurnished to the Lenders by the Administrative Agent herein, neither theAdministrative Agent nor the Syndication Agent, as applicable, shall have anyduty or responsibility to provide any Lender with any credit or otherinformation concerning the business, prospects, operations, property,financial, and other condition or creditworthiness of the Borrower or any ofits respective Affiliates which may come into the possession of anyAgent-Related Person.

 

**9.07****                        Indemnificationof Agent-Related Persons. **Whetheror not the transactions contemplated hereby are consummated, the Lenders shallindemnify upon demand each Agent-Related Person (to the extent not reimbursedby or on behalf of the Borrower and without limiting its obligation to do so),in accordance with their Pro Rata Shares, and hold harmless each Agent-RelatedPerson from and against any and all Indemnified Liabilities incurred by it; *providedthat* no Lender shall be liable for the payment to any Agent-RelatedPerson of any portion of such Indemnified Liabilities to the extent determinedin a final, nonappealable judgment by a court of competent jurisdiction to haveresulted from such Agent-Related Person’s own gross negligence or willfulmisconduct or from such Agent-Related Person’s breach of this Agreement; *providedthat*no action taken in accordance with the directions of theRequired Lenders (or such greater number of Lenders as may be expresslyrequired hereby in any instance) shall be deemed to constitute gross negligenceor willful misconduct for purposes of this ***Section 9.07***. Without limitation of the foregoing, each Lender shall reimburse theAdministrative Agent upon demand for its Pro Rata Share of any costs orout-of-pocket expenses (including attorneys’ fees) incurred by theAdministrative Agent in connection with the preparation, execution, delivery,administration, modification, amendment, or enforcement (whether throughnegotiations, legal proceedings or otherwise) of, or legal advice in respect ofrights or responsibilities under, this Agreement, any other Loan Document, orany document contemplated by or referred to herein, to the extent that the AdministrativeAgent is not reimbursed for such expenses by or on behalf of the Borrower.  The undertaking in this ***Section 9.07*** shall survive terminationof the Commitments, the payment of all Obligations hereunder, and theresignation or replacement of the Administrative Agent or the SyndicationAgent.

 

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**9.08****                        AdministrativeAgent in its Individual Capacity. **Bankof America and its Affiliates may make loans to, issue letters of credit forthe account of, accept deposits from, acquire equity interests in and generallyengage in any kind of banking, trust, financial advisory, underwriting, orother business with the Borrower and its respective Affiliates as though Bankof America were not the Administrative Agent or the L/C Issuer hereunder andwithout notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, Bank ofAmerica or its Affiliates may receive information regarding the Borrower or itsAffiliates (including information that may be subject to confidentialityobligations in favor of the Borrower or such Affiliate) and acknowledge thatthe Administrative Agent shall be under no obligation to provide suchinformation to them.  With respect toits Loans, Bank of America shall have the same rights and powers under thisAgreement as any other Lender and may exercise such rights and powers as thoughit were not the Administrative Agent or the L/C Issuer, and the terms “*Lender*”and “*Lenders*”include Bank of America in its individual capacity.

 

**9.09****                        SuccessorAdministrative Agent. **TheAdministrative Agent may resign as Administrative Agent upon 30 days’ notice tothe Lenders; provided that any such resignation by Bank of America shall alsoconstitute its resignation as L/C Issuer. If the Administrative Agent resigns under this Agreement, the RequiredLenders shall appoint from among the Lenders a successor administrative agentfor the Lenders which successor administrative agent shall be consented to bythe Borrower at all times other than during the existence of an Event ofDefault (which consent of the Borrower shall not be unreasonably withheld ordelayed).  If no successoradministrative agent is appointed prior to the effective date of theresignation of the Administrative Agent, the Administrative Agent may appoint,after consulting with the Lenders and the Borrower, a successor administrativeagent from among the Lenders.  Upon theacceptance of its appointment as successor administrative agent hereunder, suchPerson acting as such successor administrative agent shall succeed to all therights, powers, and duties of the retiring Administrative Agent and L/C Issuerand the respective terms “*Administrative Agent*” and “*L/C Issuer*”shall mean such successor administrative agent and Letter of Credit issuer, andthe retiring Administrative Agent’s appointment, powers and duties asAdministrative Agent shall be terminated and the retiring L/C Issuer’s rights,powers, and duties as such shall be terminated, without any other or furtheract or deed on the part of such retiring L/C Issuer or any other Lender, otherthan the right of the retiring L/C Issuer to require the successor L/C Issuerto issue letters of credit in substitution for the Letters of Credit, if any,outstanding at the time of such succession or to make other arrangementssatisfactory to the retiring L/C Issuer to effectively assume the obligationsof the retiring L/C Issuer with respect to such Letters of Credit.  After any retiring Administrative Agent’sresignation hereunder as Administrative Agent, the provisions of this ***Article IX*** and ***Sections 10.04*** and ***10.05*** shall inure toits benefit as to any actions taken or omitted to be taken by it while it wasAdministrative Agent under this Agreement. If no successor administrative agent has accepted appointment asAdministrative Agent by the date which is 30 days following a retiringAdministrative Agent’s notice of resignation, the retiring AdministrativeAgent’s resignation shall nevertheless thereupon become effective and theLenders shall perform all of the duties of the Administrative Agent hereunderuntil such time, if any, as the Required Lenders appoint a successor agent asprovided for above.

 

**9.10****                        AdministrativeAgent May File Proofs of Claim. **Incase of the pendency of any receivership, insolvency, liquidation, bankruptcy,reorganization, arrangement, adjustment, composition, or other judicialproceeding relative to the Borrower, the Administrative Agent (irrespective ofwhether the principal of any Loan or L/C Obligation shall then be due andpayable as herein expressed or by declaration or otherwise and irrespective ofwhether the Administrative Agent shall have made any demand on the Borrower)shall be entitled and empowered, by intervention in such proceeding orotherwise:

 

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

 

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

 

and any custodian,receiver, assignee, trustee, liquidator, sequestrator, or other similarofficial in any such judicial proceeding is hereby authorized by each Lender tomake such payments to the Administrative Agent and, in the event that theAdministrative Agent shall consent to the making of such payments directly tothe Lenders, to pay to the Administrative Agent any amount due for thereasonable compensation, expenses, disbursements, and advances of theAdministrative Agent and its agents and counsel, and any other amounts due theAdministrative Agent under ***Sections 2.09*** and ***10.04***.

 

Nothing contained hereinshall be deemed to authorize the Administrative Agent to authorize or consentto or accept or adopt, on behalf of any Lender, any plan of reorganization,arrangement, adjustment, or composition affecting the Obligations or the rightsof any Lender or to authorize the Administrative Agent to vote in respect ofthe claim of any Lender in any such proceeding.

 

**9.11****                        OtherAgents; Joint Book Managers, Joint Lead Arrangers. **None of the Lenders or other Persons identified on the facingpage or signature pages of this Agreement as a “*syndication agent*,” “*documentationagent*,” “*joint book manager,*” or “*joint**leadarranger*” shall have any obligation, liability, responsibility, orduty under this Agreement other than, in case of such Lenders, those applicableto all Lenders as such.  Withoutlimiting the foregoing, none of the Lenders or other Persons so identifiedshall have or be deemed to have any fiduciary relationship with anyLender.  Each Lender acknowledges thatit has not relied, and will not rely, on any of the Lenders or other Persons soidentified in deciding to enter into this Agreement or in taking or not takingaction hereunder.

 

**ARTICLE X****.MISCELLANEOUS**

 

**10.01****                 Amendments,Etc. **No amendment or waiver of anyprovision of this Agreement or any other Loan Document, and no consent to anydeparture by the Borrower therefrom, shall be effective unless in writingsigned by the Required Lenders and the Borrower, as the case may be, andacknowledged by the Administrative Agent, and each such waiver or consent shallbe effective only in the specific instance and for the specific purpose forwhich given; *provided that* no such amendment, waiver, or consent shall:

 

(a)                                  waiveany condition set forth in ***Section 4.01*** (other than ***Section 4.01(c)***) without the writtenconsent of each Lender;

 

(b)                                 extendor increase the Commitment of any Lender (or reinstate any Commitmentterminated pursuant to ***Section 8.02***), without the written consent of suchLender;

 

(c)                                  postponeany date fixed by this Agreement or any other Loan Document for any payment ormandatory prepayment of principal, interest, fees, or other amounts due to theLenders (or any of

 

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them) hereunder or underany other Loan Document without the written consent of each Lender directlyaffected thereby;

 

(d)                                 reducethe principal of, or the rate of interest specified herein, on any Loan or L/CObligation, or (subject to ***clause (iii)*** of the proviso below) any fees or otheramounts payable hereunder or under any other Loan Document without the writtenconsent of each Lender directly affected thereby; *provided**that*only the consent of the Required Lenders shall be necessary to amend thedefinition of “*Default Rate*” or to waive any obligation of the Borrower topay interest or fees at the Default Rate;

 

(e)                                  changeany provision of this ***Section 10.01,*** the definition of “*RequiredLenders,*” or any other provision hereof specifying the number orpercentage of Lenders required to amend, waive, or otherwise modify any rightshereunder or make any determination or grant any consent hereunder, in each casewithout the written consent of each Lender; or

 

(f)                                    change***Section 2.13*** or ***Section 8.03*** ina manner that would alter the ratable sharing of payments required hereunderwithout the written consent of each Lender.

 

and, *provided,**further*,*that*(i) no amendment, waiver, or consent shall, unless in writing and signed by theAdministrative Agent in addition to the Required Lenders or each affectedLender, as the case may be, affect the rights or duties of the AdministrativeAgent under this Agreement or any other Loan Document; (ii) no amendment,waiver, or consent shall, unless in writing and signed by the L/C Issuer inaddition to the Lenders required above, affect the rights or duties of the L/CIssuer under this Agreement or any Letter of Credit Application relating to anyLetter of Credit issued or to be issued by it; and (iii) the JPMorgan FeeLetter and the Bank of America Fee Letter may be amended, or rights orprivileges thereunder waived, in a writing executed only by the partiesthereto.  Notwithstanding anything tothe contrary herein, no Defaulting Lender shall have any right to approve ordisapprove any amendment, waiver, or consent hereunder, except that theCommitment of such Defaulting Lender may not be increased or extended withoutthe consent of such Defaulting Lender.

 

**10.02****                 Notices and OtherCommunications; Facsimile Copies.**

 

(a)                                  General.  Unless otherwise expressly provided herein,all notices and other communications provided for hereunder shall be in writing(including by facsimile transmission). All such written notices shall be mailed, faxed, or delivered to theapplicable address, facsimile number or (subject to ***subsection (c)*** below) electronic mailaddress, and all notices and other communications expressly permitted hereunderto be given by telephone shall be made to the applicable telephone numbers, asfollows:

 

(i)                                     ifto the Borrower, the Administrative Agent, or the L/C Issuer, to the address,facsimile number, electronic mail address, or telephone number specified forsuch Person on ***Schedule 10.02***or to such other address, facsimile number, electronic mail address, ortelephone number as shall be designated by such party in a notice to the otherparties; and

 

(ii)                                  ifto any other Lender, to the address, facsimile number, electronic mail address,or telephone number specified in the Register and obtained from itsAdministrative Questionnaire or to such other address, facsimile number,electronic mail address, or telephone number as shall be designated by suchparty in a notice to the Borrower, the Administrative Agent, and the L/CIssuer.

 

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All such notices andother communications shall be deemed to be given or made upon the earlier tooccur of (i) actual receipt by the relevant party hereto and (ii) (A) ifdelivered by hand or by courier, when signed for by or on behalf of therelevant party hereto; (B) if delivered by mail, four Business Days afterdeposit in the mails, postage prepaid; (C) if delivered by facsimile, when sentand receipt has been confirmed by telephone; and (D) if delivered by electronicmail (which form of delivery is subject to the provisions of ***subsection (c)***below), when delivered; *provided**that,* notices and othercommunications to the Administrative Agent and the L/C Issuer pursuant to ***Article II*** shallnot be effective until actually received by such Person.  In no event shall a voicemail message beeffective as a notice, communication, or confirmation hereunder.

 

(b)                                 Effectivenessof Facsimile Documents and Signatures. Loan Documents may be transmitted and/or signed by facsimile.  The effectiveness of any such documents andsignatures shall, subject to applicable Law, have the same force and effect asmanually-signed originals and shall be binding on the Borrower, theAdministrative Agent, the L/C Issuer, and the Lenders.  The Administrative Agent may also requirethat any such documents and signatures be confirmed by a manually-signedoriginal thereof; *provided**that* the failure to request or deliver thesame shall not limit the effectiveness of any facsimile document or signature.

 

(c)                                  LimitedUse of Electronic Mail.  Electronicmail and Internet and intranet websites may be used only to distribute routinecommunications (such as Financial Statements, information delivered pursuant to***Sections 6.02(c)***or***(d),*** and otherinformation), to distribute Loan Documents for review and execution by theparties thereto, and to distribute copies of executed counterparts of LoanDocuments, and may not be used for any other purpose.

 

(d)                                 Relianceby Administrative Agent and Lenders. The Administrative Agent, the L/C Issuer, and each Lender shall beentitled to rely upon and act upon any notice, statement, certificate, order,or other document or any telephone message (including telephonic Loan Notices)believed in good faith by it to be genuine and correct and to have been signed,sent, or made by or on behalf of the Borrower, even if (i) such telephonicnotices were not followed by any other form of notice specified herein, or (ii)the terms thereof, as understood by the recipient, varied from any confirmationthereof.  The Borrower shall indemnifyeach Agent-Related Person, the L/C Issuer, and each Lender from all losses,costs, expenses, and liabilities resulting from the reliance by such Person oneach notice believed in good faith by such Agent-Related Person, the L/CIssuer, or such Lender to have been given by or on behalf of the Borrower.  All telephonic notices to and other communicationswith the Administrative Agent or the L/C Issuer may be recorded by theAdministrative Agent or the L/C Issuer, and each of the parties hereto herebyconsents to such recording.

 

**10.03****                 No Waiver;Cumulative Remedies. **No failure byany Lender, the L/C Issuer, or the Administrative Agent to exercise, and nodelay by any such Person in exercising, any right, remedy, power or privilegehereunder shall operate as a waiver thereof, nor shall any single or partialexercise of any right, remedy, power, or privilege hereunder preclude any otheror further exercise thereof or the exercise of any other right, remedy, poweror privilege.  The rights, remedies,powers, and privileges herein or therein provided are cumulative and notexclusive of any rights, remedies, powers, and privileges provided by law.

 

**10.04****                 Attorneys’ Fees,Expenses and Taxes. **The Borroweragrees (a) to pay or reimburse the Administrative Agent for all reasonablecosts and expenses incurred in connection with the development, preparation,negotiation, and execution of this Agreement and the other Loan Documents andany amendment, waiver, consent, or other modification of the provisions hereofand thereof (whether or not the transactions contemplated hereby or thereby areconsummated), and the consummation and

 

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administration of thetransactions contemplated hereby and thereby, including all reasonableattorneys’ fees, and (b) to pay or reimburse the Administrative Agent, the L/CIssuer, and each Lender for all reasonable costs and expenses incurred inconnection with the enforcement, attempted enforcement, or preservation of anyrights or remedies under this Agreement or the other Loan Documents (includingall such costs and expenses incurred during any “*workout*” or restructuring inrespect of the Obligations and during any legal proceeding, including anyproceeding under any Debtor Relief Law), including all reasonable attorneys’fees.  The foregoing costs and expensesshall include all search, filing, recording, title insurance, and appraisalcharges and fees and taxes related thereto, and other out-of-pocket expensesincurred by the Administrative Agent and the cost of independent publicaccountants and other outside experts retained by the Administrative Agent,counsel to the Administrative Agent, the L/C Issuer, or any Lender.  All amounts due under this ***Section 10.04***shall be payable within 30 Business Days after demand therefor.  The agreements in this ***Section 10.04*** shall survive thetermination of the Total Commitment and repayment of all the other Obligations.

 

**10.05****                 Indemnificationby the Borrower. **Whether or not thetransactions contemplated hereby are consummated, the Borrower shall indemnifyand hold harmless each Agent-Related Person, the L/C Issuer, each Lender, andtheir respective Affiliates, directors, officers, employees, counsel, agents,attorneys, and attorneys-in-fact (collectively the “***Indemnitees***”) from and against any and allliabilities, obligations, losses, damages, penalties, claims, demands, actions,judgments, suits, costs, expenses, and disbursements (including reasonableattorneys’ fees and expenses) of any kind or nature whatsoever which may at anytime be imposed on, incurred by or asserted against any such Indemnitee in anyway relating to or arising out of or in connection with (a) the execution,delivery, enforcement, performance, or administration of any Loan Document orany other agreement, letter, or instrument delivered in connection with thetransactions contemplated thereby or the consummation of the transactionscontemplated thereby, (b) any Commitment, Loan or Letter of Credit or the useor proposed use of the proceeds therefrom (including any refusal by the L/CIssuer to honor a demand for payment under a Letter of Credit if the documentspresented in connection with such demand do not strictly comply with the termsof such Letter of Credit), or (c) any actual or alleged presence or release ofHazardous Materials on or from any property currently or formerly owned oroperated by the Borrowers or any Subsidiary, or any Environmental Liabilityrelated in any way to the Borrower or any Subsidiary, or (d) any claim,litigation, investigation, or proceeding relating to any of the foregoing,whether based on contract, tort, or any other theory (including anyinvestigation of, preparation for, or defense of any pending or threatenedclaim, investigation, litigation, or proceeding) and regardless of whether anyIndemnitee is a party thereto (all the foregoing, collectively, the “***Indemnified Liabilities***”),in all cases, whether or not caused by or arising, in whole or in part, out ofthe negligence of the Indemnitee; *provided**that,* such indemnity shallnot, as to any Indemnitee, be available to the extent that such liabilities,obligations, losses, damages, penalties, claims, demands, actions, judgments,suits, costs, expenses, or disbursements are determined by a court of competentjurisdiction by final and nonappealable judgment to have resulted from thegross negligence or willful misconduct of such Indemnitee, or from suchIndemnitee’s breach of this Agreement. No Indemnitee shall be liable for any damages arising from the use byothers of any information or other materials obtained through IntraLinks orother similar information transmission systems in connection with thisAgreement, nor shall any Indemnitee have any liability for any indirect orconsequential damages relating to this Agreement or any other Loan Document orarising out of its activities in connection herewith or therewith (whether beforeor after the Closing Date).  All amountsdue under this ***Section 10.05***shall be payable no later than ten Business Days after demand therefor. Theagreements in this ***Section 10.05***shall survive the resignation of the Administrative Agent or the L/C Issuer,the replacement of any Lender, the termination of the Total Commitment, and therepayment, satisfaction or discharge of all the other Obligations. AnIndemnitee will promptly notify the Borrower upon receipt of written notice ofany claim, action, suit, or proceeding made, commenced, or threatened thatcould give rise to an Indemnified Liability; *provided that,* any

 

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failure by suchIndemnitee to give such notice shall not relieve the Borrower from its obligationsto indemnify the Indemnitee unless (and then solely to the extent) the Borroweris materially prejudiced thereby.

 

**10.06****                 Payments SetAside. **To the extent that theBorrower makes a payment to the Administrative Agent, the L/C Issuer or any Lender,or the Administrative Agent, the L/C Issuer or any Lender exercises its rightof set-off, and such payment or the proceeds of such set-off or any partthereof is subsequently invalidated, declared to be fraudulent or preferential,set aside or required (including pursuant to any settlement entered into by theAdministrative Agent, the L/C Issuer or such Lender in its discretion) to berepaid to a trustee, receiver or any other party, in connection with anyproceeding under any Debtor Relief Law or otherwise, then (a) to the extent ofsuch recovery, the obligation or part thereof originally intended to besatisfied shall be revived and continued in full force and effect as if suchpayment had not been made or such set-off had not occurred, and (b) each Lenderand the L/C Issuer severally agrees to pay to the Administrative Agent upondemand its applicable share (without duplication) of any amount so recoveredfrom or repaid by the Administrative Agent, plus interest thereon from the dateof such demand to the date such payment is made at a rate per annum equal tothe Federal Funds Rate from time to time in effect.  The obligations of the Lenders and the L/C Issuer under clause(b) of the preceding sentence shall survive the payment in full of theObligations and the termination of this Agreement.

 

**10.07****                 Successors andAssigns.**

 

(a)                                  Theprovisions of this Agreement shall be binding upon and inure to the benefit ofthe parties hereto and their respective successors and assigns permittedhereby, except that the Borrower may not assign or otherwise transfer any ofits rights or obligations hereunder without the prior written consent of eachLender and no Lender may assign or otherwise transfer any of its rights orobligations hereunder except (i) to an Eligible Assignee in accordance with theprovisions of ***subsection (b)***of this ***Section 10.07***,(ii) by way of participation in accordance with the provisions of ***subsection (d)***of this ***Section 10.07***,or (iii) by way of pledge or assignment of a security interest subject to therestrictions of ***subsection (f)***of this ***Section 10.07***(and any other attempted assignment or transfer by any party hereto shall benull and void).  Nothing in thisAgreement, expressed or implied, shall be construed to confer upon any Person(other than the parties hereto, their respective successors and assignspermitted hereby, Participants to the extent provided in ***subsection (d)*** of this ***Section 10.07***and, to the extent expressly contemplated hereby, the Indemnitees) any legal orequitable right, remedy, or claim under or by reason of this Agreement.

 

(b)                                 AnyLender may at any time assign to one or more Eligible Assignees all or aportion of its rights and obligations under this Agreement (including all or aportion of its Commitment and its Loans (including for purposes of this ***subsection (b)***,participations in L/C Obligations) at the time owing to it); *providedthat* (i) except in the case of an assignment of the entire remainingamount of the assigning Lender’s Commitment and the Loans at the time owing toit or in the case of an assignment to a Lender or a Lender Affiliate or anApproved Fund (as defined in ***subsection (h)*****of this ***Section 10.07***) with respect to a Lender,the aggregate amount of the Commitment (which for this purpose includes any Loansoutstanding thereunder) or principal outstanding balance of the Loans of theassigning Lender subject to each such assignment, determined as of the date theAssignment and Assumption with respect to such assignment is delivered to theAdministrative Agent or, if “Trade Date” is specified in the Assignment andAssumption, as of the Trade Date, shall not be less than $5,000,000, unlesseach of the Administrative Agent and the L/C Issuer and, so long as no Event ofDefault has occurred and is continuing, the Borrower otherwise consents (eachsuch consent not to be unreasonably withheld or delayed), (ii) each partialassignment shall be made as an assignment of a proportionate part of all the

 

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assigning Lender’s rightsand obligations under this Agreement with respect to the Loans or theCommitment assigned, and (iii) the parties to each assignment shall execute anddeliver to the Administrative Agent an Assignment and Assumption, together witha processing and recordation fee of $3,500. Subject to acceptance and recording thereof by the Administrative Agentpursuant to ***subsection (c)***of this ***Section 10.07***,from and after the effective date specified in each Assignment and Assumption,the Eligible Assignee thereunder shall be a party hereto and, to the extent ofthe interest assigned by such Assignment and Assumption, have the rights andobligations of a Lender under this Agreement, and the assigning Lenderthereunder shall, to the extent of the interest assigned by such Assignment andAssumption, be released from its obligations under this Agreement (and, in thecase of an Assignment and Assumption covering all of the assigning Lender’srights and obligations under this Agreement, such Lender shall cease to be aparty hereto but shall continue to be entitled to the benefits of ***Sections 3.01, 3.04, 3.05, 10.04,***and ***10.05***for claimsarising with respect to circumstances occurring prior to the assignment).  Upon request, the Borrower (at its expense)shall execute and deliver new or replacement Notes to the assigning Lender andthe assignee Lender.  Any assignment ortransfer by a Lender of rights or obligations under this Agreement that doesnot comply with this ***subsection (b)*** shall be treated for purposes of thisAgreement as a sale by such Lender of a participation in such rights andobligations in accordance with, and subject to, ***subsection (d)*** of this ***Section 10.07***.

 

(c)                                  TheAdministrative Agent, acting solely for this purpose as an agent of theBorrower, shall maintain at the Administrative Agent’s Office a copy of eachAssignment and Assumption delivered to it and a register for the recordation ofthe names and addresses of the Lenders, and the Commitments of, and principalamounts of the Loans and participations in L/C Obligations owing to, eachLender pursuant to the terms hereof from time to time (the “***Register***”).  The entries in the Register shall beconclusive, and the Borrower, the Administrative Agent and the Lenders maytreat each Person whose name is recorded in the Register pursuant to the termshereof as a Lender hereunder for all purposes of this Agreement,notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and anyLender, at any reasonable time and from time to time upon reasonable priornotice.  Administrative Agent shallprovide copies of the Register to the Borrower upon its reasonable request.

 

(d)                                 AnyLender at any time may, without the consent of, or notice to, the Borrower orthe Administrative Agent, sell participations to any Person (other than anatural person or the Borrower or any of the Borrower’s Affiliates orSubsidiaries) (each, a “***Participant***”) in all or a portion of such Lender’srights and/or obligations under this Agreement (including all or a portion ofits Commitment and/or the Loans (including such Lender’s participations in L/CObligations) at the time owing to it); *provided**that* (i) such Lender’sobligations under this Agreement shall remain unchanged, (ii) such Lender shallremain solely responsible to the other parties hereto for the performance ofsuch obligations and (iii) the Borrower, the Administrative Agent, and theother Lenders shall continue to deal solely and directly with such Lender inconnection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant towhich a Lender sells such a participation shall provide that such Lender shallretain the sole right to enforce this Agreement and to approve any amendment,modification, or waiver of any provision of this Agreement; *providedthat* such agreement or instrument may provide that such Lender willnot, without the consent of the Participant, agree to any amendment, waiver, orother modification that would (i) postpone any date upon which any payment ofmoney is to be paid to such Participant, or (ii) reduce the principal,interest, fees or other amounts payable to such Participant.  Subject to ***subsection (e)*** of this ***Section 10.07***,the Borrower agrees that each Participant shall be entitled to the benefits of ***Sections 3.01, 3.04***,and ***3.05*** to the sameextent as if it were a Lender and had acquired its interest by assignmentpursuant to ***subsection (b)***of this ***Section 10.07***.  To the extent permitted by law, eachParticipant also shall be entitled to the benefits of ***Section 10.09*** as though it were aLender; *providedthat* (i) such Participant agrees to be subject to ***Section 2.13*** asthough it were

 

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a Lender and (ii) theBorrower has given prior written consent to the sale of the participation tosuch Participant.

 

(e)                                  AParticipant shall not be entitled to receive any greater payment under ***Section 3.01*** or ***3.04*** than theapplicable Lender would have been entitled to receive with respect to theparticipation sold to such Participant, unless the sale of the participation tosuch Participant is made with the Borrower’s prior written consent.  A Participant that would be a Foreign Lenderif it were a Lender shall not be entitled to the benefits of ***Section 3.01***unless the Borrower is notified of the participation sold to such Participantand such Participant agrees, for the benefit of the Borrower, to comply with ***Section 10.15*** asthough it were a Lender.

 

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

 

(g)                                 Ifthe consent of the Borrower to an assignment or to an Eligible Assignee isrequired hereunder (including a consent or approval to an assignment which doesnot meet the minimum assignment threshold specified in ***clause (i)*** of the proviso to the firstsentence of ***Section 10.07(b)***),the Borrower shall be deemed to have given its consent or approval fiveBusiness Days after the date the Assignment and Assumption has been deliveredto the Borrower by the assigning Lender (through the Administrative Agent)unless such consent or approval is expressly refused by the Borrower prior to suchfifth Business Day.

 

(h)                                 Asused herein, the following terms have the following meanings:

 

“***Eligible Assignee***”means (a) a Lender; (b) a Lender Affiliate; (c) an Approved Fund; and (d) anyother Person (other than a natural Person) approved by the Administrative Agentand the L/C Issuer and, unless an Event of Default has occurred and iscontinuing, the Borrower (each such approval not to be unreasonably withheld ordelayed), *providedthat,* notwithstanding the foregoing, “*Eligible Assignee*” shall notinclude the Borrower or any of the Borrower’s Affiliates or Subsidiaries.

 

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

 

“***Approved Fund***” meansany Fund that is administered or managed by (a) a Lender or (b) a LenderAffiliate.

 

“***Lender Affiliate***”means, with respect to a Lender, another Person that directly, or indirectlythrough one or more intermediaries, Controls or is Controlled by or is undercommon Control with the specified Lender. “*Control*”means the possession, directly or indirectly, of the power to direct or causethe direction of the management or policies of a Person, whether through theability to exercise voting power, by contract or otherwise.  “*Controlling*” and “*Controlled*” have meaningscorrelative thereto.

 

Notwithstanding anythingto the contrary contained herein, if at any time the L/C Issuer assigns all ofits Commitment and Loans pursuant to ***subsection (b***) above, the L/C Issuer may upon 30days’

 

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notice to the Borrowerand the Lenders, resign as L/C Issuer. In the event of such resignation, the Borrower shall be entitled toappoint from among the Lenders a successor L/C Issuer hereunder. Upon theacceptance by such Lender of the appointment as the successor L/C Issuer, suchPerson acting as such successor L/C Issuer shall succeed to all the rights, powers,and duties of the retiring L/C Issuer, and the term “*L/C Issuer*” shall mean suchsuccessor Letter of Credit issuer, and the retiring L/C Issuer’s rights,powers, and duties as L/C Issuer shall be terminated, without any other orfurther act or deed on the part of the retiring L/C Issuer or any Lender, otherthan the right of the retiring L/C Issuer to require the successor L/C Issuerto issue letters of credit in substitution for the Letters of Credit, if any,outstanding at the time of such succession or to make other arrangementssatisfactory to the retiring L/C Issuer to effectively assume the obligationsof the retiring L/C Issuer, with respect to such Letters of Credit. The failureby the Borrower to appoint any such successor shall not affect the resignationof the retiring L/C Issuer; *provided that* if the L/C Issuer retiresand no successor L/C Issuer has been appointed by the Borrower, the retiringL/C Issuer shall retain all the rights and obligations of the L/C Issuerhereunder with respect to all Letters of Credit outstanding as of the effectivedate of its resignation as L/C Issuer and all L/C Obligations with respectthereto (including the right to require the Lenders to make Base Rate Loans orfund risk participations in Unreimbursed Amounts pursuant to ***Section 2.03(c)***).

 

**10.08****                 Confidentiality. **Each of the Administrative Agent, theL/C Issuer, and the Lenders agrees to maintain the confidentiality of theInformation (as defined below), except that Information may be disclosed (a) toits and its Affiliates’ directors, officers, employees, and agents, includingaccountants, legal counsel, and other advisors who have a need to know suchinformation in connection with the transactions contemplated by this Agreementor the provisions of other financial products or services to Borrower (and eachdisclosing party agrees that the Persons to whom such disclosure is made willbe informed of the confidential nature of such Information and instructed tokeep such Information confidential), (b) to the extent requested by anyregulatory authority having jurisdiction over the disclosing party, (c) to theextent required by applicable laws or regulations or by any subpoena or similarlegal process, (d) to any other party to this Agreement, (e) in connection withthe exercise of any remedies hereunder or any suit, action or proceedingrelating to this Agreement or the enforcement of rights hereunder, (f) subjectto an agreement containing provisions substantially the same as those of this ***Section 10.08***,to (i) any Eligible Assignee of or Participant in, or any prospective EligibleAssignee of or Participant in, any of its rights or obligations under thisAgreement or (ii) any direct or indirect contractual counterparty orprospective counterparty (or such contractual counterparty’s or prospectivecounterparty’s professional advisor) to any credit derivative transactionrelating to obligations of the Borrower, (g) with the consent of the Borrower,(h) to the extent such Information (i) becomes publicly available other than asa result of a breach of this ***Section 10.08***or any similar confidentialityundertaking by which the disclosing party is bound, or (ii) becomes availableto the Administrative Agent, the L/C Issuer, or any Lender on a nonconfidentialbasis from a source other than the Borrower, and not from a Person party to theLoan Documents, or (i) to the National Association of Insurance Commissionersor any other similar organization.  Inaddition, the Administrative Agent, the L/C Issuer, and the Lenders may disclosethe (i) existence of this Agreement, (ii) the initial pricing under thisAgreement, (iii) the Termination Date, (iv) the initial principal amount ofthis Agreement, and (v) the identities of the Administrative Agent, theSyndication Agent, the L/C Issuer, the Arrangers, and the documentation agentsunder this Agreement to market data collectors, similar service providers tothe lending industry, and service providers to the Administrative Agent, theL/C Issuer, and the Lenders in connection with the administration andmanagement of this Agreement, the other Loan Documents, the Commitments, theLoans, and the Letters of Credit.  Forthe purposes of this ***Section 10.08***, “***Information***” means all information receivedfrom the Borrower relating to the Borrower or its business, other than any suchinformation that is available to the Administrative Agent, the L/C Issuer, orany Lender on a nonconfidential basis prior to disclosure by the Borrower.  The Administrative Agent, the L/C Issuer,the Syndication Agent, and each Lender shall be considered to have compliedwith its

 

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obligation to do so ifsuch Person has exercised the same degree of care to maintain theconfidentiality of such Information as such Person would accord to its ownconfidential information.

 

**10.09****                 Set-off. **In addition to any rights and remediesof the Lenders provided by law, upon the occurrence and during the continuanceof any Event of Default, each Lender and each of its Affiliates that is afinancial institution are authorized at any time and from time to time, withoutprior notice to the Borrower, any such notice being waived by the Borrower tothe fullest extent permitted by law, to set off and apply any and all deposits(general or special, time or demand, provisional or final) at any time held by,and other indebtedness at any time owing by, such Lender or any such Affiliateto or for the credit or the account of the Borrower against any and allObligations owing to such Lender, hereunder or under any Loan Document, now orhereafter existing, irrespective of whether or not the Administrative Agent orsuch Lender shall have made demand under this Agreement or any other LoanDocument and although such Obligations may be contingent or unmatured ordenominated in a currency different from that of the applicable deposit orindebtedness.  Each Lender agreespromptly to notify the Borrower and the Administrative Agent after any suchset-off and application; *provided that* the failure to give suchnotice shall not affect the validity of such set-off and application.

 

**10.10****                 Interest RateLimitation. **Notwithstandinganything to the contrary contained in any Loan Document, the interest paid oragreed to be paid under the Loan Documents shall not exceed the maximum rate ofnon-usurious interest permitted by applicable Law (the “***Maximum Rate***”).  If the Administrative Agent or any Lender shall receive interestin an amount that exceeds the Maximum Rate, the excess interest shall beapplied to the principal of the Loans or, if it exceeds such unpaid principal,refunded to the Borrower.  Indetermining whether the interest contracted for, charged, or received by theAdministrative Agent or a Lender exceeds the Maximum Rate, such Person may, tothe extent permitted by applicable Law, (a) characterize any payment that isnot principal as an expense, fee, or premium rather than interest, (b) excludevoluntary prepayments and the effects thereof, and (c) amortize, prorate,allocate, and spread in equal or unequal parts the total amount of interestthroughout the contemplated term of the Obligations hereunder.

 

**10.11****                 Counterparts. **This Agreement may be executed in one ormore counterparts, each of which shall be deemed an original, but all of whichtogether shall constitute one and the same instrument.

 

**10.12****                 Integration. **This Agreement, together with the otherLoan Documents, comprises the complete and integrated agreement of the partieson the subject matter hereof and thereof and supersedes all prior agreements,written or oral, on such subject matter, including any commitment letterrelating to the credit facility contemplated hereby.  In the event of any conflict between the provisions of thisAgreement and those of any other Loan Document, the provisions of thisAgreement shall control.

 

**10.13****                 Survival ofRepresentations and Warranties. **Allrepresentations and warranties made hereunder and in any other Loan Document orother document delivered pursuant hereto or thereto or in connection herewithor therewith shall survive the execution and delivery hereof and thereof.

 

**10.14****                 Severability. **If any provision of this Agreement orthe other Loan Documents is held to be illegal, invalid or unenforceable, (a)the legality, validity, and enforceability of the remaining provisions of thisAgreement and the other Loan Documents shall not be affected or impairedthereby, and (b) the parties shall endeavor in good faith negotiations toreplace the illegal, invalid, or unenforceable provisions with valid provisionsthe economic effect of which comes as close as possible to that of the illegal,invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall notinvalidate or render unenforceable such provision in any other jurisdiction.

 

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**10.15****                 Foreign Lenders.**

 

(a)(i)                       Each Lenderthat is not a “*United States person*” within the meaning of *Section 7701(a)(30)*of the Code (a “***Foreign Lender***”)shall deliver to the Administrative Agent, with a copy to the Borrower, priorto receipt of any payment subject to withholding under the Code (or uponaccepting an assignment of an interest herein), two duly signed completedcopies of either IRS Form W-8BEN or any successor thereto (relating to suchForeign Lender and entitling it to an exemption from, or reduction of,withholding tax on all payments to be made to such Foreign Lender by theBorrower pursuant to this Agreement) or IRS Form W-8ECI or any successorthereto (relating to all payments to be made to such Foreign Lender by theBorrower pursuant to this Agreement) or such other evidence satisfactory to theBorrower and the Administrative Agent that such Foreign Lender is entitled toan exemption from, or reduction of, U.S. withholding tax including anyexemption pursuant to *Section 881(c)* of the Code.  Thereafter and from time to time, each suchForeign Lender shall (A) promptly submit to the Administrative Agent, with acopy to the Borrower, such additional duly completed and signed copies of oneof such forms (or such successor forms as shall be adopted from time to time bythe relevant United States taxing authorities) as may then be available underthen current United States laws and regulations to avoid, or such evidence asis satisfactory to the Borrower and the Administrative Agent of any availableexemption from or reduction of, United States withholding taxes in respect ofall payments to be made to such Foreign Lender by the Borrower pursuant to thisAgreement, (B) promptly notify the Administrative Agent, with a copy to theBorrower, of any change in circumstances which would modify or render invalidany claimed exemption or reduction, and (C) take such steps as shall not bematerially disadvantageous to it, in the reasonable judgment of such Lender,and as may be reasonably necessary (including the re-designation of its LendingOffice) to avoid any requirement of applicable Laws that the Borrower make anydeduction or withholding for taxes from amounts payable to such Foreign Lender.

 

(ii)                                  EachForeign Lender, to the extent it does not act or ceases to act for its ownaccount with respect to any portion of any sums paid or payable to such Lenderunder any of the Loan Documents (for example, in the case of a typicalparticipation by such Lender), shall deliver to the Administrative Agent on thedate when such Foreign Lender ceases to act for its own account with respect toany portion of any such sums paid or payable, and at such other times as may benecessary in the determination of the Administrative Agent (in the reasonableexercise of its discretion), (A) two duly signed completed copies of the formsor statements required to be provided by such Lender as set forth above, toestablish the portion of any such sums paid or payable with respect to whichsuch Lender acts for its own account that is not subject to U.S. withholdingtax, and (B) two duly signed completed copies of IRS Form W-8IMY (or anysuccessor thereto), together with any information such Lender chooses totransmit with such form, and any other certificate or statement of exemptionrequired under the Code, to establish that such Lender is not acting for itsown account with respect to a portion of any such sums payable to such Lender.

 

(iii)                               TheBorrower shall not be required to pay any additional amount to any ForeignLender under ***Section 3.01***(A) with respect to any Taxes required to be deducted or withheld on the basisof the information, certificates, or statements of exemption such Lendertransmits with an IRS Form W-8IMY pursuant to this ***Section 10.15(a)*** or (B) if such Lendershall have failed to satisfy the foregoing provisions of this ***Section 10.15(a)***;*provided**that,*if such Lender shall have satisfied the requirement of this ***Section 10.15(a)***on the date such Lender became a Lender or ceased to act for its own accountwith respect to any payment under any of the Loan Documents, nothing in this ***Section 10.15(a)***shall relieve the Borrower of its obligation to pay any amounts

 

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pursuant to ***Section 3.01*** inthe event that, as a result of any change in any applicable law, treaty orgovernmental rule, regulation or order, or any change in the interpretation,administration or application thereof, such Lender is no longer properlyentitled to deliver forms, certificates, or other evidence at a subsequent dateestablishing the fact that such Lender or other Person for the account of whichsuch Lender receives any sums payable under any of the Loan Documents is notsubject to withholding or is subject to withholding at a reduced rate.

 

(iv)                              TheAdministrative Agent may, without reduction, withhold any Taxes required to bededucted and withheld from any payment under any of the Loan Documents withrespect to which the Borrower is not required to pay additional amounts underthis ***Section 10.15(a)***.

 

(b)                                 Uponthe request of the Administrative Agent, each Lender that is a “*UnitedStates person*” within the meaning of *Section 7701(a)(30)* ofthe Code shall deliver to the Administrative Agent two duly signed completedcopies of IRS Form W-9.  If such Lenderfails to deliver such forms, then the Administrative Agent may withhold fromany interest payment to such Lender an amount equivalent to the applicableback-up withholding tax imposed by the Code, without reduction.

 

(c)                                  Ifany Governmental Authority asserts that the Administrative Agent did notproperly withhold or backup withhold, as the case may be, any tax or otheramount from payments made to or for the account of any Lender, such Lendershall indemnify the Administrative Agent therefor, including all penalties andinterest, any taxes imposed by any jurisdiction on the amounts payable to theAdministrative Agent under this ***Section 10.15***, and costs and expenses (includingattorneys’ fees and expenses) of the Administrative Agent.  The obligation of the Lenders under this ***Section 10.15***shall survive the termination of the Total Commitment, repayment of all theObligations hereunder, and the resignation of the Administrative Agent.

 

**10.16****                 Removal andReplacement of Lenders.**

 

(a)                                  Underany circumstances set forth herein providing that the Borrower shall have theright to remove or replace, as the case may be, a Lender as a party to thisAgreement, the Borrower may, upon notice to such Lender and the AdministrativeAgent, (i) remove such Lender by terminating such Lender’s Commitment and repayin full all principal, interest, fees, and other amounts owing or accrued tosuch Lender through the date of termination (including any amounts payablepursuant to ***Section 3.05****)*,or (ii) replace such Lender by causing such Lender to assign all itsCommitment, Loans, and participations in L/C Obligations (without payment ofany assignment fee) pursuant to ***Section 10.07(b)*** to one or more other Lenders or EligibleAssignees procured by the Borrower; *provided**that,* if the Borrower electsto exercise such right with respect to any Lender pursuant to ***Section 3.06(b),***it shall be obligated to remove or replace, as the case may be, all Lendersthat have made similar requests for compensation pursuant to ***Section 3.01*** or ***3.04***.  If the Borrower proceeds under ***clause (i)*** of thepreceding sentence, the Borrower shall provide appropriate assurances andindemnities (which may include letters of credit) to the L/C Issuer as it mayreasonably require with respect to the obligation of the removed Lender orLenders to fund participation interests in any L/C Obligations thenoutstanding.  Any Lender being replacedpursuant to ***clause (ii)***of the preceding sentence shall execute and deliver an Assignment andAssumption with respect to such Lender’s Commitment, Loans, and participationsin L/C Obligations.

 

(b)                                 This***Section 10.16***shall supersede any provision in ***Section 10.01*** to the contrary.

 

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**10.17****                 Governing Law.**

 

(a)                                  THISAGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OFTHE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMEDENTIRELY WITHIN SUCH STATE; *PROVIDED**THAT* THE ADMINISTRATIVEAGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.

 

(b)                                 ANYLEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOANDOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THEBOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCHSTATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THEADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITSPROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.  THE BORROWER, THE ADMINISTRATIVE AGENT, ANDEACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THELAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAYNOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCHJURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATEDTHERETO.  THE BORROWER, THEADMINISTRATIVE AGENT, AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT,OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OFSUCH STATE.

 

**10.18****                 Waiver of Rightto Trial by Jury. **EACH PARTY TOTHIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAYCONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETOOR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATEDTHERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDEDIN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTSTHAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BYCOURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE ANORIGINAL COUNTERPART OR A COPY OF THIS ***SECTION 10.18*** WITH ANY COURT AS WRITTEN EVIDENCE OFTHE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BYJURY.

 

**10.19****                 TIME IS OF THEESSENCE. **TIME IS OF THE ESSENCE OFTHE LOAN DOCUMENTS.

 

**10.20****                 ENTIRE AGREEMENT. **THIS AGREEMENT AND THE OTHER LOANDOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BECONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORALAGREEMENTS OF THE PARTIES.  THERE ARE NOUNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

 

**10.21****                 USA PATRIOT ACTNOTICE. **Each Lender, the L/C Issuer(for itself and not on behalf of any Lender) and the Administrative Agent (foritself and not on behalf of any Lender) hereby notifies the Borrower thatpursuant to the requirements of the USA Patriot Act (Title III of Pub. L.107-56

 

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(signed into lawOctober 26, 2001)) (the “***Act***”), it is required to obtain, verify and recordinformation that identifies the Borrower, which information includes the nameand address of the Borrower and other information that will allow such Lender,the L/C Issuer, or the Administrative Agent, as applicable, to identify theBorrower in accordance with the Act.

 

**10.22****                 TERMINATION OFEXISTING CREDIT AGREEMENTS. **On theClosing Date, the Commitments under and as defined in each of the ExistingCredit Agreements shall terminate, and each of Bank of America, asAdministrative Agent under and as defined in each of the Existing CreditAgreements, and the Lenders that are party to either of the Existing CreditAgreements hereby waive advance notice of such termination.

 

 

***[Remainder of Page Intentionally Left Blank***

***Signature Pages Follow]***

 

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Signature Page to that certainFive-Year Revolving Credit Agreement dated as of July 28, 2004, amongALLTEL Corporation, as the Borrower, Bank of America, N.A., as theAdministrative Agent, JPMorgan Chase Bank, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 
| **ALLTEL CORPORATION**, as the *Borrower*  |
|--------------------------------------------|
|                                       |
| By:                                        | /s/ Scott T. Ford |   |
|                                       | Scott  T. Ford |
|                                       | Chief  Executive Officer and President |
|                                       |
|                                       |
| **BANK OF AMERICA, N.A.**, as the          |
| *Administrative Agent*the *L/C  Issuer,*   |
| and a *Lender*                             |
|                                       |
|                                       |
| By:                                        | /s/ Todd Shipley |   |
|                                       | Todd  Shipley |
|                                       | Managing  Director |
|                                       |
|                                       |
| **JPMORGAN CHASE BANK**,                   |
| as the *Syndication  Agent* and a *Lender* |
|                                       |
|                                       |
| By:                                        | /s/ David M. Mallett |   |
|                                       | David  M. Mallett |
|                                       | Vice  President |

 

----

 

Signature Page to thatcertain Five-Year Revolving Credit Agreement dated as of July 28, 2004,among ALLTEL Corporation, as the Borrower, Bank of America, N.A., as theAdministrative Agent, JPMorgan Chase Bank, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 
|   | **CITICORP USA, INC.,** |
|--------|-------------------------|
|   | as a *Lender*           |
|   |                    |
|   |                    |
|   | By:                     | /s/ Maureen Maroney |
|   | Name:                   | Maureen Maroney |
|   | Title:                  | Vice President |
|        |                         |  |  |  |

 

----

 

Signature Page to thatcertain Five-Year Revolving Credit Agreement dated as of July 28, 2004,among ALLTEL Corporation, as the Borrower, Bank of America, N.A., as theAdministrative Agent, JPMorgan Chase Bank, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 

 
|   | **KEYBANK NATIONAL ASSOCIATION,** |
|--------|-----------------------------------|
|   | as a *Lender*                     |
|   |                              |
|   |                              |
|   | By:                               | /s/ Robert W. Boswell |
|   | Name:                             | Robert W. Boswell |
|   | Title:                            | Vice President |
|        |                                   |  |  |  |

 

----

 

Signature Page to thatcertain Five-Year Revolving Credit Agreement dated as of July 28, 2004,among ALLTEL Corporation, as the Borrower, Bank of America, N.A., as theAdministrative Agent, JPMorgan Chase Bank, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 

 
|   | **WACHOVIA BANK, NATIONAL ASSOCIATION,** |
|--------|------------------------------------------|
|   | as a *Lender*                            |
|   |                                     |
|   |                                     |
|   | By:                                      | /s/ Mark L. Cook |
|   | Name:                                    | Mark L. Cook |
|   | Title:                                   | Director |
|        |                                          |  |  |  |

 

----

 

Signature Page to thatcertain Five-Year Revolving Credit Agreement dated as of July 28, 2004,among ALLTEL Corporation, as the Borrower, Bank of America, N.A., as theAdministrative Agent, JPMorgan Chase Bank, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 

 
|   | **BARCLAYS BANK PLC,** |
|--------|------------------------|
|   | as a *Lender*          |
|   |                   |
|   |                   |
|   | By:                    | /s/ L. Peter Yetman |
|   | Name:                  | L. Peter Yetman |
|   | Title:                 | Director |
|        |                        |  |  |  |

 

----

 

Signature Page to thatcertain Five-Year Revolving Credit Agreement dated as of July 28, 2004,among ALLTEL Corporation, as the Borrower, Bank of America, N.A., as theAdministrative Agent, JPMorgan Chase Bank, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 

 
|   | **MERRILL LYNCH BANK USA,** |
|--------|-----------------------------|
|   | as a *Lender*               |
|   |                        |
|   |                        |
|   | By:                         | /s/ Preston L. Jackson |
|   | Name:                       | Preston L. Jackson |
|   | Title:                      | President & CEO |
|        |                             |  |  |  |

 

----

 

Signature Page to thatcertain Five-Year Revolving Credit Agreement dated as of July 28, 2004,among ALLTEL Corporation, as the Borrower, Bank of America, N.A., as theAdministrative Agent, JPMorgan Chase Bank, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 

 
|   | **SUNTRUST BANK,**as a *Lender* |
|--------|---------------------------------|
|   |                            |
|   |                            |
|   | By:                             |  /s/ Kip Hurd |
|   | Name:                           | Kip  Hurd |
|   | Title:                          | Vice President |
|        |                                 |  |  |  |

 

----

 

Signature Page to thatcertain Five-Year Revolving Credit Agreement dated as of July 28, 2004,among ALLTEL Corporation, as the Borrower, Bank of America, N.A., as theAdministrative Agent, JPMorgan Chase Bank, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 

 
|   | **WILLIAM STREET COMMITMENT CORPORATION,**                              |
|--------|-------------------------------------------------------------------------|
|   | as a *Lender*(Recourse  only to William Street Commitment  corporation) |
|   |                                                                    |
|   |                                                                    |
|   | By:                                                                     | /s/ Jennifer M. Hill |
|   | Name:                                                                   | Jennifer M. Hill |
|   | Title:                                                                  | Chief Financial Officer |
|        |                                                                         |  |  |  |

 

----

 

Signature Page to thatcertain Five-Year Revolving Credit Agreement dated as of July 28, 2004,among ALLTEL Corporation, as the Borrower, Bank of America, N.A., as theAdministrative Agent, JPMorgan Chase Bank, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 

 
|   | **THE BANK OF TOKYO-MITSUBISHI, LTD.,** |
|--------|-----------------------------------------|
|   | as a *Lender*                           |
|   |                                    |
|   |                                    |
|   | By:                                     | /s/ D. Barnell |
|   | Name:                                   | D. Barnell |
|   | Title:                                  | Vice President |
|        |                                         |  |  |  |

 

----

 

Signature Page to thatcertain Five-Year Revolving Credit Agreement dated as of July 28, 2004,among ALLTEL Corporation, as the Borrower, Bank of America, N.A., as theAdministrative Agent, JPMorgan Chase Bank, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 

 
|   | **PNC BANK, N.A.,** |
|--------|---------------------|
|   | as a *Lender*       |
|   |                |
|   |                |
|   | By:                 | /s/ Sharon Geffel |
|   | Name:               | Sharon Geffel |
|   | Title:              | Vice President |
|        |                     |  |  |  |

 

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Signature Page to thatcertain Five-Year Revolving Credit Agreement dated as of July 28, 2004,among ALLTEL Corporation, as the Borrower, Bank of America, N.A., as theAdministrative Agent, JPMorgan Chase Bank, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 

 
|   | **MELLON BANK,** |
|--------|------------------|
|   | as a *Lender*    |
|   |             |
|   |             |
|   | By:              | /s/ Nancy E. Gale |
|   | Name:            | Nancy E. Gale |
|   | Title:           | First Vice  President |
|        |                  |  |  |  |

 

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Signature Page to thatcertain Five-Year Revolving Credit Agreement dated as of July 28, 2004,among ALLTEL Corporation, as the Borrower, Bank of America, N.A., as theAdministrative Agent, JPMorgan Chase Bank, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 

 
|   | **REGIONS BANK,**as a *Lender* |
|--------|--------------------------------|
|   |                           |
|   |                           |
|   | By:                            | /s/ Elaine B. Passman |
|   | Name:                          | Elaine B. Passman |
|   | Title:                         | Assistant Vice  President Corporate Banking |
|        |                                |  |  |  |

 

----

 

Signature Page to that certainFive-Year Revolving Credit Agreement dated as of July 28, 2004, amongALLTEL Corporation, as the Borrower, Bank of America, N.A., as theAdministrative Agent, JPMorgan Chase Bank, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 

 
|   | **UNION BANK OF CALIFORNIA, N.A.,** |
|--------|-------------------------------------|
|   | as a *Lender*                       |
|   |                                |
|   |                                |
|   | By:                                 | /s/ Richard Vian |
|   | Name:                               | Richard Vian |
|   | Title:                              | Assistant Vice  President |
|        |                                     |  |  |  |

 

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***SCHEDULE 2.01***

 

**COMMITMENTSAND PRO RATA SHARES**

 
| **Lender**                             |   | **Commitment** |             | **Pro Rata  Share** |          |
|----------------------------------------|--------|----------------|------------------|---------------------|---------------|
| BANK OF AMERICA,  N.A.                 |   | $              | 200,000,000.00   |                | 13.333333333  | % |
| JPMORGAN CHASE  BANK                   |   | $              | 200,000,000.00   |                | 13.333333333  | % |
| CITICORP USA,  INC.                    |   | $              | 150,000,000.00   |                | 10.000000000  | % |
| KEYBANK NATIONAL  ASSOCIATION          |   | $              | 150,000,000.00   |                | 10.000000000  | % |
| WACHOVIA BANK,  NATIONAL ASSOCIATION   |   | $              | 150,000,000.00   |                | 10.000000000  | % |
| BARCLAYS BANK  PLC                     |   | $              | 150,000,000.00   |                | 10.000000000  | % |
| MERRILL LYNCH  BANK USA                |   | $              | 90,000,000.00    |                | 6.000000000   | % |
| SUNTRUST BANK                          |   | $              | 90,000,000.00    |                | 6.000000000   | % |
| WILLIAM STREET  COMMITMENT CORPORATION |   | $              | 90,000,000.00    |                | 6.000000000   | % |
| THE BANK OF  TOKYO-MITSUBISHI, LTD.    |   | $              | 50,000,000.00    |                | 3.333333333   | % |
| PNC BANK, N.A.                         |   | $              | 45,000,000.00    |                | 3.000000000   | % |
| MELLON BANK                            |   | $              | 45,000,000.00    |                | 3.000000000   | % |
| REGIONS BANK                           |   | $              | 45,000,000.00    |                | 3.000000000   | % |
| UNION BANK OF  CALIFORNIA, N.A.        |   | $              | 45,000,000.00    |                | 3.000000000   | % |
| **TOTAL**                              |   | $              | 1,500,000,000.00 |                | 100.000000000 | % |

 

----

 

***SCHEDULE 2.03***

 

**EXISTINGLETTERS OF CREDIT**

 
| **Beneficiary**                            |   | **Expiry  Date** |   | **Letter of  Credit  Reference  Number** |   | **Auto-Renewal  Notice  Period Prior to the  Expiry Date** |   | **Outstanding  Amount** |      |
|--------------------------------------------|--------|------------------|--------|------------------------------------------|--------|------------------------------------------------------------|--------|-------------------------|-----------|
|                                       |   |             |   |                                     |   |                                                       |   |                    |      |
| Liberty Mutual  Insurance Company          |   | 01/15/2005       |   | 3053526                                  |   | 60 days                                                    |   | $                       | 5,260,000 |   |
|                                       |   |             |   |                                     |   |                                                       |   |                    |      |
| Continental  Casualty Company              |   | 11/01/2004       |   | 3041750                                  |   | 60 days                                                    |   | $                       | 2,020,000 |   |
|                                       |   |             |   |                                     |   |                                                       |   |                    |      |
| Cellco  Partnership D/B/A Verizon Wireless |   | 03/12/2005       |   | 3051319                                  |   | 30 days                                                    |   | $                       | 1,500,000 |   |
|                                       |   |             |   |                                     |   |                                                       |   |                    |      |
| US Fire  Insurance Company                 |   | 03/07/2005       |   | 7329317                                  |   | 30 days                                                    |   | $                       | 75,000    |   |
|                                       |   |             |   |                                     |   |                                                       |   |                    |      |
| Full Circle  Insurance Limited             |   | 10/23/2004       |   | 7337911                                  |   | 30 days                                                    |   | $                       | 4,000,000 |   |
|                                       |   |             |   |                                     |   |                                                       |   |                    |      |
| Township of  Stockbridge                   |   | 12/15/2004       |   | 3060529                                  |   | 90 days                                                    |   | $                       | 200,000   |   |
|                                       |   |             |   |                                     |   |                                                       |   |                    |      |
| Bank of America  Mumbai                    |   | 09/10/2004       |   | 3061374                                  |   | 6 weeks                                                    |   | $                       | 579,881   | **(1)** |

 

----

**(1) **Indian Rupees 26,233,281 @INR 45.2/$ as of 3/31/04.

 

----

 

**SCHEDULE 7.02**

 

**EXISTING BORROWER INDEBTEDNESS**

**AND SUBSIDIARY INDEBTEDNESS**

 

**As of June 30, 2004**

 
| **Entity**                                                                                 |   | **Debt** |          | **Secured  Debt** |   |
|--------------------------------------------------------------------------------------------|--------|----------|---------------|-------------------|--------|
|                                                                                       |   |     |          |              |   |
| ALLTEL  Corporation (Parent)                                                               |   | $        | 3,887,972,989 |              | $      | 2,600,000 |   |
| ALLTEL New York,  Inc.                                                                     |   | $        | 15,274,000    |              | $      | 0 |   |
| ALLTEL Georgia  Communications                                                             |   | $        | 100,000,000   |              | $      | 0 |   |
| Georgia ALLTEL,  Inc.                                                                      |   | $        | 27,730,000    |              | $      | 0 |   |
| Western Reserve  Telephone Co.                                                             |   | $        | 35,000,000    |              | $      | 0 |   |
| ALLTEL  Pennsylvania, Inc.                                                                 |   | $        | 11,635,000    |              | $      | 0 |   |
| Texas ALLTEL,  Inc.                                                                        |   | $        | 15,000,000    |              | $      | 0 |   |
| Teleview, Inc.                                                                             |   | $        | 1,335,191     |              | $      | 0 |   |
| ALLTEL  Communications Holdings Company of the Midwest, Inc.  (Formerly Aliant, Inc.) |   | $        | 100,000,000   |              | $      | 0 |   |
|                                                                                       |   |     |          |              |   |
| ALLTEL Ohio  Limited Partnership                                                           |   | $        | 425,000,000   |              | $      | 0 |   |
| KIN Networks,  Inc.                                                                        |   | $        | 4,368,733     |              | $      | 4,368,733 |   |
| ALLTEL  Communications, Inc. (Formerly 360° Communications Company)                   |   | $        | 920,451,760   |              | $      | 0 |   |
|                                                                                       |   |     |          |              |   |
| Totals                                                                                     |   | $        | 5,543,767,673 |              | $      | 6,968,733 |   |

 

----

 

**SCHEDULE 10.02**

**ADMINISTRATIVEAGENT’S OFFICE,CERTAIN ADDRESSES FOR NOTICES**

 

**BORROWER:**

 

ALLTEL Corporation

One Allied Drive

Little Rock, AR  72202

Attention:  Treasurer

Telephone: 501.905.7822

Facsimile: 501.905.5095

Electronic Mail:scott.settelmyer@alltel.com

WebsiteAddress:     www.Alltel.com

 

 

**ADMINISTRATIVE AGENT:**

 

*AdministrativeAgent’s Office(for payments and Loan Notices):*

Bank of America, N.A.

Street Address: 901 MainStreet, 14th Floor

Mail Code: TX1-492-14-04City, State ZIP Code:  Dallas, TX  75202

Attention: Nita Gerstung

Telephone: 214-209-9126

Facsimile:  214-290-9478

Electronic Mail: nita.gerstung@bankofamerica.com

Account No.:  1292000883

Ref:  ALLTEL

ABA# 111000012

 

*OtherNotices as Administrative Agent:*

Bank of America, N.A.Agency ManagementStreet Address:  901 Main Street, 14thFloor

Mail Code:  TX1-492-14-11City, State ZIP Code:  Dallas, TX  75202

Attention:   Maurice Washington

Telephone: 214.209. 214-209-4128

Facsimile:  214-290-9544

Electronic Mail: maurice.washington@bankofamerica.com

 

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