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

 

**364-DAY REVOLVING CREDIT AGREEMENT**

** **

 

**Dated asof July 30, 2003**

 

among

 

**ALLTEL CORPORATION,**

as the Borrower,

 

**BANK OF AMERICA, N.A.,**

as theAdministrative Agent andL/C Issuer,

 

 

**MERRILL LYNCH, PIERCE, FENNER &SMITH INCORPORATED,**

as the SyndicationAgent,

 

 

**BANC OFAMERICA SECURITIES LLC and MERRILL LYNCH, PIERCE, FENNER &**

**SMITHINCORPORATED,**

as the Joint LeadArrangers and Joint Book Runners,

 

 

**CITIBANK,N.A., WACHOVIA BANK, NATIONAL ASSOCIATION,**

**BANKONE, NA, and JPMORGAN CHASE BANK,**

as the Co-DocumentationAgents,

 

 

and

 

**THE OTHER LENDERS PARTY HERETO**

 

 

**$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.                                                                     |
| 2.14                                                  | Extension of Termination  Date.                                                          |
| 2.15                                                  | Conversion to Term Loan.                                                                 |
|                                                  |                                                                                     |
| 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.                                                                              |

 

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| 5.08                                          | Ownership of Property;  Liens.                                                              |
|-----------------------------------------------|---------------------------------------------------------------------------------------------|
| 5.09                                          | Environmental Compliance.                                                                   |
| 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.                                                                                 |
| 5.15                                          | Tax Shelter Regulations.                                                                    |
|                                          |                                                                                        |
| 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.                                             |

 

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| 9.11                     | Other Agents; Joint  Book Runners, Joint Lead Arrangers. |
|--------------------------|----------------------------------------------------------|
|                     |                                                     |
| ARTICLE X. MISCELLANEOUS |
| 10.01                    | Amendments, Etc.                                         |
| 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.                                        |
|                     |                                                     |
| SIGNATURE PAGES          |

 

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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 |
|          |   |   |
| **EXHIBITS**  |
|          |   |   |
|          |   | Form of |
|          |   |   |
| A             |   | Loan Notice |
| B             |   | Term Conversion Election |
| C             |   | Term Conversion Date Certificate |
| D             |   | Note |
| E             |   | Compliance Certificate |
| F             |   | Assignment and Assumption |
| G             |   | Secretary’s Certificate |
| H             |   | Opinion of Counsel |

 

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**364-DAY REVOLVING CREDIT AGREEMENT**

** **

THIS 364-DAY REVOLVING CREDIT AGREEMENT (“***Agreement***”) isentered into as of July 30, 2003, 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 **MERRILL LYNCH, PIERCE, FENNER & SMITHINCORPORATED,**as the Syndication Agent.

 

The Borrower has requested that the Lenders extend arevolving credit facility to the Borrower in the aggregate principal amount ofup to $500,000,000, and the Lenders are willing to do so on the terms andconditions set forth herein.

 

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

 

# **ARTICLE I.**

# **DEFINITIONS AND ACCOUNTING TERMS**

# ** **

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

 

***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***, orsuch other address or account as the Administrative Agent may from time to timenotify 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, the Arranger), and the officers,directors, employees, agents, and attorneys-in-fact of each such Person andAffiliate.

 

***Agreement*** means this 364-Day****RevolvingCredit Agreement.

 

***Applicable Rate*** means the appropriatepercentages per annum as set forth below, based upon the Debt Rating, relevantfee, and Type as set forth below; *provided that*, from and after the TermConversion Date (or from and after the Termination Date (as determined pursuantto ***clause (a***) of thedefinition thereof), if the Term Conversion Date does not occur but any L/CObligations exist after such

 

1

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Termination Date), the Applicable Rate per annum for Eurodollar RateLoans, Base Rate Loans, and Letters of Credit shall increase by .25% for eachPricing Level:

 
| **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                        |   | .080%             |   | .145%                                             |   | 0%                  |   | .075%                |   |
| 2                  |   | A/A2                                   |   | .100%             |   | .225%                                             |   | 0%                  |   | .100%                |   |
| 3                  |   | A-/A3                                  |   | .125%             |   | .325%                                             |   | 0%                  |   | .125%                |   |
| 4                  |   | BBB+/Baa1                              |   | .150%             |   | .400%                                             |   | 0%                  |   | .150%                |   |
| 5                  |   | BBB/Baa2 or  lower                     |   | .175%             |   | .625%                                             |   | 0%                  |   | .200%                |   |

 

***Debt Rating*** means, asof any date of determination, the rating as determined by either S&P orMoody’s (collectively, the “***Debt Ratings***”) of the Borrower’s non-credit-enhanced,senior unsecured long-term debt; *provided that* if a Debt Rating is issuedby each of the foregoing rating agencies, then the higher of such Debt Ratingsshall apply (with the Debt Rating for Pricing Level 1 being the highest and theDebt Rating for Pricing Level 5 being the lowest), unless there is a split inDebt Ratings of more than one level, in which case the Pricing Level that isone level higher than the Pricing Level of the lower Debt Rating shall apply.

 

Initially,the Applicable Rate shall be determined based upon the Debt Rating specified inthe certificate delivered pursuant to ***Section 4.01(a)(v)***. Thereafter, each change in the Applicable Rate resulting from a publiclyannounced change in the Debt Rating shall be effective during the periodcommencing on the date of the public announcement thereof and ending on thedate immediately preceding the effective date of the next such change.

 

***Arranger*** means each of Banc of AmericaSecurities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, eachin its capacity as joint lead arranger and joint book runner.

 

***Arranger Fee Letter***  means the confidential letter agreementdated June 11, 2003, among the Borrower, the Administrative Agent, and theArrangers.

 

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

 

***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 a capitallease.

 

***Audited Financial Statements*** means theaudited Financial Statements of the Borrower and its Subsidiaries for thefiscal year ended December 31, 2002.

 

***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.

 

2

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

 

***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 that bears interest based on the BaseRate 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 meaningspecified in ***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

 

3

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nomination at least amajority of that board or equivalent governing body, or (iii) whose election ornomination to that board or other equivalent governing body was approved byindividuals referred to in ***clauses (i)*** and ***(ii)*** above constituting at the time of such election ornomination at least a majority of that board or equivalent governing body.

 

***Closing Date*** means the first date allthe conditions precedent in ***Section 4.01*** are satisfied or waived in accordance with ***Section 4.01*** (or, inthe 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 principal amount atany one time outstanding not to exceed the amount set forth on ***Schedule 2.01***or inthe 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 E***.

 

***Consenting Lenders*** has the meaning setforth in ***Section 2.14(b).***

 

***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) theunaudited Financial Statements for the three-month period ended March 31,2003, 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.

 

***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 rate equalto (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

 

4

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for Eurodollar Rate Loans *plus* (iii) 2.0% per annum, in each case tothe fullest extent permitted by applicable Laws, and (c) with respect to theLetter of Credit Fee, (i) the Applicable Rate for Letter of Credit Fee *plus*(ii) 2.0% per annum, in each case to the fullest extent permitted by applicableLaws.

 

***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 ERISA duringa 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 partialwithdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan ornotification that a Multiemployer Plan is in reorganization, (d) the filing ofa notice of intent to terminate, the treatment of a Plan amendment as atermination under *Sections 4041*or *4041A*of**ERISA, or the commencementof proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan,(e) an event or condition which constitutes grounds under *Section 4042*of**ERISAfor the termination of, or the appointment of a trustee to administer, anyPension Plan or Multiemployer Plan, or (f) the imposition of any liabilityunder *TitleIV*of**ERISA, other than PBGC premiums due but not delinquentunder *Section4007*of ERISA, upon the Borrower or any ERISA Affiliate.

 

***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

 

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(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 11:00 a.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 Agreement*** means thatcertain 364-Day Revolving Credit Agreement dated as of July 31, 2002, among theBorrower, Bank of America, as administrative agent, and a syndicate of lenders.

 

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

 

***Extension Effective Date***has themeaning set forth in ***Section 2.14(b).***

 

***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 overnightFederal funds transactions with members of the Federal Reserve System arrangedby Federal funds brokers on such day, as published by the Federal Reserve Bankon 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 upwards to the nearest 1/100 of 1%)charged to Bank of America on such day on such transactions as determined bythe 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 FinancialStatements must include statements of shareholders’ equity prepared inaccordance with GAAP, which statements of shareholders’ equity shall be incomparative form to the prior fiscal year-end figures.

 

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***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 anycorporation or other entity owned or controlled, through stock or capitalownership or otherwise, by any of the foregoing.

 

***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 the purposeof assuring in any other manner the obligee in respect of such Indebtedness orother obligation of the payment thereof or to protect such obligee against lossin respect thereof (in whole or in part), or (b) any Lien on any assets of suchPerson securing any Indebtedness or other obligation of any other Person,whether or not such Indebtedness or other obligation is assumed by such Person;*providedthat* the term “*Guaranty Obligation*” shall not includeendorsements of instruments for deposit or collection in the ordinary course ofbusiness.  The amount of any GuarantyObligation shall be deemed to be an amount equal to the stated or determinableamount of the related primary obligation, or portion thereof, in respect ofwhich such Guaranty Obligation is made or, if not stated or determinable, themaximum reasonably anticipated liability in respect thereof as determined bythe guaranteeing 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:

 

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(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), banker’s 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 anyPerson shall include the Indebtedness of any partnership or joint venture(other than a joint venture that is itself a corporation or limited liabilitycompany) in which such Person is a general partner or a joint venturer, unlesssuch Indebtedness is expressly made non-recourse to such Person.  The amount of any capital lease or SyntheticLease Obligation as of any date shall be deemed to be the amount ofAttributable Indebtedness in respect thereof as of such 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 toany Eurodollar Rate Loan, the last day of each Interest Period applicable tosuch Eurodollar 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 be InterestPayment Dates, (b) as to any Base Rate Loan, the last Business Day of eachMarch, June, September, and December and the Maturity Date, and (c) as to anyLoan, the date such Loan becomes due and payable in accordance with thisAgreement.

 

***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*:

 

(i)                                     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;

 

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(ii)                                  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

 

(iii)                               noInterest Period shall extend beyond the scheduled Maturity Date.

 

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

 

***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 administrationthereof by any Governmental Authority charged with the enforcement,interpretation, or administration thereof, and all applicable administrativeorders, directed duties, requests, licenses, authorizations, and permits of,and agreements with, 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.

 

***L/C Obligations*** means, as at 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.

 

***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***, orsuch 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 five Business Days prior to the Maturity Date (assuming, forpurposes of this definition only, and not for purposes of any other Section ofthis Agreement, that the Loans have been converted to a Term Loan pursuant to ***Section 2.15***.)

 

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

 

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***Letter of Credit Sublimit*** means anamount equal to $50,000,000. 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***, and,from and after the Term Conversion Date, means the Term Loan.

 

***Loan Documents*** means (a) thisAgreement, (b) each Note, (c) the Arranger Fee Letter, (d) the Bank of AmericaFee Letter, (e) each Request for Credit Extension, (f) each ComplianceCertificate, (g) all agreements, documents, instruments, and certificatesin favor of the Administrative Agent or any Lender (or the Administrative Agenton behalf of Lenders) ever delivered in connection with or under this Agreementor otherwise delivered in connection with all or any part of the Obligationsevidenced by this Agreement, and (h) all renewals, extensions, andrestatements of, 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***.

 

***Material Adverse Effect*** means, on anydate of determination, (a) a material adverse change in the financial conditionor operations 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.

 

***Maturity Date*** means the TerminationDate;*providedthat*, if the Loans are converted to a Term Loan pursuant to ***Section 2.15***,from and after such conversion, ***“Maturity Date”*** means the first anniversary of the TermConversion Date.

 

***Moody’s*** means Moody’s InvestorsService, Inc.

 

***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 D.***

 

***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,

 

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due or to become due, now existing or hereafter arising, and includinginterest that accrues after the commencement by or against the Borrower or anyAffiliate thereof of any proceeding under any Debtor Relief Laws naming suchPerson as the debtor in such proceeding, regardless of whether such interestand fees are allowed claims in such proceeding.

 

***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 sponsored or maintained by the Borrower or any ERISA Affiliate orto which the Borrower or any ERISA Affiliate contributes or has an obligationto contribute, or in the case of a multiple employer or other plan (asdescribed in *Section 4064(a)*of**ERISA) has made contributions at any timeduring the immediately preceding five plan years.

 

***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

 

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with the requirements fora Permitted Successor Corporation set forth in this definition and that suchmerger or consolidation is permitted under ***Section 7.04***;

 

(d)                                 noChange of Control**shall have occurred as a result of such merger orconsolidation; 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 of Directorsof 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 CreditFee to such Lender, or a determination of the Voting Percentage of suchLender, in each case at any time prior to the earlier of the Termination Dateor the Term Conversion Date (or, in the case of purchases of participations inL/C Obligations or payment of the Letter of Credit Fees, at any time), afraction (expressed as a percentage, carried out to the ninth decimal place),the numerator of which is the amount of the Commitment of such Lenderat such time and the denominator of which is the amount of the Total Commitmentat such time, (b) with respect to an amount to be paid by such Lender hereunder(other than purchases of participations in L/C Obligations), or a paymentof the Facility Fee to such Lender, in each case on or after the earlier of theTermination Date or the Term Conversion Date, a fraction (expressed as apercentage, carried out to the ninth decimal place), the numerator of which isthe amount of the Principal Debt owed to such Lender at such time and thedenominator of which is the amount of the aggregate Principal Debt owed to allLenders at such time, and (c) with respect to an amount to be paid to or forthe account of such Lender (other than the Facility Fee and the Letter ofCredit Fee) at any time, a fraction (expressed as a percentage, carried out tothe ninth decimal place), the numerator of which is the amount of the PrincipalDebt owed to such Lender at such time and the denominator of which is theamount of the Principal Debt owed 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 eventsfor 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%.

 

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***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.

 

***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 exchange transactions,cap transactions, floor transactions, collar transactions, currency swaptransactions, cross-currency rate swap transactions, currency options, spotcontracts, or any other similar transactions or any combination of any of theforegoing (including any options to enter into any of the foregoing), whetheror not any such transaction is governed by or subject to any master agreement,and (b) any and all transactions of any kind, and the related confirmations,which are subject to the terms and conditions of, or governed by, any form ofmaster agreement published by the International Swaps and DerivativesAssociation, Inc., any International Foreign Exchange Master Agreement, or anyother master agreement (any such master agreement, together with any relatedschedules, a “*Master Agreement*”), including any such obligations orliabilities 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 Merrill Lynch,Pierce, Fenner & Smith Incorporated, in its capacity as the SyndicationAgent, 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.

 

***Term Conversion Date*** means the dateupon which the Outstanding Amount of the Loans is converted to a Term Loan inaccordance with ***Section 2.15***.

 

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***Term Conversion Election***has themeaning set forth in ***Section 2.15(a)***.

 

***Term Loan*** means the Outstanding Amountof the Loans from and after the Term Conversion Date.

 

***Termination Date***means the *earlier*of either (a) July 28, 2004, as such date may be extended pursuant to and inaccordance with ***Section 2.14***,or (b) the effective date of any other termination or cancellation of theLenders’ Commitments to lend and of the obligation of the L/C Issuer to makeL/C Credit Extensions under and in accordance with this Agreement.

 

***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*ofthe 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 earlier of the Termination Date or theTerm Conversion Date, such Lender’s Pro Rata Share and (b) at any time from andafter the earlier of the Termination Date or the Term Conversion Date, thepercentage (carried out to the ninth decimal place) which (i) the PrincipalDebt owed to such 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.

 

## **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.

 

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(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)                                 Sectionheadings herein 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 termsnot specifically or completely defined herein shall be construed in conformitywith, and all financial data (including financial ratios and other financialcalculations) required to be submitted pursuant to this Agreement shall beprepared in conformity with, GAAP, as in effect from time to time, applied in amanner consistent with that used in preparing the Audited Financial Statements,except as otherwise specifically prescribed 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.**  Unlessotherwise expressly provided herein, (a) references to OrganizationDocuments, agreements (including the Loan Documents), and other contractualinstruments shall be deemed to include all subsequent amendments, restatements,extensions, supplements, and other modifications thereto, but only to theextent that such amendments, restatements, extensions, supplements, and othermodifications are not prohibited by any Loan Document, and (b) references toany Law shall include all statutory and regulatory provisions consolidating,amending, replacing, supplementing, or interpreting such Law.

 

**1.06****                        Letter of Credit Amounts.**  Unlessotherwise specified, all references herein to the amount of a Letter of Creditat any time shall be deemed to mean the maximum face amount of such Letter ofCredit after giving effect to all increases thereof contemplated by such Letterof Credit or the Letter of Credit Application therefor, whether or not suchincreases have taken effect at such time.

 

# **ARTICLE II.**THE COMMITMENTS AND CREDIT EXTENSIONS

# ** **

**2.01****                       ****Loans****.**  Subjectto the terms and conditions set forth herein, each Lender severally agrees tomake loans (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, (i) the aggregatePrincipal Debt shall not exceed the Total Commitment, and (ii) 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

 

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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 EurodollarRate Loans, as further provided herein.

 

**2.02****                        Borrowings,Conversions, and Continuations 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, appropriately completedand signed by a Responsible Officer of the Borrower.  Each Borrowing of, conversion to, or continuation of EurodollarRate Loans shall be in a principal amount of $5,000,000 or a whole multiple of$1,000,000 in excess thereof.  EachBorrowing of, or conversion to, Base Rate Loans shall be in a principal amountof $1,000,000 or a whole multiple of $500,000 in excess thereof.  Each Loan Notice (whether telephonic orwritten) shall specify (i) whether the Borrower is requesting a Borrowing, aconversion of Borrowings from one Type to the other, or a continuation ofBorrowings as the same Type, (ii) the requested date of the Borrowing,conversion, or continuation, as the case may be (which shall be a BusinessDay), (iii) the principal amount of Loans to be borrowed, converted, orcontinued, (iv) the Type of Borrowings to be borrowed or to which existingBorrowings are to be converted, and (v) if applicable, the duration of theInterest 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 Administrative Agent in immediately availablefunds at the Administrative Agent’s Office not later than 12:00 noon, Dallas,Texas time, on the Business Day specified in the applicable Loan Notice.  Upon satisfaction of the applicableconditions set forth in ***Section 4.02***, the Administrative Agent shall make allfunds 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.

 

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(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 Agentshall be 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 toBorrowings.

 

## **2.03**                        Lettersof 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***, fromtime to time on any Business Day during the period from the Closing Date untilthe Termination Date, to issue Letters of Credit for the account of theBorrower, and to amend or renew Letters of Credit previously issued by it, inaccordance with ***subsection (b)***below,and (B) the Lenders severally agree to participate in Letters of Credit issuedfor the account of the Borrower; *provided that,* the L/C Issuer shall not beobligated to make any L/C Credit Extension with respect to any Letter ofCredit, and no Lender shall be obligated to participate in any Letter of Creditif, after giving effect to such L/C Credit Extension, (x) the Principal Debtwould exceed the Total Commitment, (y) the aggregate Outstanding Amount of theLoans owed to any Lender, *plus* such Lender’s Pro Rata Share of theOutstanding Amount of all L/C Obligations would exceed such Lender’sCommitment, or (z) the Outstanding Amount of the L/C Obligations would exceedthe Letter of Credit Sublimit.  Withinthe foregoing limits, and subject to the terms and conditions hereof, theBorrower’s ability to obtain Letters of Credit shall be fully revolving, andaccordingly the Borrower may, during the foregoing period, obtain Letters ofCredit to replace Letters of Credit that have expired or that have been drawnupon and reimbursed.  All ExistingLetters of Credit shall be deemed to have been issued pursuant hereto, and fromand after the 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,

 

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the issuance of lettersof credit generally or such Letter of Credit in particular or shall impose uponthe L/C Issuer with respect to such Letter of Credit any restriction, reserve,or capital requirement (for which the L/C Issuer is not otherwise compensatedhereunder) not in effect on the date hereof, or shall impose upon the L/CIssuer any unreimbursed loss, cost, or expense which was not applicable on thedate hereof and which the L/C Issuer in 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 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 require. In the case of a request for an amendment of any outstanding Letter ofCredit, such Letter of Credit Application shall specify in form and detail satisfactoryto the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed dateof amendment thereof (which shall be a Business Day); (C) the nature of theproposed amendment; and (D) such other matters as the L/C Issuer may require.

 

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(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 thisAgreement).  Immediately upon theissuance of each Letter of Credit, each Lender shall be deemed to, and herebyirrevocably and unconditionally agrees to, purchase from the L/C Issuer a riskparticipation in such Letter of Credit in an amount equal to the product ofsuch Lender’s Pro Rata 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***”); *provided that*,any such Auto-Renewal Letter of Credit must permit the L/C Issuer to preventany such renewal at least once in each twelve-month period (commencing with thedate of issuance of such Letter of Credit) by giving prior notice to thebeneficiary thereof not later than a day in each such twelve-month period to beagreed upon at the time such Letter of Credit is issued (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.

 

(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 will also deliver to the Borrower and the Administrative Agent atrue and complete copy of such Letter of 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 ofCredit and (b) notify the Borrower and the Administrative Agent of such demandin the event 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 toBorrower of such payment at or before 11:00 a.m., Dallas, Texas time on such

 

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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*** for theprincipal 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*** (otherthan 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 makes fundsavailable shall be deemed to have made a Base Rate Loan to the Borrower in suchamount.  The Administrative Agent shallremit the funds so received to the L/C Issuer.

 

(iii)                               Withrespect to any Unreimbursed Amount that is not fully refinanced by a  Borrowing of Base Rate Loans because theTermination Date has occurred or the conditions set forth in ***Section 2.03(c)(i)***cannotbe satisfied, the Borrower shall be deemed to have incurred from the L/C Issueran L/C Borrowing in the amount of the Unreimbursed Amount that is not sorefinanced, which L/C Borrowing shall be immediately due and payable withoutfurther demand (together with interest) and shall bear interest at the DefaultRate (or, if the Unreimbursed Amount is not so refinanced solely because theTermination Date has occurred, at the rate then applicable to Base RateLoans).  In such event, each Lender’spayment to the Administrative Agent for the account of the L/C Issuer pursuantto ***Section 2.03(c)(ii)***shall be deemed payment in respect of its participation in such L/C Borrowingand shall constitute an L/C Advance from such Lender in satisfaction of itsparticipation obligation under this ***Section 2.03***.

 

(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 continuance ofa 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

 

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to this ***Section 2.03(c)***is subject to the conditions set forth in ***Section 4.02*** (other than delivery by the Borrower of aLoan Notice).  No such making of an L/CAdvance shall constitute a Loan or relieve or otherwise impair the obligationof the Borrower to reimburse the L/C Issuer for the amount of any payment madeby the L/C Issuer under any Letter of Credit, together with interest asprovided 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 from time to time in effect.  A certificate of the L/C Issuer submitted to any Lender (throughthe Administrative Agent) with respect to any amounts owing under this clause(vi) shall be conclusive absent manifest 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 Agent receivesfor the account of the L/C Issuer any payment in respect of the relatedUnreimbursed Amount or interest thereon (whether directly from the Borrower orotherwise, including proceeds of Cash Collateral applied thereto by theAdministrative Agent), the Administrative Agent will distribute to such Lenderits Pro Rata Share thereof (appropriately adjusted, in the case of interestpayments, to reflect the period of time during which such Lender’s L/C Advancewas outstanding) in the same funds as those received by the AdministrativeAgent.

 

(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 FederalFunds Rate from time to time in effect.

 

(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;

 

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(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 otherrepresentative of or successor to any beneficiary or any transferee of suchLetter of Credit, including any arising in connection with any proceeding underany 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 shall promptly examine a copy of eachLetter of Credit and each amendment thereto that is delivered to it and, in theevent of any claim of noncompliance with the Borrower’s instructions or otherirregularity, the Borrower will promptly notify the L/C Issuer.  The Borrower shall be conclusively deemed tohave waived any such claim against the L/C Issuer and its correspondents unlesssuch 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) anyaction taken or omitted in the absence of gross negligence or willfulmisconduct; or (iii) the due execution, effectiveness, validity, orenforceability of any document or instrument related to any Letter of Credit orLetter of Credit Application.  TheBorrower hereby assumes all risks of the acts or omissions of any beneficiaryor transferee with respect to its use of any Letter of Credit; *providedthat*, this assumption is not intended to, and shall not, precludethe Borrower’s pursuing such rights and remedies as it may have against thebeneficiary or transferee at law or under any other agreement.  None of the L/C Issuer, any Agent-RelatedPerson, nor any of the respective correspondents, participants, or assignees ofthe L/C Issuer, shall be liable or responsible for any of the matters describedin ***clauses (i)*** through ***(v)*** of ***Section 2.03(e)*** or inthis ***Section 2.03(f);****providedthat*, anything in such clauses or this ***Section 2.03(f)*** to the contrarynotwithstanding, the Borrower will have a claim against the L/C Issuer, and theL/C Issuer will be liable to the Borrower, to the extent, but only to theextent, of any direct, as opposed to consequential or exemplary, damagessuffered by the Borrower which the Borrower proves were caused by the L/CIssuer’s willful misconduct or gross negligence or the L/C Issuer’s willfulfailure to pay under any Letter of Credit after the presentation to it by thebeneficiary of a sight draft and certificate(s) strictly complying with theterms and conditions of a Letter of Credit.**** Infurtherance and not in limitation of the foregoing, the L/C Issuer may acceptdocuments that appear on their face to be in order, without responsibility forfurther investigation, and the L/C Issuer shall not be responsible for thevalidity or sufficiency of any instrument transferring or assigning orpurporting to transfer or assign a Letter of Credit or the rights or benefitsthereunder or proceeds thereof, in whole or in part, which may prove to beinvalid or ineffective for any reason.

 

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(g)                                 CashCollateral.  (i) Upon the request ofthe Administrative Agent, if an Event of Default exists, or (ii) if, as of theMaturity Date, any Letter of Credit may for any reason remain outstanding andpartially or wholly undrawn, the Borrower shall immediately Cash Collateralizethe then Outstanding Amount of all L/C Obligations (in an amount equal to suchOutstanding Amount).  For purposeshereof, “***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 the L/CObligations, cash or deposit account balances pursuant to documentation in formand substance satisfactory to the Administrative Agent and the L/C Issuer(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/CBorrowings.  If the Borrower is requiredto provide an amount of cash collateral hereunder as a result of the occurrenceof an Event of Default, such amount (to the extent not applied as permittedunder this Agreement) shall be returned to the Borrower within three BusinessDays after all 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) 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 accordancewith its Pro Rata Share****a Letter of Credit fee (the **“*****Letter of Credit Fee*”**)for each Letter of Credit equal to the Applicable Rate (applied on a per diembasis) *times*the daily maximum amount available to be drawn under such Letter of Credit(including 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).  Such Letter ofCredit Fee shall be computed on a quarterly basis in arrears.  Such Letter of Credit Fee shall be due andpayable on the last Business Day of each March, June, September, and December,commencing with the first such date to occur after the issuance of such Letterof Credit, on the Letter of Credit Expiration Date, and thereafter on demand.  If there is any change in the ApplicableRate during any quarter, the daily maximum amount of each Letter of Creditshall be computed and multiplied by the Applicable Rate (applied on a per diembasis) separately for each period during such quarter that such Applicable Ratewas in effect.  While any Event ofDefault exists or after acceleration, the Letter of Credit Fee shall becalculated and payable at the Default Rate to the fullest extent permitted byapplicable 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 June 11, 2003 (as thereafter amended or modifiedfrom time to time, the **“*Bank of America Fee Letter*”**), between the Borrowerand Bank of America.  In addition, theBorrower shall pay directly to the L/C Issuer for its own account the customaryissuance, presentation, amendment, and other processing fees, and otherstandard costs and charges, of the L/C Issuer relating to letters of credit asfrom time to time

 

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specified in writing to the Borrower. Such customary fees and standard costs and charges are due and payableon 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 ofprepayment of Eurodollar Rate Loans, and (B) on the date of prepayment of BaseRate Loans, (ii) any prepayment of Eurodollar Rate Loans shall be in aprincipal amount of $5,000,000 or a whole multiple of $1,000,000 in excessthereof, and (iii) any prepayment of Base Rate Loans shall be in a principalamount of $1,000,000 or a whole multiple of $500,000 in excess thereof, or, ineach case, if less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date andamount of such prepayment and the Type(s) of Loans to be prepaid.  The Administrative Agent will promptlynotify each Lender of its receipt of each such notice and of the amount of suchLender’s Pro Rata Share of such prepayment. If such notice is given by the Borrower, the Borrower shall make suchprepayment and the payment amount specified in such notice shall be due andpayable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by allaccrued interest thereon, together with any additional amounts then due andpayable pursuant to ***Section 3.05***.  Each such prepayment shall be applied to theLoans of the Lenders in 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 of Commitments.**  TheBorrower may, upon notice to the Administrative Agent, terminate the TotalCommitment, or permanently reduce the Total Commitment to an amount not lessthan the 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 Agentand each Lender written notice of a Change of Control with respect to theBorrower no later than two Business Days after a Responsible Officer of theBorrower has knowledge of such Change of Control.  No later than 30 days after the giving by the Borrower of suchnotice, each Lender shall have the right, in its sole discretion, to notify theBorrower in writing (with a copy to the Administrative Agent) of its electionto terminate all of its Commitment hereunder, to require a mandatory prepaymentof all Obligations owed to such Lender, and to cease to be a Lender partyhereto, which commitment termination and mandatory prepayment shall occur onthe 30th day after such notice is received by the Borrower.  If a Change of Control occurs, the

 

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Borrower shall have no rightto make any new Borrowings unless and until the Commitments of all Lenders thatelect to terminate their Commitments pursuant to this ***Section 2.06*** have been terminated, and allObligations 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**                        **Repaymentof Outstanding Amount of all Loans.**  The Borrower shall repay to the Lenders on the Maturity Date theOutstanding Amount of all Loans 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.

 

## **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 or the TermConversion Date has occurred, on the Principal Debt).  The Facility Fee shall accrue at all times from the Closing Dateuntil the date the Principal Debt has been paid in full and the TotalCommitment has been terminated and shall be due and payable quarterly inarrears on the last Business Day of each March, June, September, and December,commencing with the first such date to occur after the Closing Date, and endingon the date both the Principal Debt has been paid in full and the TotalCommitment has been terminated.  TheFacility Fee shall be calculated quarterly in arrears, in accordance with ***Section 2.10***, and ifthere is any change in the Applicable Rate during any quarter, the actual dailyamount shall be computed and multiplied by the Applicable Rate (on a per diembasis) separately for each period during such quarter that such Applicable Ratewas in effect.  The Facility Fee shall accrueat all times, including at any time during which one or more of the conditionsin ***Article IV*** is notmet.

 

(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 earlier of the TerminationDate or the Term Conversion Date, the Utilization Fee shall

 

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be payable only in respect of each day that such aggregate PrincipalDebt exceeds 50% of the Total Commitment, and (ii) on and after the earlier ofthe Termination Date or the Term Conversion Date, the Utilization Fee shall bepayable only in respect of each day that such aggregate Principal Debt exceeds50% of the Total Commitment in existence on the Business Day immediately priorto the termination of the Total Commitment (whether on the Termination Date orthe Term Conversion Date).  TheUtilization Fee shall be due and payable quarterly in arrears on the lastBusiness Day of each March, June, September, and December, commencing with thefirst such date to occur after the Closing Date, and ending on the date boththe 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*** is notmet.

 

(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 Arranger 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 Rate Loansshall be calculated on the basis of a year of 365 or 366 days, as the case maybe, 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.

 

## **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 CreditExtensions made 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

 

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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 the AdministrativeAgent, for the account of the respective Lenders to which such payment is owed,at the Administrative Agent’s Office in Dollars and in immediately availablefunds not later than 12:00 noon, Dallas, Texas time, on the date specifiedherein.  The Administrative Agent willpromptly distribute to each Lender its Pro Rata Share (or other applicableshare as provided herein) of such payment in like funds as received by wiretransfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 12:00 noon,Dallas Texas time, shall be deemed received on the next succeeding Business Dayand any applicable interest or fee shall continue to accrue.

 

(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 suchLender, as the case may be, has timely made such payment and may (but shall notbe so required to), in reliance thereon, make available a corresponding amountto the Person entitled thereto.  If andto the extent that such payment was not in fact made to the AdministrativeAgent in immediately available funds, then:

 

(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, atthe Federal Funds Rate from time to time in effect; 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 per annumequal to the Federal Funds Rate from time to time in effect. If such Lenderpays such amount to the Administrative Agent, then such amount shall constitutesuch Lender’s Loan or L/C Advance, included in the applicable Borrowing or L/CBorrowing.  If such Lender does not paysuch amount forthwith upon the Administrative Agent’s demand therefor, theAdministrative Agent may make a demand therefor upon the Borrower, and theBorrower shall pay such amount to the Administrative Agent, together withinterest thereon for the Compensation Period at a rate per annum equal to therate of interest applicable to the applicable Borrowing or L/C Borrowing.  Nothing herein

 

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shall be deemed torelieve any Lender from its obligation to fulfill its Commitment or toprejudice any rights which the Administrative Agent or the Borrower may haveagainst any Lender as a result of any default by such Lender hereunder.

 

A notice of the Administrative Agent to any Lenderwith respect to any amount owing under this ***subsection (c)*** shall be conclusive, absentmanifest 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*** are notsatisfied 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 a representationby any Lender that it has obtained or will obtain the funds for any Loan or L/CAdvance in any particular place or manner.

 

**2.13****                        Sharing of Payments.**  If, otherthan as expressly provided elsewhere herein, any Lender shall obtain on accountof any Loan made by it, or any participation in the L/C Obligations held by it,any payment (whether voluntary, involuntary, through the exercise of any rightof set-off, or otherwise) by or for the account of the Borrower in excess ofits Pro Rata Share (or other share contemplated hereunder) thereof, such Lendershall immediately (a) notify the Administrative Agent of such fact, and (b)purchase from the other Lenders such participations in the Loans made by them,and/or such subparticipations in the participations in L/C Obligations held bythem, as shall be necessary to cause the Lenders to share the excess payment inrespect of 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 participation asfully as if such Lender were the direct creditor of the Borrower in the amountof 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.

 

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## **2.14**                        Extension of Termination Date.

## ** **

(a)                                  Notearlier than 45 days prior to, nor later than 35 days prior to, the TerminationDate then in effect, the Borrower may, upon notice to the Administrative Agent(which shall promptly notify the Lenders), request a 364-day extension of theTermination Date then in effect.  Nolater than 15 days after the giving by the Borrower of such notice to theAdministrative Agent, each Lender shall notify the Administrative Agent whetheror not it consents to such extension (which consent may be given or withheld insuch Lender’s sole and absolute discretion and, if given, shall not becomeirrevocable until the 30th day prior to the Termination Date then ineffect).  Any Lender not respondingwithin the above time period shall be deemed not to have consented to suchextension.  The Administrative Agentshall promptly, and in any event not less than 15 days prior to the TerminationDate then in effect, notify the Borrower and the Lenders of the Lenders’ responses.  If any Lender declines, or is deemed to havedeclined, to consent to such extension, the Borrower may cause any such Lenderto be replaced as a Lender pursuant to ***Section 10.16***at any time prior to the TerminationDate then in effect.

 

(b)                                 TheTermination Date shall be extended only if all Lenders (after giving effect toany replacements of the Lenders permitted herein) (the “***Consenting Lenders***”) have consentedthereto.  If so extended, theTermination Date, as to the Consenting Lenders, shall be extended to a date 364days from the Termination Date then in effect, effective as of the TerminationDate then in effect (such existing Termination Date being the “***Extension Effective Date***”).  The Administrative Agent and the Borrowershall promptly confirm to the Lenders such extension and the ExtensionEffective Date.  As a conditionprecedent to such extension, the Borrower shall deliver to the AdministrativeAgent a certificate of the Borrower dated as of the Extension Effective Date(in sufficient copies for each Lender) signed by a Responsible Officer of theBorrower certifying (which certification shall be true and correct) that,before and after giving effect to such extension, (A) the representations andwarranties contained in ***Article V*** and each Compliance Certificate are true andcorrect on and as of the Extension Effective Date, except to the extent thatsuch representations and warranties specifically refer to an earlier date, inwhich case they were true and correct as of such earlier date, and (B) noDefault or Event of Default exists.

 

(c)                                  This***Section 2.14*** shallsupersede any provisions in ***Section 10.01*** to the contrary.

 

**2.15****                        Conversion to Term Loan.**  The Borrower shall have the option to convert the OutstandingAmount of the Loans on the Termination Date (after giving effect to anyrepayments on the Termination Date) to a Term Loan maturing one year after theTerm Conversion Date. From and after such conversion, the Term Loan may beprepaid but not reborrowed. Such conversion to a Term Loan is subject to and onthe terms and conditions set forth below:

 

(a)                                Nosooner than 90 days (and not later than 10 days) preceding the TerminationDate, the Borrower shall deliver to the Administrative Agent a Term ConversionElection in the form of ***Exhibit B*** (a “***Term Conversion Election***”), which shall (i) specify theBorrower’s election to convert the Outstanding Amount of the Loans to a TermLoan on the Term Conversion Date, (ii) specify the amount of the OutstandingAmount of the Loans to be converted to a Term Loan on the Term Conversion Date,and (iii) certify that no Default or Event of Default exists on the date theTerm Conversion Request is delivered.

 

(b)                               Asa condition precedent to such conversion, the Borrower shall deliver to theAdministrative Agent a certificate of the Borrower in the form of ***Exhibit C*** datedas of the Term Conversion Date (in sufficient copies for each Lender) signed bya Responsible Officer of the Borrower and certifying (which certification shallbe true and correct) that, before and after giving effect to such conversion,(A) the representations and warranties contained in ***Article V*** (other than ***Sections 5.04,***

 

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***5.05(b),******5.06, 5.07(a),***and ***5.09***) and each Compliance Certificate aretrue and correct on and as of the Term Conversion Date, except to the extentthat such representations and warranties specifically refer to an earlier date,in which case they were true and correct as of such earlier date, and (B) noDefault or Event of Default exists.

 

# ** **

# **ARTICLE III.**TAXES, YIELD, PROTECTION ANDILLEGALITY

# ** **

## **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 its overallnet income (including branch profits tax), and franchise taxes imposed on it bythe 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***”).

 

(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) thatthe Administrative Agent or such Lender would have received if such Taxes orOther 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

 

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whether or not such Taxesor Other Taxes were correctly or legally imposed or asserted by the relevantGovernmental Authority.  Payment underthis ***subsection (d)*** shallbe made within 30 days after the date the Lender or the Administrative Agentmakes 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 theBorrower or with respect to which the Borrower has paid additional amountspursuant to this ***Section 3.01***,it shall 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 Other Taxesgiving rise to such refund), net of all reasonable out-of-pocket expenses ofsuch 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.**  If any Lender determines that any Law hasmade it unlawful, or that any Governmental Authority has asserted that it isunlawful, for any Lender or its applicable Lending Office to make, maintain, orfund Eurodollar Rate Loans, or materially restricts the authority of suchLender to purchase or sell, or to take deposits of, Dollars in the applicableoffshore Dollar market, or to determine or charge interest rates based upon theEurodollar Rate, then, on notice thereof by such Lender to the Borrower throughthe Administrative Agent, any obligation of such Lender to make or continueEurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loansshall be suspended until such Lender notifies the Administrative Agent and theBorrower that the circumstances giving rise to such determination no longerexist.  Upon receipt of such notice, theBorrower shall, upon demand from such Lender (with a copy to the AdministrativeAgent), prepay or, if applicable, convert all Eurodollar Rate Loans of suchLender to Base Rate Loans, either on the last day of the Interest Periodtherefor, if such Lender may lawfully continue to maintain such Eurodollar RateLoans to such day, or immediately, if such Lender may not lawfully continue tomaintain such Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower shall also payinterest on the amount so prepaid or converted.  Each Lender agrees to designate a different Lending Office ifsuch designation will avoid the need for such notice and will not, in the goodfaith judgment of such Lender, otherwise be materially disadvantageous to suchLender.

 

**3.03****                        Inability to Determine Rates.**  If the Administrative Agent determines, inconnection 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 Interest Periodof such Eurodollar Rate Loan, (b) Required Lenders determine that for anyreason adequate and reasonable means do not exist for determining theEurodollar Rate for any required Interest Period with respect to a proposedEurodollar Rate Loan, or (c) that the Eurodollar Rate for any requestedInterest Period with respect to a proposed Eurodollar Rate Loan does not adequatelyand fairly reflect the cost to the Lenders of funding such Eurodollar RateLoan, the Administrative Agent will promptly notify the Borrower and eachLender.  Thereafter, the obligation ofthe Lenders to make or maintain Eurodollar Rate Loans shall be suspended untilthe Administrative 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.

 

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## **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 the foregoing(excluding for purposes of this ***subsection (a)*** any such increased costs or reduction inamount resulting from (i) Taxes or Other Taxes (as to which ***Section 3.01*** shallgovern), (ii) changes in the basis of taxation of overall net income or overallgross 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)***, thenfrom time to time upon demand of such Lender (with a copy of such demand to theAdministrative Agent), the Borrower shall pay to such Lender such additionalamounts as will compensate such Lender for such increased cost or reduction.

 

(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 give notice15 days prior to the relevant Interest Payment Date, such additional interestshall 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.

 

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

 

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

 

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(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 calculating amounts payable by theBorrower to the Lenders under this ***Section 3.05***, each Lender shall be deemed to have fundedeach Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by amatching deposit or other borrowing in the applicable London interbankeurodollar market for a comparable amount and for a comparable period, whetheror not such Eurodollar Rate Loan was in fact so funded.

 

## **3.06**                        Matters Applicable to all Requests forCompensation.

## ** **

(a)                                  Acertificate of the Administrative Agent or any Lender to the Borrower, claimingcompensation under this ***Article III*** and setting forth in reasonable detail theadditional amount or amounts to be paid to it hereunder and the basis for theclaim, 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.**  All of the Borrower’s obligations under this***Article III*** shallsurvive termination of the Commitments and payment in full of all the otherObligations.

 

# **ARTICLEIV.**CONDITIONS PRECEDENT

# ** **

**4.01****                        Conditions to Closing.**  This Agreement shall not become effective unless the followingconditions precedent are satisfied:

 

(a)                                  Unlesswaived by all the Lenders, the Administrative Agent’s receipt of the following,each of which shall be originals or facsimiles (followed promptly byoriginals), each of which shall be dated the Closing Date (or, in the case ofcertificates of governmental officials, 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;

 

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(iii)                               aSecretary’s Certificate in the form of Exhibit G, signed by theResponsible Officers named therein;

 

(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 H;***

 

(vii)                           evidencethat the Existing Credit Agreement has been or concurrently with the ClosingDate is being terminated and that all amounts owing thereunder have been repaidin 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 theAdministrative Agent incurred 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*** shall betrue and correct on and as of the Closing Date.

 

(e)                                TheClosing Date shall have occurred on or before July 30, 2003.

 

**4.02****                        Conditions to all Credit Extensions.**  The obligation of each Lender to honor anyRequest 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***(other than***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

 

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the date of such Credit Extension, except to theextent that such representations and warranties specifically refer to anearlier date, in which case they shall be true and correct as of such earlierdate;

 

(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 Credit Extension (other than a LoanNotice requesting only a conversion of a Borrowing to the other Type or acontinuation of a Eurodollar Rate Loan) submitted by the Borrower shall bedeemed to be a representation and warranty that the conditions specified inthis ***Section 4.02***havebeen satisfied on and as of the date of the applicable Credit Extension.

 

# **ARTICLEV.**REPRESENTATIONS AND WARRANTIES

# ** **

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

 

**5.01****                        Existence, Qualification, and Power; Compliance with Laws.**  The Borrower and each of its Subsidiaries(a) is an entity duly organized or formed, validly existing, and in goodstanding under the Laws of the jurisdiction of its incorporation ororganization, (b) has all requisite power and 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 failure todo so would not reasonably be expected to have a Material Adverse Effect.

 

**5.02****                        Authorization; No Contravention.**  The execution, delivery, and performance bythe 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 creationof any Lien under, any material Contractual Obligation to which the Borrower isa party 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 whichhas not 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, when deliveredhereunder, will have been duly executed and delivered by the Borrower.  This Agreement constitutes, and each otherLoan Document when so delivered will constitute, a legal, valid, and binding

 

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obligation of theBorrower, enforceable against the Borrower in accordance with its terms, exceptas enforceability may be limited by general principles of equity and applicableDebtor Relief Laws.

 

**5.05****                        Financial Statements; No Material Adverse Effect.**  (a) The Current Financials (i) were preparedin accordance with GAAP throughout the period covered thereby, except asotherwise expressly noted therein, (ii) fairly present, in all materialrespects, the financial condition of the Borrower and its Subsidiaries as ofthe date thereof and their results of operations for the period covered therebyin accordance with GAAP throughout the period covered thereby, except asotherwise expressly noted therein, and (iii) show all material indebtedness andother liabilities, direct or contingent, of the Borrower and its Subsidiariesas of the date thereof, including liabilities for taxes, material commitments,and Indebtedness in accordance with GAAP throughout 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.**  There are no actions, suits, proceedings,investigations, claims, or disputes pending or, to the knowledge of theBorrower after due inquiry, threatened or contemplated, at law, in equity, inarbitration or before any Governmental Authority, by or against the Borrower orany of its Subsidiaries or against any of their properties or revenues which(a) purport to affect or pertain to this Agreement or any other Loan Document,or any of the lending transactions contemplated hereby, or (b) either individuallyor in the aggregate would reasonably be expected to have a Material AdverseEffect.

 

**5.07****                        No Default.**  (a) Neither the Borrower nor any Subsidiaryis in default under or with respect to any Contractual Obligation which could,either individually or in the aggregate, be reasonably expected to have aMaterial Adverse Effect; and (b) no Default or Event of Default has occurredand is continuing or would result from the consummation of the transactionscontemplated by this Agreement or any other Loan Document.

 

**5.08****                        Ownership of Property; Liens.**  Each of the Borrower and each Subsidiary hasgood and marketable title in fee simple to, or valid leasehold interests in,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 Subsidiaries conduct in the ordinary courseof business a review of the effect of existing Environmental Laws and claimsalleging potential liability or responsibility for violation of anyEnvironmental Law on their respective businesses, operations and properties,and as a result thereof the Borrower has reasonably concluded that suchEnvironmental Laws and claims would not, individually or in the aggregate,reasonably be expected to have a Material Adverse Effect.

 

**5.10****                        Taxes.**  The Borrowerand its Subsidiaries have filed all federal, state, and other material taxreturns and reports required to be filed, and have paid all material federal,state, and other taxes, assessments, fees, and other governmental chargeslevied or imposed upon them or their properties, income, or assets otherwisedue and payable, except those which are being contested in good faith byappropriate 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.

 

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**5.11****                        ERISA Compliance.**** **Exceptto the extent that any such event, condition, claim, action, lawsuit,violation, prohibited transaction, application, contribution, or liability,individually or when aggregated with any other event, condition, claim, action,lawsuit, violation, prohibited transaction, application, contribution, orliability contemplated by this *Section 5.11*, would not reasonably beexpected to result in a Material Adverse Effect or liabilities (individually orin 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 applicationfor a funding waiver or an extension of any amortization period pursuant to *Section 412*ofthe**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 *Section4007*of**ERISA), other than such liabilities which have beendischarged on or prior to the Closing Date, (iv) neither the Borrower nor anyERISA 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; Investment Company Act; PublicUtility 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*.

 

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**5.13****                        Rank of Debt.**  The Obligations are “*Senior Debt*” and willconstitute direct, unconditional, and general obligations of the Borrowerranking prior to or pari passu in all respects with all of the Borrower’s otherIndebtedness, 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 untrue statementof a material fact. There is no fact known to the Borrower which couldreasonably be expected to have a Material Adverse Effect and which has not beendisclosed to the Lenders in writing.

 

**5.15****                        Tax Shelter Regulations.**  The Borrower does not intend to treat the Loans and/or Letters ofCredit and related transactions as being a “*reportable transaction*” (within themeaning of Treasury Regulation*Section 1.6011-4*).  In the event the Borrower determines to takeany action inconsistent with such intention, it will promptly notify theAdministrative Agent thereof.  If theBorrower so notifies the Administrative Agent, the Borrower acknowledges thatone or more of the Lenders may treat its Loans and/or its participations inLetters of Credit as part of a transaction that is subject to TreasuryRegulation*Section 301.6112-1*, and such Lender or Lenders, as applicable, willmaintain the lists and other records required by such Treasury Regulation.

 

# **ARTICLEVI.**AFFIRMATIVE COVENANTS

# ** **

So long as any Lender shall have any Commitmenthereunder, any Loan or Obligation shall remain unpaid or unsatisfied, or anyLetter of Credit shall remain outstanding, the Borrower shall, and shall(except in the case of the covenants set forth in ***Sections 6.01***, ***6.02***, ***6.03***, ***6.04(a),*** and ***6.11***) cause each Subsidiary to:

 

**6.01****                        Financial Statements.   **Deliverto 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 generally accepted auditingstandards and shall not be subject to any “*going concern*” or like qualification orexception or any qualification or exception as to the scope of the audit nor toany qualifications and exceptions not reasonably acceptable to theAdministrative 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):

 

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(a)                                  concurrentlywith the delivery of the financial statements referred to in ***Section 6.01(a)***, acertificate 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, ifany such Default or Event of Default shall exist, stating the nature and statusof 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-3 thatthe Borrower may file under the *Securities Exchange Act of 1934*;

 

(e)                                  promptlyafter the Borrower has notified the Administrative Agent of any intention bythe Borrower to treat the Loans and/or Letters of Credit and relatedtransactions as being a “*reportable transaction*” (within themeaning of Treasury Regulation *Section 1.6011-4*), a duly completed copyof IRS Form 8886 or any successor form; and

 

(f)                                    assoon as reasonably practicable, such additional information, in form and detailreasonably satisfactory to the Administrative Agent or the Lender requestingthe information 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.

 

## **6.03**                        Notices.

## ** **

Notify the Administrative Agent no later than fiveBusiness Days after a Responsible Officer of the Borrower has knowledge:

 

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

 

(b)                                 ofany matter that has resulted in a Material Adverse Effect or would reasonablybe expected to have a Material Adverse Effect;

 

(c)                                  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,

 

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or (ii) in which injunctive relief or similar relief is sought,which would be reasonably expected to have a Material Adverse Effect; and

 

(d)                                 ofthe occurrence of any material ERISA Event.

 

Each notice pursuant to this ***Section 6.03*** shall be accompanied by astatement of a Responsible Officer of the Borrower setting forth details of theoccurrence referred to therein and stating what action the Borrower has takenand proposes to take with respect thereto, accompanied by copies of any noticeor report of, or with respect to, any Reportable Event received by the Borroweror any Subsidiary or given by the Borrower or any Subsidiary to the PBGC.  Each notice pursuant to ***Section 6.03(a)*** shall describe theprovisions of this Agreement or other Loan Document that have been breached.

 

**6.04****                        Payment of Obligations.**  (a) Pay the Obligations in accordance with the terms andprovisions of the Loan Documents, and (b) pay and discharge, as the same shallbecome due and payable, all its obligations and liabilities, including (i) alltax liabilities, assessments, and governmental charges or levies upon it or itsproperties or assets, unless the same are being contested in good faith byappropriate proceedings diligently conducted and adequate reserves in accordancewith GAAP are being maintained by the Borrower or such Subsidiary, (ii) alllawful claims which, if unpaid, would by law become a Lien upon its property,and (iii) all Indebtedness, as and when due and payable, but subject to anysubordination provisions contained in any instrument or agreement evidencingsuch Indebtedness, except, in each case under the preceding ***clauses (b)(i), (b)(ii),***and ***(b)(iii),*** to theextent such non-payment would not reasonably be expected to have a MaterialAdverse Effect.

 

**6.05****                        Preservation of Existence, Etc.**  (a) Preserve, renew, and maintain in fullforce and effect its legal existence and good standing under the Laws of thejurisdiction 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 all ofits 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 and reputable insurance companiesnot Affiliates of the Borrower, insurance with respect to its properties andbusiness against loss or damage of the kinds customarily insured against byPersons engaged in the same or similar business, of such types and in suchamounts as are customarily carried under similar circumstances by such otherPersons; *providedthat* the Borrower or its Subsidiaries may maintain self-insurance inconnection with the foregoing property insurance requirements, *so long as*the same is maintained in accordance with sound business practices.

 

**6.08****                        Compliance with Laws.**  Comply inall material respects with the requirements of all Laws applicable to it or toits business or property, except in such instances in which (i) suchrequirement of Law is being contested in good faith or a bona fide disputeexists with respect thereto, or (ii) the failure to comply therewith would notbe reasonably expected to have a Material Adverse Effect.

 

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

 

**6.10****                        Inspection Rights.**  Permitrepresentatives and independent contractors of the Administrative Agent andeach Lender to visit and inspect any of its properties, to examine itscorporate, financial and operating records, and make copies thereof orabstracts therefrom, and to discuss its affairs, finances, and accounts withits directors, officers, and independent public accountants, all at the expenseof the Borrower and at such reasonable times during normal business hours andas often as may be reasonably desired, upon reasonable advance written noticeto the Borrower; *provided that*, when an Event of Default exists, theAdministrative Agent or any Lender (or any of their respective representativesor independent contractors) may do any of the foregoing at the expense of theBorrower at any time during normal business hours and without advance notice.

 

**6.11****                       ****Use of Proceeds.** Use the proceeds of the Credit Extensions forworking capital and other general corporate purposes, including capitalexpenditures, acquisitions, and the provision of liquidity in connection withany commercial paper program of the Borrower.

 

# **ARTICLEVII.**NEGATIVE COVENANTS

# ** **

So long as any Lender shall have any Commitmenthereunder, any Loan or Obligation shall remain unpaid or unsatisfied, or anyLetter of Credit shall remain outstanding:

 

**7.01****                        Liens.**  The Borrower shall not, nor shall it permitany Subsidiary to, directly or indirectly, create, incur, assume or suffer toexist, any Lien upon any of its property, assets, or revenues, whether nowowned or hereafter acquired, other than 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;

 

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(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 such Indebtedness,and (ii) the Indebtedness secured thereby does not exceed 100% of cost or fairmarket value, whichever is lower, of the property being acquired on the date ofacquisition;

 

(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.**  The Borrower shall not, directly orindirectly, create, incur, assume or suffer to exist 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, in anamount not to exceed the amount listed on ***Schedule 7.02***, and refinancings, refundings, renewals,extensions, and replacements of such Indebtedness that do not increase theoutstanding principal amount thereof at the time of such refinancing,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);

 

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(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 in an aggregate principal amount not toexceed $25,000,000 at any time outstanding;

 

(g)                                 Indebtednessof the Borrower not otherwise permitted by this ***Section 7.02***, *so long as* (i) noDefault or Event of Default exists on the date any such Indebtedness iscreated, incurred, assumed, or arises after giving effect to such incurrence ofIndebtedness, (ii) such Indebtedness is unsecured, and (iii) such Indebtednessshall not have a claim on any assets or earnings of the Borrower or itsSubsidiaries ranking prior to the Obligations; and

 

(h)                                 Indebtednessof the Borrower arising under one or more surety bonds issued or obtained inthe ordinary course of business in an aggregate principal amount not to exceed$25,000,000 at any time outstanding.

 

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

 

(a)                                  Indebtednessexisting on the date hereof and listed on ***Schedule 7.02*** as Indebtedness of a Subsidiary, in anamount not to exceed the amount listed on ***Schedule 7.02***, and refinancings, refundings, renewals,extensions, and replacements of such Indebtedness that do not increase theoutstanding principal amount thereof at the time of such refinancing,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) suchIndebtedness was notincurred in contemplation of such acquisition, merger, or consolidation,(ii) no Event of Default or Default then exists or arises as a resultthereof, and (iii) no other Subsidiary (other than the existing obligors at thetime such Person or asset was acquired) shall have or incur any direct orindirect liability for such Indebtedness;and

 

(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

 

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(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 anything in this ***Section 7.03*** to the contrary, the aggregate principalamount of all Indebtedness of the Subsidiaries, without duplication, may notexceed, on any date of determination, 20% of the book value of the consolidatedassets of the Borrower and the Subsidiaries, determined as of the date of theAudited Financial Statements; *provided that,* if the Termination Date isextended pursuant to ***Section 2.14***, such book value of the consolidated assetsof the Borrower and its Subsidiaries will be determined as of the date of, andwith respect to, the Current Financials most recently delivered prior to theExtension Effective Date pursuant to ***Section 6.01(a)***.

 

## **7.04**                        Fundamental Changes.

## ** **

(a)                                  TheBorrower will not:

 

(i)  consolidate with or merge with or into anyother Person, unless the Borrower or a Permitted Successor Corporation shall bethe continuing or surviving corporation;

 

(ii)  Dispose of (or permit its Subsidiaries toDispose of, including Dispositions by mergers of Subsidiaries with non-whollyowned Subsidiaries or unrelated third parties), whether in one transaction orin any series of related transactions arising on or after the date of thisAgreement, more than fifty percent (50%) of the book value of the consolidatedassets of the Borrower and the Subsidiaries; or

 

(iii)  except as permitted by ***subsection (b)(ii)*** below, consolidate,merge, Dispose of assets, or permit its Subsidiaries to Dispose of assets intransactions otherwise permitted under this ***subsection (a)*** if prior to andimmediately 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) anyDisposition by any Subsidiary of properties and assets to the Borrower or toany other wholly-owned Subsidiary or (B) the merger or consolidation ofany Subsidiary into either the Borrower or any other wholly-owned Subsidiary;and

 

(ii)                                  anyDisposition of (A) obsolete or worn-out property or real property nolonger used or useful in the business of the Borrower or its Subsidiaries,(B) delinquent accounts receivable in the ordinary course of business forpurposes of collection, and (C) inventory in the ordinary course ofbusiness.

 

(c)                                  Forpurposes of ***subsection (a)(ii)***,the book value of the consolidated assets of the Borrower and its Subsidiarieswill be determined as of the date of, and with respect to, the AuditedFinancial Statements; *provided that,* if the Termination Date isextended pursuant to ***Section 2.14***, such book value of the consolidated assetsof the Borrower and its Subsidiaries will be determined as of the date of, andwith respect to, the Current Financials most recently delivered prior to theExtension Effective Date pursuant to ***Section 6.01(a)***, and the provisions of the preceding ***subsection (a)***,******will apply totransactions arising on or after the Extension Effective Date.

 

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**7.05****                        Change in Nature of Business.**  The Borrower shall not, nor shall it permitany  Subsidiary to, directly orindirectly, engage in any material line of business substantially differentfrom those lines of business conducted by the Borrower and its Subsidiaries onthe date hereof.

 

**7.06****                        Transactions with Affiliates.**  The Borrower shall not, nor shall it permitany Subsidiary to, directly or indirectly, enter into any transaction or seriesof transactions during any fiscal year for which the aggregate amount exceeds$60,000 with any Affiliate of the Borrower or any Subsidiary, whether or not inthe ordinary course of business, other than on commercially reasonable terms.

 

**7.07****                        Burdensome Agreements.**  The Borrower shall not, nor shall it permit any Subsidiary to,directly or indirectly, enter into any Contractual Obligation (other than thisAgreement) that:

 

(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) customaryrestrictions and limitations contained in agreements relating to the sale of aSubsidiary or its assets that is permitted hereunder, and (z) otherrestrictions and limitations that could not reasonably be expected to impairthe Borrower’s ability to repay the 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 of Proceeds.**  TheBorrower shall not permit any part of the proceeds of any Credit Extension tobe used, directly or indirectly, in any manner that might cause the CreditExtension or the application of such proceeds to violate *Regulations T*, *U*,or *X*or any other regulation of the Board or to violate the *Securities Act of 1933*.

 

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

 

# **ARTICLEVIII.**EVENTS OF DEFAULT AND REMEDIES

# ** **

## **8.01**                        Events of Default.

## ** **

Any of the following shall constitute an Event ofDefault:

 

(a)                                  Non-Payment.  The Borrower fails to pay within threeBusiness Days after the same becomes due, (i) any amount of principal of anyLoan or any L/C Borrowing, or (ii) any interest on any

 

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Loan or any L/C Borrowing, any Facility Fee, or anyUtilization Fee, or (iii) any other fee, including any Letter of Credit Fee, oramount invoiced to the Borrower and payable hereunder or under any other LoanDocument; 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(f), 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 Borrower hasknowledge of such failure or written notice thereof to the Borrower from theAdministrative Agent 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) Any representation,warranty, certification, or statement of fact made or deemed made by theBorrower herein or in any other Loan Document that contains a materialityqualifier shall be incorrect or misleading when made or deemed made, or (ii)any other representation, warranty, certification, or statement of fact made ordeemed made by the Borrower herein or in any other Loan Document that does notcontain a materiality qualifier shall be incorrect or misleading in anymaterial 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 anypayment when due (whether by scheduled maturity, required prepayment,acceleration, demand, or otherwise) beyond the applicable grace period withrespect thereto (if any), and the principal amount (individually or in theaggregate) of such payments exceeds $250,000,000; or

 

(B) (1)  fails to observe or perform any otheragreement or condition relating to any such Indebtedness or Guaranty Obligationor any instrument or agreement evidencing, securing, or relating thereto, orany other event occurs, the effect of which default or other event is to cause,or to permit the holder or holders of such Indebtedness or the beneficiary orbeneficiaries of such Guaranty Obligation (or a trustee on behalf of suchholder or holders or beneficiary or beneficiaries) to cause, with the giving ofnotice if required, (x) such Indebtedness to be demanded or to become due, tobe repurchased, prepaid, defeased, or redeemed (automatically or otherwise), oran offer to repurchase, prepay, defease, or redeem such Indebtedness to bemade, in each case, prior to its stated maturity; or (y) any such GuarantyObligation to become payable or cash collateral in respect thereof to bedemanded; and (2) in any such event, the principal amount (individually or inthe aggregate) of all such Indebtedness and Guaranty Obligations described in ***clause (1)*** precedingexceeds $250,000,000; or

 

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(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

 

(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 as to which theinsurer does not dispute coverage), or (ii) any non-monetary final judgmentthat has, or would reasonably be expected to have, a Material Adverse Effectand, in the case of either ***clause (i)*** or ***clause (ii)***, (A) enforcement proceedings arecommenced by any creditor upon such judgment or order, or (B) there is a periodof 30 consecutive days during which a stay of enforcement of such judgment, byreason of 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, afterthe expiration of any applicable grace period, any installment payment withrespect to 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 Arranger 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, in the case of the Bank ofAmerica Fee Letter, and the Arrangers, in the case of the Arranger Fee Letter)or upon satisfaction in full of all the Obligations), ceases to be in full

 

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force and effect and such failure continues for 30days after written notice thereof from Administrative Agent to the Borrower, or(ii) the Borrower or any other Person contests in any manner the validity orenforceability of this Agreement, any Note, any Letter of Credit Application,the Arranger Fee Letter, or the Bank of America Fee Letter, or (iii) theBorrower denies that it has any further liability or obligation under thisAgreement, any Note, any Letter of Credit Application, the Arranger Fee Letter,or the Bank of America Fee Letter, or purports to revoke, terminate, or rescindthis Agreement, any Note, any Letter of Credit Application, the Arranger FeeLetter, or the Bank of America Fee Letter.

 

**8.02****                        Remedies Upon Event of Default.**  If any Event of Default occurs and iscontinuing, the Administrative Agent shall, at the request of, or may, with theconsent of, the Required Lenders, take any of the following 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;

 

*providedthat*, upon the occurrence of any event 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****                        Application of Funds.**  Afterexercise of remedies 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***), anyamounts received on account of the Obligations shall be applied by theAdministrative Agent in the following order:

 

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

 

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

 

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

 

*Sixth*,to payment 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*,the balance, if any, after all of the Obligations have been indefeasibly paidin full, to the Borrower or as otherwise required by Law.

 

Subject to ***Section 2.03(c)***,amounts used to Cash Collateralize the aggregate undrawn amount of Letters 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.

 

# **ARTICLEIX.**AGREEMENT AMONG LENDERS

# ** **

## **9.01**                        Appointment and Authorization ofAdministrative Agent.

## ** **

(a)                                  EachLender hereby irrevocably (subject to ***Section 9.09***) appoints, designates, and authorizes theAdministrative Agent to take such action on its behalf under the provisions ofthis 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 relationshipwith any 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 the AdministrativeAgent.  Without limiting the generalityof the foregoing sentence, the use of the term “*agent*” herein and in theother Loan Documents with reference to the Administrative Agent is not intendedto connote any fiduciary or other implied (or express) obligations arisingunder agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and isintended to create or reflect only an administrative relationship betweenindependent 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 or omissionssuffered by the L/C Issuer in connection with Letters of Credit issued by it orproposed to be

 

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issued by it and the Letter of Credit Applications pertaining to suchLetters of Credit as fully as if the term “*Administrative Agent*” as used in this ***Article IX*** and in thedefinition of “*Agent-Related Person*” included the L/C Issuer with respectto such acts or omissions, and (ii) as additionally provided herein withrespect to the L/C Issuer.

 

**9.02****                        Delegation of Duties.**  TheAdministrative Agent may execute any of its duties under this Agreement or anyother Loan Document by or through agents, employees, or attorneys-in-fact andshall be entitled to advice of counsel and other consultants or expertsconcerning all matters pertaining to such duties.  The Administrative Agent shall not be responsible for thenegligence or misconduct of any agent or attorney-in-fact that it selects inthe absence of gross negligence or willful misconduct.

 

**9.03****                        Liability of Agent-Related Persons.**  No Agent-Related Person shall (a) be liablefor any action taken or omitted to be taken by any of them under or inconnection with this Agreement or any other Loan Document or the transactionscontemplated hereby (except for its own gross negligence or willful misconductin connection with its duties expressly set forth herein), or (b) beresponsible in any manner to any Lender or participant for any recital,statement, representation, or warranty made by the Borrower or any officerthereof, contained herein or in any other Loan Document, or in any certificate,report, statement, or other document referred to or provided for in, orreceived 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**                        Reliance by 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 tohave been signed, sent, or made by the proper Person or Persons, and uponadvice and statements of legal counsel (including counsel to the Borrower),independent accountants and other experts selected by the AdministrativeAgent.  The Administrative Agent shallbe fully justified in failing or refusing to take any action under any LoanDocument unless it shall first receive such advice or concurrence of theRequired Lenders as it deems appropriate and, if it so requests, it shall firstbe indemnified 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.  The AdministrativeAgent shall in all cases be fully protected in acting, or in refraining fromacting, under this Agreement or any other Loan Document in accordance with arequest or consent of the Required Lenders (or such greater number of Lendersas may be expressly required hereby in any instance), if required hereunder,and such request and any action taken or failure to act pursuant thereto shallbe binding upon all the Lenders.

 

(b)                                 Forpurposes of determining compliance with the conditions specified in ***Section 4.01***,each Lender that has signed this Agreement shall be deemed to have consentedto, approved, or accepted or to be satisfied with, each document or othermatter as required thereunder to be consented to or approved by or acceptableor satisfactory to a Lender unless the Administrative Agent shall have receivednotice from such Lender prior to the proposed Closing Date specifying itsobjection thereto.

 

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**9.05****                        Notice of Default.**  TheAdministrative Agent shall not be deemed to have knowledge or notice of theoccurrence of any Default or Event of Default, except with respect to defaultsin the payment of principal, interest, and fees required to be paid to theAdministrative Agent for the account of the Lenders, unless the AdministrativeAgent shall have received written notice from a Lender or the Borrowerreferring to this Agreement, describing such Default or Event of Default andstating that such notice is a “*notice of default*.”  The Administrative Agent will notify theLenders of its receipt of any such notice. The Administrative Agent shall take such action with respect to suchDefault or Event of Default as may be directed by the Required Lenders inaccordance with ***Article VIII***;*providedthat*, unless and until the Administrative Agent has received anysuch direction, the Administrative Agent may (but shall not be obligated to)take such action, or refrain from taking such action, with respect to suchDefault or Event of Default as it shall deem advisable or in the best interestof the Lenders.

 

**9.06****                        Credit Decision; Disclosure ofInformation by Administrative Agent and Syndication Agent.**  Each Lender acknowledges that noAgent-Related Person has made any representation or warranty to it, and that noact by the Administrative Agent or the Syndication Agent hereafter taken,including any consent to and acceptance of any assignment or review of theaffairs of the Borrower or any Affiliate thereof, shall be deemed to constituteany representation or warranty by any Agent-Related Person to any Lender as toany matter, including whether Agent-Related Persons have disclosed materialinformation in their possession.  EachLender represents to the Administrative Agent and the Syndication Agent that ithas, independently and without reliance upon any Agent-Related Person and basedon such documents and information as it has deemed appropriate, made its ownappraisal of and investigation into the business, prospects, operations,property, financial, and other condition and creditworthiness of the Borrowerand its respective Subsidiaries, and all applicable bank or other regulatoryLaws relating to the transactions contemplated hereby, and made its owndecision to enter into this Agreement and to extend credit to the Borrowerhereunder.  Each Lender also representsthat it will, independently and without reliance upon any Agent-Related Personand based on such documents and information as it shall deem appropriate at thetime, continue to make its own credit analysis, appraisals, and decisions intaking or not taking action under this Agreement and the other Loan Documents,and to make such investigations as it deems necessary to inform itself as tothe business, prospects, operations, property, financial, and other conditionand creditworthiness of the Borrower. Except for notices, reports, and otherdocuments expressly required to be furnished to the Lenders by theAdministrative Agent herein, neither the Administrative Agent nor theSyndication Agent, as applicable, shall have any duty or responsibility to provideany Lender with any credit or other information concerning the business,prospects, operations, property, financial, and other condition orcreditworthiness of the Borrower or any of its respective Affiliates which maycome into the possession of any Agent-Related Person.

 

**9.07****                        Indemnification of Agent-RelatedPersons.**  Whether or not the transactions contemplatedhereby are consummated, the Lenders shall indemnify upon demand eachAgent-Related Person (to the extent not reimbursed by or on behalf of the Borrowerand without limiting its obligation to do so), in accordance with their ProRata Shares, and hold harmless each Agent-Related Person from and against anyand all Indemnified Liabilities incurred by it; *provided that* no Lendershall be liable for the payment to any Agent-Related Person of any portion ofsuch Indemnified Liabilities to the extent determined in a final, nonappealablejudgment by a court of competent jurisdiction to have resulted from suchAgent-Related Person’s own gross negligence or willful misconduct or from suchAgent-Related Person’s breach of this Agreement; *provided that*no actiontaken in accordance with the directions of the Required Lenders (or suchgreater number of Lenders as may be expressly required hereby in any instance)shall be deemed to constitute gross negligence or willful misconduct forpurposes of this ***Section 9.07***.  Without limitation of the foregoing, eachLender shall reimburse the Administrative Agent upon demand for its Pro RataShare of any costs or out-of-pocket expenses (including attorneys’ fees)

 

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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 theAdministrative Agent is not reimbursed for such expenses by or on behalf of theBorrower.  The undertaking in this ***Section 9.07***shall survive termination of the Commitments, the payment of all Obligationshereunder, and the resignation or replacement of the Administrative Agent orthe Syndication Agent.

 

**9.08****                        Administrative Agent in its IndividualCapacity.**  Bank of America and its Affiliates may makeloans to, issue letters of credit for the account of, accept deposits from,acquire equity interests in and generally engage in any kind of banking, trust,financial advisory, underwriting, or other business with the Borrower and itsrespective Affiliates as though Bank of America were not the AdministrativeAgent or the L/C Issuer hereunder and without notice to or consent of theLenders.  The Lenders acknowledge that,pursuant to such activities, Bank of America or its Affiliates may receiveinformation regarding the Borrower or its Affiliates (including informationthat may be subject to confidentiality obligations in favor of the Borrower orsuch Affiliate) and acknowledge that the Administrative Agent shall be under noobligation to provide such information to them.  With respect to its Loans, Bank of America shall have the samerights and powers under this Agreement as any other Lender and may exercisesuch rights and powers as though it were not the Administrative Agent or theL/C Issuer, and the terms “*Lender*” and “*Lenders*” include Bank ofAmerica in its individual capacity.

 

**9.09****                        Successor Administrative Agent.**  The Administrative Agent may resign asAdministrative Agent upon 30 days’ notice to the Lenders; provided that anysuch resignation by Bank of America shall also constitute its resignation asL/C Issuer.  If the Administrative Agentresigns under this Agreement, the Required Lenders shall appoint from among theLenders a successor administrative agent for the Lenders which successoradministrative agent shall be consented to by the Borrower at all times otherthan during the existence of an Event of Default (which consent of the Borrowershall not be unreasonably withheld or delayed).  If no successor administrative agent is appointed prior to theeffective date of the resignation of the Administrative Agent, the AdministrativeAgent may appoint, after consulting with the Lenders and the Borrower, asuccessor administrative agent from among the Lenders.  Upon the acceptance of its appointment assuccessor administrative agent hereunder, such Person acting as such successoradministrative agent shall succeed to all the rights, powers, and duties of theretiring Administrative Agent and L/C Issuer and the respective terms “*AdministrativeAgent*” and “*L/C Issuer*” shall mean such successoradministrative agent and Letter of Credit issuer, and the retiringAdministrative Agent’s appointment, powers and duties as Administrative Agentshall be terminated and the retiring L/C Issuer’s rights, powers, and duties assuch shall be terminated, without any other or further act or deed on the partof such retiring L/C Issuer or any other Lender, other than the right of theretiring L/C Issuer to require the successor L/C Issuer to issue letters ofcredit in substitution for the Letters of Credit, if any, outstanding at thetime of such succession or to make other arrangements satisfactory to theretiring L/C Issuer to effectively assume the obligations of the retiring L/CIssuer with respect to such Letters of Credit. After any retiring Administrative Agent’s resignation hereunder asAdministrative Agent, the provisions of this ***Article IX*** and ***Sections 10.04*** and ***10.05*** shall inure to its benefit as to anyactions taken or omitted to be taken by it while it was Administrative Agentunder this Agreement.  If no successoradministrative agent has accepted appointment as Administrative Agent by thedate which is 30 days following a retiring Administrative Agent’s notice ofresignation, the retiring Administrative Agent’s resignation shall neverthelessthereupon become effective and the Lenders shall perform all of the duties ofthe Administrative Agent hereunder until such time, if any, as the RequiredLenders appoint a successor agent as provided for above.

 

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**9.10****                        Administrative Agent May File Proofs ofClaim.**  In case of the pendency of any receivership,insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,composition, or other judicial proceeding relative to the Borrower, theAdministrative Agent (irrespective of whether the principal of any Loan or L/CObligation shall then be due and payable as herein expressed or by declarationor otherwise and irrespective of whether the Administrative Agent shall havemade any demand on the Borrower) shall be entitled and empowered, byintervention in such proceeding or otherwise

 

(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 similar official in any such judicial proceeding ishereby authorized by each Lender to make such payments to the AdministrativeAgent and, in the event that the Administrative Agent shall consent to themaking of such payments directly to the Lenders, to pay to the AdministrativeAgent any amount due for the reasonable compensation, expenses, disbursements,and advances of the Administrative Agent and its agents and counsel, and anyother amounts due the Administrative Agent under ***Sections 2.09*** and ***10.04***.

 

Nothing contained herein shall be deemed to authorizethe Administrative Agent to authorize or consent to or accept or adopt, onbehalf of any Lender, any plan of reorganization, arrangement, adjustment, orcomposition affecting the Obligations or the rights of any Lender or toauthorize the Administrative Agent to vote in respect of the claim of anyLender in any such proceeding.

 

**9.11****                        Other Agents; Joint Book Runners, JointLead Arrangers.**  None of the Lendersor other Persons identified on the facing page or signature pages of thisAgreement as a “*syndication agent*,” “*documentation agent*,” “*joint bookrunners,*” or “*joint**lead arrangers*” shall have any obligation,liability, responsibility, or duty under this Agreement other than, in case ofsuch Lenders, those applicable to all Lenders as such.  Without limiting the foregoing, none of theLenders or other Persons so identified shall have or be deemed to have anyfiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, onany of the Lenders or other Persons so identified in deciding to enter intothis Agreement or in taking or not taking action hereunder.

 

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# **ARTICLEX.**MISCELLANEOUS

# ** **

**10.01****                 Amendments, Etc.** No amendment or waiver of any provision of this Agreement or any otherLoan Document, and no consent to any departure by the Borrower therefrom, shallbe effective unless in writing signed by the Required Lenders and the Borrower,as the case may be, and acknowledged by the Administrative Agent, and each suchwaiver or consent shall be effective only in the specific instance and for thespecific purpose for which given; *provided that* no such amendment, waiver,or consent shall, unless in writing and signed by each of the Lenders directlyaffected thereby and by the Borrower, and acknowledged by the AdministrativeAgent, do any of the following:

 

(a)                                  extendor increase the Commitment of any Lender (or reinstate any Commitmentterminated pursuant to ***Section 8.02***), other than an extension pursuant to ***Section 2.14***;

 

(b)                                 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 them) hereunder or under any other Loan Document;

 

(c)                                  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; *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;

 

(d)                                 changeany provision of this ***Section 10.01*** or 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 determinations or grant any consents hereunder; or

 

(e)                                  change***Section 2.13*** or ***Section 8.03*** in amanner that would alter the ratable sharing of payments required hereunder.

 

and, *provided,**further*, *that* (i) no amendment,waiver, or consent shall, unless in writing and signed by the AdministrativeAgent in addition to the Required Lenders or each affected Lender, as the casemay be, affect the rights or duties of the Administrative Agent under thisAgreement or any other Loan Document; (ii) no amendment, waiver, or consentshall, unless in writing and signed by the L/C Issuer in addition to theLenders required above, affect the rights or duties of the L/C Issuer underthis Agreement or any Letter of Credit Application relating to any Letter ofCredit issued or to be issued by it; and (iii) the Arranger Fee Letter and theBank of America Fee Letter may be amended, or rights or privileges thereunderwaived, in a writing executed only by the parties thereto.  Notwithstanding anything to the contraryherein, any Defaulting Lender shall not have any right to approve or disapproveany amendment, waiver, or consent hereunder, except that the Commitment of suchDefaulting Lender may not be increased or extended without the consent of suchDefaulting Lender.

 

## **10.02**                 Notices and Other Communications;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

 

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expressly permitted hereunder to be given by telephoneshall be made to the applicable telephone numbers, as follows:

 

(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.

 

All such notices and other communications shall bedeemed to be given or made upon the earlier to occur of (i) actual receipt bythe relevant party hereto and (ii) (A) if delivered by hand or by courier, whensigned for by or on behalf of the relevant party hereto; (B) if delivered bymail, four Business Days after deposit in the mails, postage prepaid; (C) ifdelivered by facsimile, when sent and receipt has been confirmed by telephone;and (D) if delivered by electronic mail (which form of delivery is subject tothe 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*** shall notbe effective until actually received by such Person.  In no event shall a voicemail message be effective 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 on eachnotice believed in good faith by such Agent-Related Person, the L/C Issuer, orsuch Lender to have been given by or on behalf of the Borrower.  All telephonic notices to and othercommunications with the Administrative Agent or the L/C Issuer may be recordedby the Administrative Agent or the L/C Issuer, and each of the parties heretohereby consents to such recording.

 

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**10.03****                 No Waiver; Cumulative Remedies.**  No failure by any Lender, the L/C Issuer, orthe Administrative Agent to exercise, and no delay by any such Person inexercising, any right, remedy, power or privilege hereunder shall operate as awaiver thereof, nor shall any single or partial exercise of any right, remedy,power, or privilege hereunder preclude any other or further exercise thereof orthe exercise of any other right, remedy, power or privilege.  The rights, remedies, powers, and privilegesherein or therein provided are cumulative and not exclusive of any rights,remedies, powers, and privileges provided by law.

 

**10.04****                 Attorneys’ Fees, Expenses and Taxes.**  The Borrower agrees (a) to pay or reimbursethe Administrative Agent for all reasonable costs and expenses incurred inconnection with the development, preparation, negotiation, and execution ofthis Agreement and the other Loan Documents and any amendment, waiver, consent,or other modification of the provisions hereof and thereof (whether or not thetransactions contemplated hereby or thereby are consummated), and theconsummation and administration of the transactions contemplated hereby andthereby, including all reasonable attorneys’ fees, and (b) to pay or reimbursethe Administrative Agent, the L/C Issuer, and each Lender for all reasonablecosts and expenses incurred in connection with the enforcement, attemptedenforcement, or preservation of any rights or remedies under this Agreement orthe other Loan Documents (including all such costs and expenses incurred duringany “*workout*”or restructuring in respect of the Obligations and during any legal proceeding,including any proceeding under any Debtor Relief Law), including all reasonableattorneys’ fees.  The foregoing costsand expenses shall include all search, filing, recording, title insurance, andappraisal charges and fees and taxes related thereto, and other out-of-pocketexpenses incurred by the Administrative Agent and the cost of independentpublic accountants and other outside experts retained by the AdministrativeAgent, counsel to the Administrative Agent, the L/C Issuer, or any Lender.  All amounts due under this ***Section 10.04*** shallbe 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****                 Indemnification by the Borrower.**  Whether or not the transactions contemplatedhereby are consummated, the Borrower shall indemnify and hold harmless eachAgent-Related Person,  the L/C Issuer,each Lender, and their respective Affiliates, directors, officers, employees,counsel, agents, attorneys, and attorneys-in-fact (collectively the “***Indemnitees***”) fromand against any and all liabilities, obligations, losses, damages, penalties,claims, demands, actions, judgments, suits, costs, expenses, and disbursements(including reasonable attorneys’ fees and expenses) of any kind or naturewhatsoever which may at any time be imposed on, incurred by or asserted againstany such Indemnitee in any way relating to or arising out of or in connectionwith (a) the execution, delivery, enforcement, performance, or administrationof any Loan Document or any other agreement, letter, or instrument delivered inconnection with the transactions contemplated thereby or the consummation ofthe transactions contemplated thereby, (b) any Commitment, Loan or Letter ofCredit or the use or proposed use of the proceeds therefrom (including anyrefusal by the L/C Issuer to honor a demand for payment under a Letter ofCredit if the documents presented in connection with such demand do notstrictly comply with the terms of such Letter of Credit), or (c) any actual oralleged presence or release of Hazardous Materials on or from any propertycurrently or formerly owned or operated by the Borrowers or any Subsidiary, orany Environmental Liability related in any way to the Borrower or anySubsidiary, or (d) any claim, litigation, investigation, or proceeding relatingto any of the foregoing, whether based on contract, tort, or any other theory(including any investigation of, preparation for, or defense of any pending orthreatened claim, investigation, litigation, or proceeding) and regardless ofwhether any Indemnitee 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

 

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disbursements are determined by a court of competent jurisdiction byfinal and nonappealable judgment to have resulted from the gross negligence orwillful misconduct of such Indemnitee, or from such Indemnitee’s breach of thisAgreement.  No Indemnitee shall beliable for any damages arising from the use by others of any information orother materials obtained through IntraLinks or other similar informationtransmission systems in connection with this Agreement, nor shall anyIndemnitee have any liability for any indirect or consequential damagesrelating to this Agreement or any other Loan Document or arising out of itsactivities in connection herewith or therewith (whether before or after theClosing Date).  All amounts due underthis ***Section 10.05*** shallbe 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 failureby such Indemnitee to give such notice shall not relieve the Borrower from itsobligations to indemnify the Indemnitee unless (and then solely to the extent)the Borrower is materially prejudiced thereby.

 

**10.06****                 Payments Set Aside.**  To the extent that the Borrower makes a payment to theAdministrative Agent or any Lender, or the Administrative Agent or any Lenderexercises its right of set-off, and such payment or the proceeds of suchset-off or any part thereof is subsequently invalidated, declared to befraudulent or preferential, set aside or required (including pursuant to anysettlement entered into by the Administrative Agent or such Lender in itsdiscretion) to be repaid to a trustee, receiver or any other party, inconnection with any proceeding under any Debtor Relief Law or otherwise, then(a) to the extent of such recovery, the obligation or part thereof originallyintended to be satisfied shall be revived and continued in full force andeffect as if such payment had not been made or such set-off had not occurred,and (b) each Lender severally agrees to pay to the Administrative Agent upondemand its applicable share of any amount so recovered from or repaid by theAdministrative Agent, plus interest thereon from the date of such demand to thedate such payment is made at a rate per annum equal to the Federal Funds Ratefrom time to time in effect.

 

## **10.07**                 Successors and Assigns.

## ** **

(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)*** ofthis ***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 expresslycontemplated hereby, the Indemnitees) any legal or equitable right, remedy, orclaim 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

 

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assigning Lender’s Commitment and the Loans at the time owing to it orin the case of an assignment to a Lender or a Lender Affiliate or an ApprovedFund (as defined in ***subsection (h)*****ofthis ***Section 10.07***)with respect to a Lender, the aggregate amount of the Commitment (which forthis purpose includes any Loans outstanding thereunder) or principaloutstanding balance of the Loans of the assigning Lender subject to each suchassignment, determined as of the date the Assignment and Assumption withrespect to such assignment is delivered to the Administrative Agent or, if“Trade Date” is specified in the Assignment and Assumption, as of the TradeDate, shall not be less than $5,000,000, unless each of the AdministrativeAgent and the L/C Issuer and, so long as no Event of Default has occurred andis continuing, the Borrower otherwise consents (each such consent not to beunreasonably withheld or delayed), (ii) each partial assignment shall be madeas an assignment of a proportionate part of all the 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 ofthis Agreement 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 Lendershall remain solely responsible to the other parties hereto for the performanceof such obligations and (iii) the Borrower, the Administrative Agent, andthe other Lenders shall continue to deal solely and directly with such Lenderin connection with such Lender’s rights and obligations under thisAgreement.  Any agreement or instrumentpursuant to which a Lender sells such a participation shall provide that

 

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such Lender shall retain the sole right to enforce this Agreement andto approve any amendment, modification, or waiver of any provision of thisAgreement; *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 scheduled to be paid to such Participant, or (ii) reduce theprincipal, interest, fees or other amounts payable to such Participant.  Subject to ***subsection (e)*** of this ***Section 10.07***, the Borrower agrees thateach Participant shall be entitled to the benefits of ***Sections 3.01, 3.04***, and ***3.05*** to the same extent as if it were aLender and had acquired its interest by assignment pursuant to ***subsection (b)*** ofthis ***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 a Lender and (ii) the Borrower has given prior written consentto the sale of the participation to such 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 tosuch fifth 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 inmaking, purchasing, holding, or otherwise investing in commercial loans andsimilar extensions of credit in the ordinary course of its business.

 

**“*Approved******Fund*”** means any Fund that isadministered or managed by (a) a Lender or (b) a Lender Affiliate.

 

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“***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 anything to the contrary containedherein, if at any time the L/C Issuer assigns all of its Commitment and Loanspursuant to ***subsection (b***)above, the L/C Issuer may upon 30 days’ notice to the Borrower and the Lenders,resign as L/C Issuer.  In the event ofsuch resignation, the Borrower shall be entitled to appoint from among theLenders a successor L/C Issuer hereunder. Upon the appointment of a successorL/C Issuer, such Person acting as such successor L/C Issuer shall succeed toall the rights, powers, and duties of the retiring L/C Issuer, and the term “*L/C Issuer*”shall mean such successor Letter of Credit issuer, and the retiring L/CIssuer’s rights, powers, and duties as L/C Issuer shall be terminated, withoutany other or further act or deed on the part of the retiring L/C Issuer or anyLender, other than the right of the retiring L/C Issuer to require thesuccessor L/C Issuer to issue letters of credit in substitution for the Lettersof Credit, if any, outstanding at the time of such succession or to make otherarrangements satisfactory to the retiring L/C Issuer to effectively assume theobligations of the retiring L/C Issuer, with respect to such Letters of Credit.The failure by the Borrower to appoint any such successor shall not affect theresignation of 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, the L/CIssuer, and the Lenders agrees to maintain the confidentiality of theInformation (as defined below), except that Information may be disclosed(a) to its and its Affiliates’ directors, officers, employees, and agents,including accountants, legal counsel, and other advisors who have a need toknow such information in connection with the transactions contemplated by thisAgreement or the provisions of other financial products or services to Borrower(and each disclosing party agrees that the Persons to whom such disclosure ismade will be informed of the confidential nature of such Information andinstructed to keep such Information confidential), (b) to the extentrequested by any regulatory authority having jurisdiction over the disclosingparty, (c) to the extent required by applicable laws or regulations or byany subpoena or similar legal process, (d) to any other party to thisAgreement, (e) in connection with the exercise of any remedies hereunder or anysuit, action or proceeding relating to this Agreement or the enforcement ofrights hereunder, (f) subject to an agreement containing provisionssubstantially the same as those of this ***Section 10.08***, to (i) any Eligible Assignee of orParticipant in, or any prospective Eligible Assignee of or Participant in, anyof its rights or obligations under this Agreement or (ii) any direct orindirect contractual counterparty or prospective counterparty (or suchcontractual counterparty’s or prospective counterparty’s professional advisor)to any credit derivative transaction relating to obligations of the Borrower,(g) with the consent of the Borrower, (h) to the extent such Information(i) becomes publicly available other than as a result of a breach of this ***Section 10.08***or anysimilar confidentiality undertaking by which the disclosing party is bound, or(ii) becomes available to the Administrative Agent, the L/C Issuer, or anyLender on a nonconfidential basis from a source other than the Borrower, andnot from a Person party to the Loan Documents, or (i) to the NationalAssociation of Insurance Commissioners or any other similar organization.  In addition, the Administrative Agent, theL/C Issuer, and the Lenders may disclose the (i) existence of this Agreement,(ii) the initial pricing under this Agreement, (iii) the Termination Date andthe Maturity Date, (iv) the initial principal amount of this

 

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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 obligation to do so if such Person has exercised the same degree ofcare to maintain the confidentiality of such Information as such Person would accordto its own confidential information. Notwithstanding anything herein to thecontrary, “***Information***”shall not include, and each party hereto may disclose without limitation of anykind, any information with respect to the “*tax treatment*” and “*tax structure*” (in eachcase, within the meaning of Treasury Regulation *Section 1.6011-4*) of thetransactions contemplated hereby and all materials of any kind (includingopinions or other tax analyses) that are provided to such party relating tosuch tax treatment and tax structure; *provided that*, with respect to anydocument or similar item that in either case contains information concerningthe tax treatment or tax structure of the transaction as well as otherinformation, this sentence shall only apply to such portions of the document orsimilar item that relate to the tax treatment or tax structure of thetransactions contemplated hereby.

 

**10.09****                 Set-off.**  In addition to any rights and remedies ofthe Lenders provided by law, upon the occurrence and during the continuance ofany Event of Default, each Lender is authorized at any time and from time totime, without prior notice to the Borrower, any such notice being waived by theBorrower to the fullest extent permitted by law, to set off and apply any andall deposits (general or special, time or demand, provisional or final) at anytime held by, and other indebtedness at any time owing by, such Lender to orfor the credit or the account of the Borrower against any and all Obligationsowing to such Lender, hereunder or under any Loan Document, now or hereafterexisting, irrespective of whether or not the Administrative Agent or suchLender shall have made demand under this Agreement or any other Loan Documentand although such Obligations may be contingent or unmatured or denominated ina currency different from that of the applicable deposit or indebtedness.  Each Lender agrees promptly to notify theBorrower and the Administrative Agent after any such set-off and applicationmade by such Lender; *provided that* the failure to give suchnotice shall not affect the validity of such set-off and application.

 

**10.10****                 Interest Rate Limitation.**  Notwithstanding anything to the contrary contained in any LoanDocument, the interest paid or agreed to be paid under the Loan Documents shallnot exceed the maximum rate of non-usurious interest permitted by applicableLaw (the “***Maximum Rate***”).  If the Administrative Agent or any Lendershall receive interest in an amount that exceeds the Maximum Rate, the excessinterest shall be applied to the principal of the Loans or, if it exceeds suchunpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or receivedby the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may,to the extent permitted by applicable Law, (a) characterize any payment that 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.

 

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**10.12****                 Integration.**  This Agreement, together with the other LoanDocuments, comprises the complete and integrated agreement of the parties onthe 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 of Representations andWarranties.**  All representationsand warranties made hereunder and in any other Loan Document or other documentdelivered pursuant hereto or thereto or in connection herewith or therewithshall survive the execution and delivery hereof and thereof.

 

**10.14****                 Severability.** If any provision of this Agreement or the other Loan Documents is heldto be illegal, invalid or unenforceable, (a) the legality, validity, andenforceability of the remaining provisions of this Agreement and the other LoanDocuments shall not be affected or impaired thereby, and (b) the parties shallendeavor in good faith negotiations to replace the illegal, invalid, orunenforceable provisions with valid provisions the economic effect of whichcomes as close as possible to that of the illegal, invalid or unenforceableprovisions.  The invalidity of aprovision in a particular jurisdiction shall not invalidate or renderunenforceable such provision in any other jurisdiction.

 

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

 

(a)(i)                       Each Lenderthat is not a “*United States person*” within the meaning of *Section7701(2)(30)* of the Code (a “***Foreign Lender***”) shall deliver to the AdministrativeAgent, with a copy to the Borrower, prior to receipt of any payment subject towithholding under the Code (or upon accepting an assignment of an interestherein), two duly signed completed copies of either IRS Form W-8BEN or anysuccessor thereto (relating to such Foreign Lender and entitling it to anexemption from, or reduction of, withholding tax on all payments to be made tosuch Foreign Lender by the Borrower pursuant to this Agreement) or IRS FormW-8ECI or any successor thereto (relating to all payments to be made to suchForeign Lender by the Borrower pursuant to this Agreement) or such otherevidence satisfactory to the Borrower and the Administrative Agent that suchForeign Lender is entitled to an exemption from, or reduction of, U.S. withholdingtax including any exemption 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 typical participationby such Lender), shall deliver to the Administrative Agent on the date whensuch Foreign Lender ceases to act for its own account with respect to anyportion of any such sums paid or payable, and at such other

 

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times as may be necessary in the determination of theAdministrative Agent (in the reasonable exercise of its discretion), (A) twoduly signed completed copies of the forms or statements required to be providedby such Lender as set forth above, to establish the portion of any such sumspaid or payable with respect to which such Lender acts for its own account thatis not subject to U.S. withholding tax, and (B) two duly signed completedcopies of IRS Form W-8IMY (or any successor thereto), together with anyinformation such Lender chooses to transmit with such form, and any othercertificate or statement of exemption required under the Code, to establishthat such Lender is not acting for its own account with respect to a portion ofany 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 Lender shallhave 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)*** onthe date such Lender became a Lender or ceased to act for its own account withrespect 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 pursuant to ***Section 3.01*** in theevent 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)* of theCode shall deliver to the Administrative Agent two duly signed completed copiesof IRS Form W-9.  If such Lender failsto deliver such forms, then the Administrative Agent may withhold from anyinterest payment to such Lender an amount equivalent to the applicable back-upwithholding 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*** shallsurvive the termination of the Total Commitment, repayment of all theObligations hereunder, and the resignation of the Administrative Agent.

 

## **10.16**                 Removal and Replacement 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

 

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to such Lender through the date of termination (including any amountspayable pursuant 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 orEligible Assignees procured by the Borrower; *provided**that,*if the Borrower elects to exercise such right with respect to any Lenderpursuant 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.

 

## **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 THE BOROUGHOF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE,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 BYTHE LAW OF SUCH STATE.

 

**10.18****                 Waiver of Right to Trial by Jury.**** **EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANYRIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISINGUNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTALTO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOANDOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOWEXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OROTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT AJURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR

 

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A COPY OF THIS ***SECTION 10.18*** WITH ANY COURT AS WRITTEN EVIDENCE OF THECONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BYJURY.

 

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

 

**10.20****                 ENTIRE AGREEMENT.**  THISAGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THEPARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, ORSUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

 

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

***Signature Pages Follow]***

 

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Signature Page to that certain 364-Day Revolving CreditAgreement dated as of July 30, 2003, among ALLTEL Corporation, as theBorrower, Bank of America, N.A., as the Administrative Agent, Merrill Lynch,Pierce, Fenner & Smith Incorporated, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effective as of the Closing Date.

 

 
| **ALLTEL  CORPORATION**, as the*Borrower* |
|-------------------------------------------|
|                                      |   |   |
|                                      |   |   |
| By:                                       | /s/ Scott T. Ford |   |
|                                      |   | Scott T. Ford |
|                                      |   | Chief Executive Officer and President |
|                                           |  |  |  |  |

 

** **

 

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Signature Page to that certain 364-Day RevolvingCredit Agreement dated as of July 30, 2003, among ALLTEL Corporation, asthe Borrower, Bank of America, N.A., as the Administrative Agent, MerrillLynch, Pierce, Fenner & Smith Incorporated, as the Syndication Agent, andthe Lenders named therein.

 

EXECUTED to be effective as of the Closing Date.

 

 
| **BANK OF AMERICA, N.A.,**  as the *Administrative  Agent, the L/C Issuer*, and a *Lender* |
|--------------------------------------------------------------------------------------------|
|                                                                                       |
|                                                                                       |
| By:                                                                                        | /s/ Todd Shipley |   |
| Name:                                                                                      | Todd Shipley |   |
| Title:                                                                                     | Managing Director |   |
|                                                                                            |  |  |  |  |

 

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Signature Page to that certain 364-Day RevolvingCredit Agreement dated as of July 30, 2003, among ALLTEL Corporation, asthe Borrower, Bank of America, N.A., as the Administrative Agent, MerrillLynch, Pierce, Fenner & Smith Incorporated, as the Syndication Agent, andthe Lenders named therein.

 

EXECUTED to be effective as of the Closing Date.

 
| **MERRILL  LYNCH, PIERCE, FENNER & SMITH  INCORPORATED**,  as the *Syndication  Agent* |
|--------------------------------------------------------------------------------------------|
|                                                                                       |
|                                                                                       |
| By:                                                                                        | /s/ Cecile Baker |   |
| Name:                                                                                      | Cecile Baker |   |
| Title:                                                                                     | Authorized Signatory |   |
|                                                                                            |  |  |  |  |

 

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Signature Page to that certain 364-Day RevolvingCredit Agreement dated as of July 30, 2003, among ALLTEL Corporation, asthe Borrower, Bank of America, N.A., as the Administrative Agent, MerrillLynch, Pierce, Fenner & Smith Incorporated, as the Syndication Agent, andthe Lenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 
| **MERRILL  LYNCH BANK USA,**as a *Lender* |
|-------------------------------------------|
|                                      |
|                                      |
| By:                                       | /s/ D. Kevin Imlay |   |
| Name:                                     | D. Kevin Imlay |   |
| Title:                                    | Senior Credit Officer |   |
|                                           |  |  |  |  |

 

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Signature Page to that certain 364-Day RevolvingCredit Agreement dated as of July 30, 2003, among ALLTEL Corporation, asthe Borrower, Bank of America, N.A., as the Administrative Agent, MerrillLynch, Pierce, Fenner & Smith Incorporated, as the Syndication Agent, andthe Lenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 
| **JPMORGAN  CHASE BANK,**as a *Lender* |
|----------------------------------------|
|                                   |
|                                   |
| By:                                    | /s/ David M. Mallett |   |
| Name:                                  | David M. Mallett |   |
| Title:                                 | Vice President |   |
|                                        |  |  |  |  |

 

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Signature Page to that certain 364-Day RevolvingCredit Agreement dated as of July 30, 2003, among ALLTEL Corporation, asthe Borrower, Bank of America, N.A., as the Administrative Agent, MerrillLynch, Pierce, Fenner & Smith Incorporated, as the Syndication Agent, andthe Lenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 
| **CITIBANK,  N.A.,**as a *Lender* |
|-----------------------------------|
|                              |
|                              |
| By:                               | /s/ Elizabeth H. Minnella |   |
| Name:                             | Elizabeth H. Minnella |   |
| Title:                            | Director |   |
|                                   |  |  |  |  |

 

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Signature Page to that certain 364-Day RevolvingCredit Agreement dated as of July 30, 2003, among ALLTEL Corporation, asthe Borrower, Bank of America, N.A., as the Administrative Agent, MerrillLynch, Pierce, Fenner & Smith Incorporated, as the Syndication Agent, andthe Lenders 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 |   |
|                                                        |  |  |  |  |

 

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Signature Page to that certain 364-Day RevolvingCredit Agreement dated as of July 30, 2003, among ALLTEL Corporation, asthe Borrower, Bank of America, N.A., as the Administrative Agent, MerrillLynch, Pierce, Fenner & Smith Incorporated, as the Syndication Agent, andthe Lenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 
| **SUNTRUST  BANK,**as a *Lender* |
|----------------------------------|
|                             |
|                             |
| By:                              | /s/ Thomas C. King, Jr. |   |
| Name:                            | Thomas C. King, Jr. |   |
| Title:                           | Director |   |
|                                  |  |  |  |  |

 

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Signature Page to that certain 364-Day Revolving CreditAgreement dated as of July 30, 2003, among ALLTEL Corporation, as theBorrower, Bank of America, N.A., as the Administrative Agent, Merrill Lynch,Pierce, Fenner & Smith Incorporated, as the Syndication Agent, and theLenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 
| **BANK  ONE, NA,**as a *Lender* |
|---------------------------------|
|                            |
|                            |
| By:                             | /s/ Matthew J. Reilly |   |
| Name:                           | Matthew J. Reilly |   |
| Title:                          | Director |   |
|                                 |  |  |  |  |

 

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Signature Page to that certain 364-Day RevolvingCredit Agreement dated as of July 30, 2003, among ALLTEL Corporation, asthe Borrower, Bank of America, N.A., as the Administrative Agent, MerrillLynch, Pierce, Fenner & Smith Incorporated, as the Syndication Agent, andthe Lenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 
| **KEYBANK  NATIONAL ASSOCIATION,**as a *Lender* |
|-------------------------------------------------|
|                                            |
|                                            |
| By:                                             | /s/ Christopher A. Swindell |   |
| Name:                                           | Christopher A. Swindell |   |
| Title:                                          | Portfolio Manager |   |
|                                                 |  |  |  |  |

 

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Signature Page to that certain 364-Day RevolvingCredit Agreement dated as of July 30, 2003, among ALLTEL Corporation, asthe Borrower, Bank of America, N.A., as the Administrative Agent, MerrillLynch, Pierce, Fenner & Smith Incorporated, as the Syndication Agent, andthe Lenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 
| **REGIONS  BANK,**as a *Lender* |
|---------------------------------|
|                            |
|                            |
| By:                             | /s/ David Waller |   |
| Name:                           | David Waller |   |
| Title:                          | Vice President, Corporate Banking, Regions Bank |   |
|                                 |  |  |  |  |

 

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Signature Page to that certain 364-Day RevolvingCredit Agreement dated as of July 30, 2003, among ALLTEL Corporation, asthe Borrower, Bank of America, N.A., as the Administrative Agent, MerrillLynch, Pierce, Fenner & Smith Incorporated, as the Syndication Agent, andthe Lenders named therein.

 

EXECUTED to be effectiveas of the Closing Date.

 
| **WILLIAM  STREET COMMITMENT CORPORATION,**(Recourse only to William Street Commitment Corporation)  as a *Lender* |
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| By:                                                                                                                | /s/ David Weil |   |
|                                                                                                               | David Weil |   |
|                                                                                                               | Treasurer |   |

 

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