Exhibit (10)(a)(1)

 

CONFORMED *

364-DAY REVOLVING CREDIT AGREEMENT

 

Dated as of July 31, 2002

among

ALLTEL CORPORATION,

as the Borrower,

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

 

MERRILLLYNCH & CO., MERRILL LYNCH, PIERCE, FENNER & SMITH

 INCORPORATED,

asthe Syndication Agent,

 

BANC OF AMERICASECURITIES LLC and MERRILL LYNCH & CO., MERRILL LYNCH, 

PIERCE, FENNER &SMITH INCORPORATED,

as the Joint LeadArrangers and Joint Book Runners,

 

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

and BANK ONE, NA,

as theCo-Documentation Agents,

 

and

THE OTHER LENDERS PARTY HERETO

 

 

$500,000,000

 

 

 

> **Conformed to    reflect signatures.
 

TABLE OF CONTENTS
**SectionPageARTICLE I.  DEFINITIONS AND      ACCOUNTING TERMS1
1.01Defined Terms.1
1.02Other Interpretive Provisions.131.03Accounting Terms. 141.04Rounding.141.05References to Agreements and      Laws.14
ARTICLE II.  THE COMMITMENTS      AND LOANS
142.01Loans.142.02Borrowings, Conversions, and      Continuations of Loans.152.03Prepayments.162.04Reduction or Termination of      Commitments.162.05Change of Control.162.06Repayment of Principal Debt.172.07Interest.172.08Fees.172.09Computation of Interest and Fees.182.10Evidence of Debt.182.11Payments Generally.192.12Sharing of Payments.202.13Extension of Termination Date.202.14Conversion to Term Loan.21ARTICLE III.  TAXES, YIELD,      PROTECTION AND ILLEGALITY223.01Taxes.223.02Illegality.233.03Inability to Determine Rates.233.04Increased Cost and Reduced      Return; Capital Adequacy; Reserves on Eurodollar Rate Loans.233.05Funding Losses.243.06Matters Applicable to all      Requests for Compensation.253.07Survival.25ARTICLE IV.  CONDITIONS      PRECEDENT254.01Conditions to Closing.254.02Conditions to all Loans.26ARTICLE V.  REPRESENTATIONS AND      WARRANTIES275.01Existence, Qualification, and      Power; Compliance with Laws.275.02Authorization; No Contravention. 275.03Governmental Authorization. 275.04Binding Effect. 275.05Financial Statements; No Material      Adverse Effect. 275.06Litigation. 285.07No Default. 285.08Ownership of Property; Liens. 285.09Environmental Compliance. 285.10Taxes.285.11ERISA Compliance. 285.12Margin Regulations; Investment      Company Act; Public Utility Holding Company Act.295.13Rank of Debt. 295.14Disclosure. 29ARTICLE VI.  AFFIRMATIVE    CONVENANTS306.01Financial Statements. 306.02Certificates; Other Information. 306.03Notices. 316.04Payment of Obligations. 316.05Preservation of Existence, Etc.316.06Maintenance of Properties. 326.07Maintenance of Insurance. 326.08Compliance with Laws. 326.09Books and Records. 326.10Inspection Rights. 326.11Use of Proceeds. 32ARTICLE VII.  NEGATIVE      CONVENANTS337.01Liens. 337.02Indebtedness. 347.03Subsidiary Indebtedness. 347.04Fundamental Changes. 357.05Change in Nature of Business. 367.06Transactions with Affiliates. 367.07Burdensome Agreements. 367.08Use of Proceeds.377.09Total Debt to Capitalization      Ratio. 37ARTICLE VIII.  EVENTS OF      DEFAULT AND REMEDIES378.01Events of Default.378.02Remedies Upon Event of Default. 398.03Application of Funds. 40ARTICLE IX.  AGREEMENT AMONG      LENDERS409.01Appointment and Authorization of      Administrative Agent.409.02Delegation of Duties. 419.03Liability of Agent-Related      Persons.419.04Reliance by Administrative Agent.      419.05Notice of Default. 429.06Credit Decision; Disclosure of      Information by Administrative Agent and Syndication Agent. 429.07Indemnification of Agent-Related      Persons. 429.08Administrative Agent in its      Individual Capacity. 439.09Successor Administrative Agent. 439.10Administrative Agent May File      Proofs of Claim.439.11Other Agents; Joint Book Runners,      Joint Lead Arrangers. 44ARTICLE X.  MISCELLANEOUS4410.01Amendments, Etc.4410.02Notices and Other Communications;      Facsimile Copies.4510.03No Waiver; Cumulative Remedies. 4610.04Attorneys' Fees, Expenses and      Taxes. 4610.05Indemnification by the Borrower.4710.06Payments Set Aside. 4710.07Successors and Assigns.4810.08Confidentiality. 5010.09Set-off. 5110.10Interest Rate Limitation. 5110.11Counterparts.5110.12Integration. 5110.13Survival of Representations and      Warranties. 5210.14Severability. 5210.15Foreign Lenders. 5210.16Removal and Replacement of      Lenders.5310.17Governing Law. 5410.18Waiver of Right to Trial by Jury.      5410.19TIME IS OF THE ESSENCE. 5410.20ENTIRE AGREEMENT.55
 
SIGNATURE PAGES
 
**SCHEDULES

2.01 Commitments and Pro Rata  Shares  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
**364-DAY revolving CREDIT AGREEMENT**
THIS 364-DAY REVOLVING CREDITAGREEMENT ("***Agreement***") is entered into as ofJuly 31, 2002, among **ALLTEL CORPORATION**, a Delaware corporation (the"***Borrower***"), each lender from time to time party hereto(collectively, the "***Lenders***" and individually, a "***Lender***"),**BANK OF AMERICA, N.A.**, as the Administrative Agent, and **MERRILL LYNCH& CO., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,**as theSyndication Agent.

The Borrower has requested that theLenders extend a revolving credit facility to the Borrower in the aggregateprincipal amount of up to $500,000,000, and the Lenders are willing to do so onthe terms and conditions set forth herein.

In consideration of the mutualcovenants and agreements herein contained, the parties hereto covenant and agreeas follows:

 

**ARTICLEI.**

**DEFINITIONSAND ACCOUNTING TERMS**
**1.01       Defined Terms.  
As    used in this Agreement, the following terms shall have the meanings set    forth below:
***Acquisitions means, collectively, the Wireless    Acquisition and the Line Acquisition, and ***Acquisition***means    either the Wireless Acquisition or the Line Acquisition.
***Acquisition Financial Statements means the    Financial Statements of the Borrower and its consolidated Subsidiaries    prepared with respect to the first fiscal quarter that ends after the    consummation of both Acquisitions.
***Administrative Agent means Bank of America in its    capacity as administrative agent under any of the Loan Documents, or any    successor administrative agent.
***Administrative Agent's Office means the    Administrative Agent's address and, as appropriate, account as set forth on ***Schedule    10.02***, or such other address or account as the Administrative Agent    may from time to time notify to the Borrower and the Lenders.
***Administrative Fee Agreement has the meaning    specified in ***Section 2.08(c)***.
***Administrative Questionnaire means an    Administrative Questionnaire in a form supplied by Administrative Agent.
***Affiliate means, as to any Person, any other    Person directly or indirectly controlling, controlled by, or under direct or    indirect common control with, such Person. A Person shall be deemed to be    "*controlled by*" any other Person if such other Person    possesses, directly or indirectly, power (a) to vote 10% or more of the    securities (on a fully diluted basis) having ordinary voting power for the    election of directors, managing general partners, or the equivalent, or (b)    to direct or cause the direction of the management and policies of such    Person whether by contract or otherwise.
***Agent-Related Persons means the Administrative    Agent (including any successor administrative agent) and the Syndication    Agent (including any successor syndication agent), together with each of    their respective Affiliates (including, in the case of Bank of America in    its capacity as the Administrative 

1

Agent, the Arranger), and the officers, directors,    employees, agents, and attorneys-in-fact of each such Persons and    Affiliates.
***Agreement means this 364-Day****Revolving    Credit Agreement.
***Applicable Rate means the appropriate percentages    per annum as set forth below, based upon the Debt Rating, relevant fee, and    Type as set forth below; *provided that*, from and after the Term    Conversion Date, the Applicable Rate per annum for Eurodollar Rate Loans and    Base Rate Loans shall increase by .25% for each Pricing Level:

     **Pricing Level**Debt Ratings          S&P/Moody's**Facility Fee**Eurodollar Rate**Base Rate**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, as of    any date of determination, the rating as determined by either S&P or    Moody's (collectively, the "***Debt Ratings***") of the    Borrower's non-credit-enhanced, senior unsecured long-term debt; *provided    that* if a Debt Rating is issued by each of the foregoing rating    agencies, then the higher of such Debt Ratings shall apply (with the Debt    Rating for Pricing Level 1 being the highest and the Debt Rating for Pricing    Level 5 being the lowest), unless there is a split in Debt Ratings of more    than one level, in which case the Pricing Level that is one 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 in the certificate delivered pursuant to ***Section    4.01(a)(v)***. Thereafter, each change in the Applicable Rate resulting    from a publicly announced change in the Debt Rating shall be effective    during the period commencing on the date of the public announcement thereof    and ending on the date immediately preceding the effective date of the next    such change.
***Arranger means each of Banc of America Securities    LLC and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith    Incorporated, each in its capacity as joint lead arranger and joint book    runner.
***Assignment and Assumption means an Assignment and    Assumption substantially in the form of ***Exhibit F***.
***Attributable Indebtedness means, on any date, (a)    in respect of any capital lease of any Person, the capitalized amount    thereof that would appear on a balance sheet of such Person prepared as of    such date in accordance with GAAP, and (b) in respect of any Synthetic Lease    Obligation, the capitalized amount of the remaining lease payments under the    relevant lease that would appear on a balance sheet of such Person prepared    as of such date in accordance with GAAP if such lease were accounted for as    a capital lease.
***Audited Financial Statements means the audited    Financial Statements of the Borrower and its Subsidiaries for the fiscal    year ended December 31, 2001.

 

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***Bank of America means Bank of America, N.A. and    its successors.
***Base Rate means, for any day, a fluctuating rate    per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1%    and (b) the rate of interest in effect for such day as publicly announced    from time to time by Bank of America as its "*prime rate*."    The "*prime rate*" is a rate set by Bank of America based    upon various factors including Bank of America's costs and desired return,    general economic conditions and other factors, and is used as a reference    point for pricing some loans, which may be priced at, above, or below such    announced rate. Any change in such rate announced by Bank of America shall    take effect at the opening of business on the day specified in the public    announcement of such change.
***Base Rate Loan means a Borrowing that bears    interest based on the Base Rate.
***Board means the Board of Governors of the Federal    Reserve System of the United States of America.
***Borrower has the meaning set forth in the    introductory paragraph hereto.
***Borrowing means a borrowing consisting of    simultaneous Loans of the same Type and, in the case of Eurodollar Rate    Loans, having the same Interest Period made by each of the Lenders pursuant    to ***Section 2.01***.
***Business Day means any day other than a Saturday,    Sunday, or other day on which commercial banks are authorized to close under    the Laws of, or are in fact closed in, Dallas, Texas or New York, New York,    and, if such day relates to any Eurodollar Rate Loan, means any such day on    which dealings in Dollar deposits are conducted by and between banks in the    London interbank eurodollar market.
***Capitalization means, on any date, Total Debt    plus Consolidated Net Worth.
***Change of Control means, with respect to 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*Securities Exchange Act of 1934*, but excluding any employee benefit plan    of such Person or its subsidiaries, and any person or entity acting in its    capacity as trustee, agent, or other fiduciary or administrator of any such    plan), becomes the "*beneficial owner*" (as defined in *Rules    13d-3* and *13d-5* under the *Securities Exchange Act of 1934*,    except that a person or group shall be deemed to have "*beneficial    ownership*" of all securities that such person or group has the    right to acquire (such right, an "***option right***"), if    such right is exercisable immediately or within 60 days), directly or    indirectly, of 35% or more of the equity securities of such Person entitled    to vote for members of the board of directors 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 the right to acquire pursuant to    any option right); or

(b) during any period of 12 consecutive months, a    majority of the members of the board of directors or other equivalent    governing body of such Person cease to be composed of individuals (i) who    were members of that board or equivalent governing body on the first day of    such period, (ii) whose election or nomination to that board or equivalent    governing body was approved by individuals referred to in ***clause (i)***    above constituting at the time of such election or nomination at least a    majority of that board or equivalent governing body, or (iii) whose election    or nomination to that board or other equivalent governing body was approved    by individuals 

3

referred to in ***clauses (i)*** and ***(ii)***    above constituting at the time of such election or nomination at least a    majority of that board or equivalent governing body.
***Closing Date means the first date all the    conditions precedent in ***Section 4.01*** are satisfied or waived    in accordance with ***Section 4.01*** (or, in the case of ***Section    4.01(b),*** waived by the Person entitled to receive the applicable    payment).
***Code means the Internal Revenue Code of 1986.
***Commitment means, as to each Lender, its    obligation to make Loans to the Borrower pursuant to ***Section 2.01***,    in an aggregate principal amount at any one time outstanding not to exceed    the amount set forth on ***Schedule 2.01*** or in the Assignment and    Assumption pursuant to which such Lender becomes a party hereto, as    applicable, as such amount may be reduced or adjusted from time to time in    accordance with this Agreement.
***Commitment Letter means the Commitment Letter    dated as of April 29, 2002, as extended by the Commitment Extension    Agreement dated as of June 10, 2002, among the Borrower, the Arrangers, the    Administrative Agent, and the Syndication Agent.
***Compliance Certificate means a certificate substantially in the    form of ***Exhibit E***.
***Consenting Lenders has the meaning set forth in ***Section    2.13(b).
Consolidated Net Worth means, at any time,    consolidated net stockholders equity of the Borrower and its Subsidiaries,    determined in accordance with GAAP.
***Contractual Obligation means, as to any Person,    any provision of any security issued by such Person or of any agreement,    instrument, or other undertaking to which such Person is a party or by which    it or any of its property is bound.
***Current Financials means, at the time of any    determination thereof, the more recently delivered to the Lenders of either    (a) (i) the Audited Financial Statements, and (ii) the unaudited    Financial Statements for the three-month period ended March 31, 2002,    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 may be.
***Debt Rating has the meaning set forth in the    definition of "***Applicable Rate***."
***Debtor Relief Laws means the Bankruptcy 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 similar debtor    relief Laws of the United States of America or other applicable    jurisdictions from time to time in effect and affecting the rights of    creditors generally.
***Default means any event or condition that    constitutes an Event of Default or that, with the giving of any notice, the    passage of time, or both, would be an Event of Default.
***Default Rate means an interest rate equal to (a)    with respect to Base Rate Loans, (i) the Base Rate *plus* (ii) the    Applicable Rate, if any, for Base Rate Loans *plus* (iii) 2.0% per    annum, and (b) with respect to a Eurodollar Rate Loan, (i) the Eurodollar    Rate for such Eurodollar Loan *plus* (ii) the 

4

 

Applicable Rate for Eurodollar Rate Loans *plus*    (iii) 2.0% per annum, in each case to the fullest extent permitted by    applicable Laws.
***Defaulting Lender means any Lender that (a) has    failed to fund any portion of any Loan required to be funded by it hereunder    within one Business Day of the date required to be funded by it hereunder,    (b) has otherwise failed to pay over to the Administrative Agent or any    other Lender any other amount required to be paid by it hereunder within one    Business Day of the date when due, unless the subject of a good faith    dispute, or (c) has been deemed insolvent or become the subject of a    bankruptcy or insolvency proceeding.
***Dispose means the sale, conveyance, transfer,    license, or other disposition (including any sale and leaseback transaction)    of any property by any Person.
***Dollar and ***$*** means lawful money of    the United States of America.
***Eligible Assignee has the meaning specified in ***Section    10.07(h).
Environmental Laws means all Laws relating to    environmental, health, safety, and land use matters applicable to any    property.
***ERISA means the Employee Retirement Income    Security Act of 1974 and any regulations issued pursuant thereto.
***ERISA Affiliate means any trade or business    (whether or not incorporated) under common control with the Borrower within    the meaning of *Section 414(b)*or*(c)*of the**Code (and *Sections    414(m)*and*(o)*of the**Code for purposes of provisions    relating to *Section 412*of the**Code).
***ERISA Event means (a) a Reportable Event with    respect to a Pension Plan, (b) a withdrawal by the Borrower or any ERISA    Affiliate from a Pension Plan subject to *Section 4063*of ERISA during    a plan year in which it was a substantial employer (as defined in *Section 4001(a)(2)*of**ERISA) or a cessation of operations that is treated as such a    withdrawal under *Section 4062(e)*of**ERISA*,* (c) a    complete or partial withdrawal by the Borrower or any ERISA Affiliate from a    Multiemployer Plan or notification that a Multiemployer Plan is in    reorganization, (d) the filing of a notice of intent to terminate, the    treatment of a Plan amendment as a termination under *Sections 4041*or    *4041A*of**ERISA, or the commencement of proceedings by the PBGC    to terminate a Pension Plan or Multiemployer Plan, (e) an event or condition    which constitutes grounds under *Section 4042*of**ERISA for the    termination of, or the appointment of a trustee to administer, any Pension    Plan or Multiemployer Plan, or (f) the imposition of any liability under *Title    IV*of**ERISA, other than PBGC premiums due but not delinquent    under *Section 4007*of ERISA, upon the Borrower or any ERISA    Affiliate.
***Eurodollar Rate means, for any Interest Period,    with respect to any Eurodollar Rate Loan:

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

 

5

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

(c) if the rates referenced in the preceding ***clauses    (a)*** and ***(b)*** are not available, the rate per annum    determined by the Administrative Agent as the rate of interest (rounded    upward to the next 1/100th of 1%) at which deposits in Dollars for delivery    on the first day of such Interest Period in same day funds in the    approximate amount of the Eurodollar Rate Loan being made, continued or    converted by Bank of America and with a term equivalent to such Interest    Period would be offered by Bank of America's London Branch to major banks in    the London interbank eurodollar market at their request at approximately    11:00 a.m. (London time) two Business Days prior to the first day of such    Interest Period.
***Eurodollar Rate Loan means a Borrowing that bears    interest at a rate based on the Eurodollar Rate.
***Event of Default means any of the events or    circumstances specified in ***Section 8.01***.
***Extension Effective Date has the meaning set    forth in ***Section 2.13(b).
Facility Fee has the meaning set forth in ***Section    2.08(a)***.
***Federal Funds Rate means, for any day, the rate    per annum equal to the weighted average of the rates on overnight Federal    funds transactions with members of the Federal Reserve System arranged by    Federal funds brokers on such day, as published by the Federal Reserve Bank    on the Business Day next succeeding such day; *provided**that*    (a) if such day is not a Business Day, the Federal Funds Rate for such day    shall be such rate on such transactions on the next preceding Business Day    as so published on the next succeeding Business Day, and (b) if no such rate    is so published on such next succeeding Business Day, the Federal Funds Rate    for such day shall be the average rate (rounded upwards to the nearest 1/100    of 1%) charged to Bank of America on such day on such transactions as    determined by the Administrative Agent.
***Financial Statements means balance sheets,    statements of operations, and statements of cash flows prepared in    accordance with GAAP (including the notes thereto), which statements of    operations and statements of cash flows shall be in comparative form to the    corresponding period of the preceding fiscal year, and which balance sheets    shall be in comparative form to the corresponding date of the preceding    fiscal year. In addition, any annual Financial Statements must include    statements of shareholders' equity prepared in accordance with GAAP, which    statements of shareholders' equity shall be in comparative form to the prior    fiscal year-end figures.
***Foreign Lender has the meaning specified in ***Section    10.15***.
***GAAP means generally accepted accounting    principles in the United States set forth in the opinions and pronouncements    of the Accounting Principles Board and the American Institute of Certified    Public Accountants and statements and pronouncements of the Financial    Accounting Standards Board or such other principles as may be approved by a    significant segment of the accounting profession in the

6

 United States, that are applicable to the    circumstances as of the date of determination, consistently applied. If at    any time any change in GAAP would affect the computation of any financial    ratio or requirement set forth in any Loan Document, and either the Borrower    or the Required Lenders shall so request, the Administrative Agent, the    Lenders, and the Borrower shall negotiate in good faith to amend such ratio    or requirement to preserve the original intent thereof in light of such    change in GAAP (subject to the approval of the Required Lenders); *provided    that*, until so amended, (a) such ratio or requirement shall continue to    be computed in accordance with GAAP prior to such change therein, and (b)    the Borrower shall provide to the Administrative Agent and the Lenders    Financial Statements and other documents required under this Agreement or as    reasonably requested hereunder setting forth a reconciliation between    calculations of such ratio or requirement made before and after giving    effect to such change in GAAP.
***Governmental Authority means any nation or    government, any state or other political subdivision thereof, any agency,    authority, instrumentality, regulatory body, court, administrative tribunal,    central bank, or other entity exercising executive, legislative, judicial,    taxing, regulatory, or administrative powers or functions of or pertaining    to government, and any corporation or other entity owned or controlled,    through stock or capital ownership or otherwise, by any of the foregoing.
***Guaranty Obligation means, as to any Person, (a)    any obligation, contingent or otherwise, of such Person guaranteeing or    having the economic effect of guaranteeing any Indebtedness or other    obligation of another Person (the "*primary obligor*") in any    manner, whether directly or indirectly, and including any obligation of such    Person, direct or indirect, (i) to purchase or pay (or advance or supply    funds for the purchase or payment of) such Indebtedness or other obligation,    (ii) to purchase or lease property, securities, or services for the purpose    of assuring the obligee in respect of such Indebtedness or other obligation    of the payment of such Indebtedness or other obligation, (iii) to maintain    working capital, equity capital, or any other financial statement condition    or liquidity or level of income or cash flow of the primary obligor so as to    enable the primary obligor to pay such Indebtedness or other obligation, or    (iv) entered into for the purpose of assuring in any other manner the    obligee in respect of such Indebtedness or other obligation of the payment    thereof or to protect such obligee against loss in respect thereof (in whole    or in part), or (b) any Lien on any assets of such Person securing any    Indebtedness or other obligation of any other Person, whether or not such    Indebtedness or other obligation is assumed by such Person; *provided that*    the term "*Guaranty Obligation*" shall not include    endorsements of instruments for deposit or collection in the ordinary course    of business. The amount of any Guaranty Obligation shall be deemed to be an    amount equal to the stated or determinable amount of the related primary    obligation, or portion thereof, in respect of which such Guaranty Obligation    is made or, if not stated or determinable, the maximum reasonably    anticipated liability in respect thereof as determined by the guaranteeing    Person in good faith.
***Indebtedness means, as to any Person at a    particular time, all of the following:

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

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

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

7

 

(d) all obligations of such Person to pay the deferred    purchase price of property or services (other than accounts payable, and    accrued liabilities, as each arise in the ordinary course of business);

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

(f) capital leases and Synthetic Lease Obligations; and

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

For all purposes hereof, the Indebtedness of any Person    shall include the Indebtedness of any partnership or joint venture (other    than a joint venture that is itself a corporation or limited liability    company) in which such Person is a general partner or a joint venturer,    unless such Indebtedness is expressly made non-recourse to such Person. The    amount of any capital lease or Synthetic Lease Obligation as of any date    shall be deemed to be the amount of Attributable Indebtedness in respect    thereof as of such date.
***Indemnified Liabilities has the meaning set forth    in ***Section 10.05***.
***Indemnitees**has the meaning set forth in ***Section    10.05***.
***Interest Payment Date means (a) as to any    Eurodollar Rate Loan, the last day of each Interest Period applicable to    such Eurodollar Rate Loan; *provided that*, if any Interest Period for    a Eurodollar Rate Loan exceeds three months, the respective dates that fall    every three months after the beginning of such Interest Period shall also be    Interest Payment Dates, (b) as to any Base Rate Loan, the last Business Day    of each March, June, September, and December and the Maturity Date, and (c)    as to any Loan, the date such Loan becomes due and payable in accordance    with this Agreement.
***Interest Period means, with respect to a    Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate    Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and    ending on the date one, two, three, or six months thereafter, as selected by    the Borrower in its Loan Notice or such other period of nine or twelve    months that is requested by the Borrower and consented to by all the    Lenders; *provided**that*:

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

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

(iii) no Interest Period shall extend beyond the    scheduled Maturity Date.
***IRS means the United States Internal Revenue    Service.

 

8
***Laws means, collectively, all international,    foreign, Federal, state, and local statutes, treaties, rules, guidelines,    regulations, ordinances, codes, and administrative or judicial precedents or    authorities, including the interpretation or administration thereof by any    Governmental Authority charged with the enforcement, interpretation, or    administration thereof, and all applicable administrative orders, directed    duties, requests, licenses, authorizations, and permits of, and agreements    with, any Governmental Authority.
***Lender has the meaning specified in the    introductory paragraph.
***Lending Office means, as to any Lender, the    office or offices of such Lender described as such on ***Schedule 10.02***,    or such other office or offices as a Lender may from time to time notify the    Borrower and the Administrative Agent.
***Lien means any mortgage, pledge, hypothecation,    assignment, deposit arrangement, encumbrance, lien (statutory or other),    charge, or preference, priority, or other security interest or preferential    arrangement of any kind or nature whatsoever (including any conditional sale    or other title retention agreement, any financing lease having substantially    the same economic effect as any of the foregoing, and the filing of any    financing statement under the Uniform Commercial Code or comparable Laws of    any jurisdiction), including the interest of a purchaser of accounts    receivable.
***Line Acquisition means the acquisition of certain    access lines from Verizon South, Inc. pursuant to the    Line Purchase Agreement.***Line Purchase Agreement means the Asset Purchase    Agreement dated as of October 31, 2001, between Newco No. 1, Inc., now known    as Kentucky ALLTEL, Inc., a Subsidiary of the Borrower, and Verizon South,    Inc.
***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) this Agreement, (b) each    Note, (c) the Administrative Fee Agreement, (d) each Loan Notice, (e) each    Compliance Certificate, (f) all agreements, documents, instruments, and    certificates in favor of the Administrative Agent or any Lender (or the    Administrative Agent on behalf of Lenders) ever delivered in connection with    or under this Agreement or otherwise delivered in connection with all or any    part of the Obligations evidenced by this Agreement, and (g) all    renewals, extensions, and restatements of, and amendments and supplements    to, any of the foregoing.
***Loan Notice means a notice of (a) a Borrowing,    (b) a conversion of Loans from one Type to the other, or (c) a continuation    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 any date of    determination, (a) a material adverse change in the financial condition or    operations of the Borrower and its Subsidiaries taken as a whole, (b) a    material impairment of the ability of the Borrower to perform its    obligations under any Loan Document to which it is a party, or (c) a    material adverse effect upon the legality or enforceability against the    Borrower of any Loan Document to which it is a party.
***Maturity Date means the Termination Date;*provided that*, if the Loans are    converted to a Term Loan pursuant to ***Section 2.14***, from    and after such conversion, ***"Maturity Date"*** means the    first anniversary of the Term Conversion Date.

 

9***Moody's means Moody's Investors Service, Inc.
***Multiemployer Plan means any employee benefit    plan of the type described in *Section 4001(a)(3)*of ERISA, to    which the Borrower or any ERISA Affiliate makes or is obligated to make    contributions, or during the preceding five plan years, has made or been    obligated to make contributions.
***Note means a promissory note made by the Borrower    in favor of a Lender evidencing the Loans made by such Lender, substantially    in the form of ***Exhibit D.
Obligations means all advances to, and debts,    liabilities, obligations, covenants, and duties of, the Borrower arising    under any and all Loan Documents or otherwise with respect to any Loan,    whether direct or indirect (including those acquired by assumption),    absolute or contingent, due or to become due, now existing or hereafter    arising, and including interest that accrues after the commencement by or    against the Borrower or any Affiliate thereof of any proceeding under any    Debtor Relief Laws naming such Person as the debtor in such proceeding,    regardless of whether such interest and fees are allowed claims in such    proceeding.
***Organization Documents means (a) with respect to    any corporation, the certificate or articles of incorporation and the bylaws    (or equivalent or comparable constitutive documents with respect to any non-U.S.    jurisdiction), (b) with respect to any limited liability company, the    certificate or articles of formation or organization and operating    agreement, and (c) with respect to any partnership, joint venture, trust, or    other form of business entity, the partnership, joint venture, or other    applicable agreement of formation or organization and any agreement,    instrument, filing, or notice with respect thereto filed in connection with    its formation with the applicable Governmental Authority in the jurisdiction    of its formation or organization, in each case as amended from time to time.
***Participant has the meaning specified in ***Section    10.07(d).
PBGC means the Pension Benefit Guaranty    Corporation.
***Pension Plan means any "*employee pension    benefit plan*" (as such term is defined in *Section 3(2)*of**ERISA), other than a Multiemployer Plan, that is subject to *Title IV*of    ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate    or to which the Borrower or any ERISA Affiliate contributes or has an    obligation to contribute, or in the case of a multiple employer or other    plan (as described in *Section 4064(a)*of**ERISA) has made    contributions at any time during the immediately preceding five plan years.

***Permitted Successor Corporation***    means any corporation (other than the Borrower) that is the survivor of a    merger or consolidation with the Borrower, *so long as*:
(a) immediately after giving effect to such merger or    consolidation, such surviving corporation shall have then-effective debt    ratings (or implied debt ratings) published by Moody's and S&P    applicable to such surviving corporation's senior, unsecured,    non-credit-enhanced, long term debt, equal to or higher than BBB- by S&P    and Baa3 by Moody's;

(b) such surviving corporation shall be a corporation    organized and existing under the laws of the United States of America, any    state thereof or the District of Columbia, and shall expressly assume all of    the Borrower's obligations for the due and punctual payment of the    Obligations and the performance or observance of the Loan Documents;

 

10

(c) the Borrower shall have delivered to the    Administrative Agent a certificate signed by a Responsible Officer of the    Borrower stating that such surviving corporation complies with the    requirements for a Permitted Successor Corporation set forth in this    definition and that such merger or consolidation is permitted under ***Section    7.04***;

(d) no Change of Control**shall have occurred as a    result of such merger or consolidation; and

(e) on and prior to the closing of any such merger or    consolidation, such merger and consolidation shall have been approved and    recommended by the Board of Directors of the Borrower.
***Person means any individual, trustee, natural    person, corporation, general partnership, limited partnership, limited    liability company, joint stock company, trust, unincorporated organization,    association, bank, business association, firm, joint venture, Governmental    Authority, or other entity.
***Plan means any "*employee benefit plan*"    (as such term is defined in *Section 3(3)*of**ERISA) established    by the Borrower or, with respect to any such plan that is subject to *Section    412* of the Code or *Title IV* of ERISA, any    ERISA Affiliate.
***Principal Debt***means,    on any date of determination, the aggregate outstanding principal amount of    all Borrowings, after giving effect to any Borrowings, prepayments, or    repayments occurring on such date.***Pro Rata Share means, with respect to each    Lender, unless expressly specified herein, (a) with respect to an amount to    be loaned or otherwise paid by such Lender hereunder, a reduction of the    Total Commitment, a payment of the Facility Fee to such Lender,    or a determination of the Voting Percentage of such Lender, in each    case at any time prior to the earlier of the Termination Date or the Term    Conversion Date, a fraction (expressed as a percentage, carried out to the    ninth decimal place), the numerator of which is the amount of the    Commitment of such Lender at such time and the denominator of which is    the amount of the Total Commitment at such time, (b) with respect to an    amount to be paid by such Lender hereunder or a payment of the Facility    Fee to such Lender, in each case on or after the earlier of the Termination    Date or the Term Conversion Date, a fraction (expressed as a percentage,    carried out to the ninth decimal place), the numerator of which is the    amount of the Principal Debt owed to such Lender at such time and the    denominator of which is the amount of the aggregate Principal Debt owed to    all Lenders at such time, and (c) with respect to an amount to be paid to or    for the account of such Lender (other than the Facility Fee) at any    time, a fraction (expressed as a percentage, carried out to the ninth    decimal place), the numerator of which is the amount of the Principal Debt    owed to such Lender at such time and the denominator of which is the amount    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 the events set    forth in *Section 4043(c)*of**ERISA, other than events for which    the 30 day notice period has been waived.
***Required Lenders means, as of any date of    determination, at least two Lenders whose Voting Percentages aggregate more    than 50%.

11

 
***Responsible Officer means the chairman, the chief    executive officer, the president, the chief operating officer, any executive    vice president, the chief financial officer, or the treasurer of the    Borrower. Any document delivered hereunder that is signed by a Responsible    Officer of the Borrower shall be conclusively presumed to have been    authorized by all necessary corporate, partnership, and/or other action on    the part of the Borrower and such Responsible Officer shall be conclusively    presumed to have acted on behalf of the Borrower.
***S&P means Standard & Poor's Ratings    Services, a division of The McGraw-Hill Companies, Inc.
***Subsidiary of a Person means a corporation,    partnership, joint venture, limited liability company, or other business    entity of which a majority of the shares of securities or other interests    having ordinary voting power for the election of directors or other    governing body (other than securities or interests having such power only by    reason of the happening of a contingency) are at the time beneficially    owned, or the management of which is otherwise controlled, directly or    indirectly, through one or more intermediaries, or both, by such Person.    Unless otherwise specified, all references herein to a "*Subsidiary*"    or to "*Subsidiaries*" shall refer to a Subsidiary or    Subsidiaries of the Borrower.
***Swap Contract means (a) any and all rate swap    transactions, basis swaps, credit derivative transactions, forward rate    transactions, commodity swaps, commodity options, forward commodity    contracts, equity or equity index swaps or options, bond or bond price or    bond index swaps or options or forward bond or forward bond price or forward    bond index transactions, interest rate options, forward foreign exchange    transactions, cap transactions, floor transactions, collar transactions,    currency swap transactions, cross-currency rate swap transactions, currency    options, spot contracts, or any other similar transactions or any    combination of any of the foregoing (including any options to enter into any    of the foregoing), whether or not any such transaction is governed by or    subject to any master agreement, and (b) any and all transactions of any    kind, and the related confirmations, which are subject to the terms and    conditions of, or governed by, any form of master agreement published by the    International Swaps and Derivatives Association, Inc., any International    Foreign Exchange Master Agreement, or any other master agreement (any such    master agreement, together with any related schedules, a "*Master    Agreement*"), including any such obligations or liabilities under    any Master Agreement.
***Swap Termination Value means, in respect of any    one or more Swap Contracts, after taking into account the effect of any    legally enforceable netting agreement relating to such Swap Contracts, (a)    for any date on or after the date such Swap Contracts have been closed out    and termination value(s) determined in accordance therewith, such    termination value(s), and (b) for any date prior to the date referenced in    the preceding ***clause (a)*** the amount(s) determined as the    mark-to-market value(s) for such Swap Contracts, as determined based upon    one or more readily available quotations provided by any recognized dealer    in such Swap Contracts (which may include any Lender).
***Syndication Agent means Merrill Lynch & Co.,    Merrill Lynch, Pierce, Fenner & Smith Incorporated, in its capacity as    the Syndication Agent, or any successor syndication agent.
***Synthetic Lease Obligation means any synthetic    lease, tax retention operating lease, off-balance sheet loan, or similar    off-balance sheet financing product where such transaction is considered    borrowed money indebtedness for tax purposes but is classified, for    accounting purposes, as an operating lease, rather than a capital lease.
***Term Conversion Date means the date upon which    the Principal Debt is converted to a Term Loan in accordance with ***Section 2.14***.

 

12
***Term Conversion Election has the meaning set forth in ***Section 2.14(a)***.
***Term Loan means the Principal Debt from and after the Term    Conversion Date.
***Termination Date means the *earlier* of    either (a) July 30, 2003, as such date may be extended pursuant to and in    accordance with ***Section 2.13***, or (b) the effective date    of any other termination or cancellation of the Lenders' Commitments to lend    under and in accordance with this Agreement.
***Total Commitment means, on any date of    determination, the *sum* of all Commitments then in effect for all the    Lenders (as the same may have been reduced or canceled as provided in the    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 as a Base Rate    Loan or a Eurodollar Rate Loan.
***Unfunded Pension Liability means the excess of a    Pension Plan's benefit liabilities under *Section 4001(a)(16)*of**ERISA,    over the current value of that Pension Plan's assets, determined in    accordance with the assumptions used for funding the Pension Plan pursuant    to *Section 412*of the Code for the applicable plan year.
***Utilization Fee has the meaning set forth in ***Section    2.08(b).
Voting Percentage means, as to any Lender, (a) at    any time prior to the earlier of the Termination Date or the Term Conversion    Date, such Lender's Pro Rata Share and (b) at any time from and after the    earlier of the Termination Date or the Term Conversion Date, the percentage    (carried out to the ninth decimal place) which (i) the Principal Debt owed    to such Lender bears to (ii) the Principal Debt owed to all Lenders; *provided    that* any Defaulting Lender's Voting Percentage shall be deemed to be -0-,    and the respective Pro Rata Shares and Voting Percentages of the other    Lenders shall be recomputed for purposes of this definition and the    definition of "*Required Lenders*" without regard to such    Defaulting Lender's Commitment or the Principal Debt owed to such Defaulting    Lender.
***Wireless Acquisition    means the acquisition of certain wireless assets from CenturyTel Inc.    pursuant to the Wireless Purchase Agreement.***Wireless Purchase Agreement means the Stock    Purchase Agreement dated as of March 19, 2002, between ALLTEL    Communications, Inc. and CenturyTel Inc.
**1.02 ****Other Interpretive Provisions.**
(a) The meanings of defined terms are equally applicable    to the singular and plural forms of the defined terms.

(b) (i) The words "***herein***" and    "***hereunder***" and words of similar import when used in    any Loan Document shall refer to such Loan Document as a whole and not to    any particular provision thereof.

 

13

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

(iii) The term "***including***" is by    way of example and not limitation.

(iv) The term "***documents***"    includes any and all instruments, documents, agreements, certificates,    notices, reports, financial statements, and other writings, however    evidenced, whether in physical or electronic form.

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

(d) Section headings herein and in the other Loan    Documents are included for convenience of reference only and shall not    affect the interpretation of this Agreement or any other Loan Document.
**                     1.03   ****Accounting Terms.**
All accounting terms not specifically or completely    defined herein shall be construed in conformity with, and all financial data    (including financial ratios and other financial calculations) required to be    submitted pursuant to this Agreement shall be prepared in conformity with,    GAAP, as in effect from time to time, applied in a manner consistent with    that used in preparing the Audited Financial Statements, except as otherwise    specifically prescribed herein.
**                     1.04   ****Rounding.**
Any financial ratios required to be maintained by the    Borrower pursuant to this Agreement shall be calculated by dividing the    appropriate component by the other component, carrying the result to one    place more than the number of places by which such ratio is expressed herein    and rounding the result up or down to the nearest number (with a rounding-up    if there is no nearest number).
**                     1.05   ****References to Agreements and Laws.**
Unless otherwise expressly provided herein,    (a) references to Organization Documents, agreements (including the    Loan Documents), and other contractual instruments shall be deemed to    include all subsequent amendments, restatements, extensions, supplements,    and other modifications thereto, but only to the extent that such    amendments, restatements, extensions, supplements, and other modifications    are not prohibited by any Loan Document, and (b) references to any Law shall    include all statutory and regulatory provisions consolidating, amending,    replacing, supplementing, or interpreting such Law.

**ARTICLE II.**
**THE****COMMITMENTS and LOANS**
**                     2.01    Loans.
Subject to the terms and conditions set forth herein, each  Lender severally agrees to make loans (each such loan, a "***Loan***")  to the Borrower from time to time, on any Business Day from the Closing Date  to the Termination Date, in an aggregate amount not to exceed at any time  outstanding the amount of such Lender's Commitment; *provided that*,  after giving effect to any Borrowing, (i) the aggregate Principal Debt shall  not exceed the Total Commitment, and (ii) the Principal Debt owed to any  Lender shall not exceed such Lender's Commitment. Within the limits of each  Lender's Commitment, and subject to the other terms and conditions hereof, the  Borrower may borrow under this ***Section 2.01***, prepay under ***Section  2.03***, and reborrow under this ***Section 2.01***. Loans may be  Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

 

14
**2.02    Borrowings, Conversions, and  Continuations of Loans.

(a) Each Borrowing, each conversion of Borrowings from one  Type to the other, and each continuation of Eurodollar Rate Loans shall be  made upon the Borrower's irrevocable notice to the Administrative Agent, which  may be given by telephone. Each such notice must be received by the  Administrative Agent not later than 10:00 a.m., Dallas, Texas time, (i) three  Business Days prior to the requested date of any Borrowing of, conversion to,  or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar  Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing  of Base Rate Loans; *provided that,* if the Borrower wishes to request  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 later than 10:00 a.m., Dallas, Texas time, four  Business Days prior to the requested date of Borrowing, conversion, or  continuation. Each such telephonic notice must be confirmed promptly by  delivery to the Administrative Agent of a written Loan Notice, appropriately  completed and signed by a Responsible Officer of the Borrower. Each Borrowing  of, conversion to, or continuation of Eurodollar Rate Loans shall be in a  principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess  thereof. Each Borrowing of, or conversion to, Base Rate Loans shall be in a  principal amount of $1,000,000 or a whole multiple of $500,000 in excess  thereof. Each Loan Notice (whether telephonic or written) shall specify (i)  whether the Borrower is requesting a Borrowing, a conversion of Borrowings  from one Type to the other, or a continuation of Borrowings as the same Type,  (ii) the requested date of the Borrowing, conversion, or continuation, as the  case may be (which shall be a Business Day), (iii) the principal amount of  Loans to be borrowed, converted, or continued, (iv) the Type of Borrowings to  be borrowed or to which existing Borrowings are to be converted, and (v) if  applicable, the duration of the Interest Period with respect thereto. If the  Borrower fails to specify a Type of Borrowing in a Loan Notice or if the  Borrower fails to give a timely notice requesting a conversion or  continuation, then the applicable Borrowing shall be made or continued as, or  converted to, Base Rate Loans. Any such automatic conversion to Base Rate  Loans shall be effective as of the last day of the Interest Period then in  effect with respect to the applicable Eurodollar Rate Loans. If the Borrower  requests a Borrowing of, conversion to, or continuation of Eurodollar Rate  Loans in any such Loan Notice, but fails to specify an Interest Period, it  will be deemed to have specified an Interest Period of one month.

(b) Following receipt of a Loan Notice, the Administrative  Agent shall promptly notify each Lender of the amount of its Pro Rata Share of  the applicable Borrowings, and if no timely notice of a conversion or  continuation is provided by the Borrower, the Administrative Agent shall  notify each Lender of the details of any automatic conversion to Base Rate  Loans described in the preceding ***subsection (a)***. Each  Lender shall make its Pro Rata Share of each Borrowing available to the  Administrative Agent in immediately available funds 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  applicable conditions set forth in ***Section 4.02***, the  Administrative Agent shall make all funds so received available to the  Borrower no later than 2:00 p.m. Dallas, Texas time in like funds as received  by the Administrative Agent either by (i) crediting the account of the  Borrower on the books of Bank of America with the amount of such funds or (ii)  wire transfer of such funds, in each case in accordance with instructions  provided to (and reasonably acceptable to) the Administrative Agent by the  Borrower.

(c) Except as otherwise provided herein, a Eurodollar Rate  Loan may be continued or converted only on the last day of the Interest Period  for such Eurodollar Rate Loan. During the existence of a Default or Event of  Default, no Borrowings may be requested as, converted to, or continued as  Eurodollar Rate Loans without the consent of the Required Lenders, and the  Required Lenders may

15

demand that any or all of the then outstanding Eurodollar  Rate Loans be converted immediately to Base Rate Loans.

(d) The Administrative Agent shall promptly notify the  Borrower and the Lenders of the interest rate applicable to any Interest  Period for Eurodollar Rate Loans upon determination of such interest rate. The  determination of the Eurodollar Rate by the Administrative Agent shall be  conclusive in the absence of manifest error. At any time that Base Rate Loans  are outstanding, the Administrative Agent shall notify the Borrower and the  Lenders of any change in Bank of America's prime rate used in determining the  Base Rate promptly following the public announcement of such change.

(e) After giving effect to all Borrowings, all conversions  of Borrowings from one Type to the other, and all continuations of Borrowings  as the same Type, there shall not be more than 8 Interest Periods in effect on  any day with respect to Borrowings.
**                     2.03   ****Prepayments.**
(a) The Borrower may, upon notice to the Administrative  Agent, at any time or from time to time voluntarily prepay the Loans, in whole  or in part, without premium or penalty; *provided**that* (i) such  notice must be received by the Administrative Agent not later than 10:00 a.m.,  Dallas, Texas time, (A) three Business Days prior to any date of prepayment of  Eurodollar Rate Loans, and (B) on the date of prepayment of Base Rate Loans,  (ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount of  $5,000,000 or a whole multiple of $1,000,000 in excess thereof, and (iii) any  prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or  a whole multiple of $500,000 in excess thereof, or, in each case, if less, the  entire principal amount thereof then outstanding. Each such notice shall  specify the date and amount of such prepayment and the Type(s) of Loans to be  prepaid. The Administrative Agent will promptly notify each Lender of its  receipt of each such notice and of the amount of such Lender's Pro Rata Share  of such prepayment. If such notice is given by the Borrower, the Borrower  shall make such prepayment and the payment amount specified in such notice  shall be due and payable on the date specified therein. Any prepayment of a  Eurodollar Rate Loan shall be accompanied by all accrued interest thereon,  together with any additional amounts then due and payable pursuant to ***Section  3.05***. Each such prepayment shall be applied to the Loans of the  Lenders in accordance with their respective Pro Rata Shares.

(b) If, for any reason, the Principal Debt at any time  exceeds the Total Commitment then in effect, the Borrower shall immediately  prepay the Loans in an aggregate amount equal to such excess.
**                     2.04   ****Reduction or Termination of Commitments.**
The Borrower may, upon notice to the Administrative Agent,  terminate the Total Commitment, or permanently reduce the Total Commitment to  an amount not less than the then outstanding Principal Debt; *provided that*  (i) any such notice shall be received by the Administrative Agent not later  than 10:00 a.m., Dallas, Texas time, five Business Days prior to the date of  termination or reduction, and (ii) any such partial reduction shall be in an  aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess  thereof. The Administrative Agent shall promptly notify the Lenders of any  such notice of reduction or termination of the Total Commitment. Once reduced  in accordance with this ***Section 2.04***, the Total Commitment  may not be increased. Any reduction of the Total Commitment shall be applied  to the Commitment of each Lender according to its Pro Rata Share.
**2.05    Change of Control.
The Borrower shall give the Administrative Agent  and each Lender written notice of a Change of Control with respect to the  Borrower no later than two Business Days after a Responsible Officer of the  Borrower has knowledge of such Change of Control. No later than 30 days 

16

 

 after  the giving by the Borrower of such notice, each Lender shall have the right,  in its sole discretion, to notify the Borrower in writing (with a copy to the  Administrative Agent) of its election to terminate all of its Commitment  hereunder, to require a mandatory prepayment of all Obligations owed to such  Lender, and to cease to be a Lender party hereto, which commitment termination  and mandatory prepayment shall occur on the 30th day after such  notice is received by the Borrower. If a Change of Control occurs, the  Borrower shall have no right to make any new Borrowings unless and until the  Commitments of all Lenders that elect to terminate their Commitments pursuant  to this ***Section 2.05*** have been terminated, and all Obligations  owing to such Lenders have been paid in full. The Borrower shall have the  right to replace each terminating Lender pursuant to ***Section 10.16***,  which replacement shall occur on or before the date such terminating Lender's  Commitment would have been terminated pursuant to this ***Section 2.05***.
**                       2.06   ****Repayment of Principal Debt.**
The Borrower shall repay to the Lenders on the Maturity Date the    aggregate Principal Debt outstanding on such date.

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

(b) While any Event of Default exists or after    acceleration, the Borrower shall pay interest on the principal amount of all    outstanding Obligations (including past due interest) at a fluctuating    interest rate per annum at all times equal to the Default Rate to the    fullest extent permitted by applicable Laws. Accrued and unpaid interest on    past due amounts (including interest on past due interest) shall be due and    payable upon demand.

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

**                       2.08   ****Fees.**
(a) Facility Fee. The Borrower shall pay to the    Administrative Agent for the account of each Lender, in accordance with its    Pro Rata Share, a facility fee (the "***Facility Fee***")    equal to the Applicable Rate (applied on a 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 Term Conversion Date has    occurred, on the Principal Debt). The Facility Fee shall accrue at all times    from the Closing Date until the date the Principal Debt has been paid in    full and the Total Commitment has been terminated and shall be due and    payable quarterly in arrears on the last Business Day of each March, June,    September, and December, commencing with the first such date to occur after    the Closing Date, and ending on the date both the Principal Debt has been    paid in full and the Total Commitment has been terminated. The Facility Fee    shall be calculated quarterly in arrears, in accordance with ***Section    2.09***, and if there is any change in the Applicable Rate during any    quarter, the actual daily amount shall be computed and multiplied by the    Applicable Rate (on a per diem basis) separately for each period during such    quarter that such Applicable Rate was in effect. The Facility Fee shall    accrue at all times, including at any time during which one or more of the    conditions in ***Article IV*** is not met.

 

17

(b) Utilization Fee. The Borrower shall pay to the    Administrative Agent for the account of each Lender, in accordance with its    Pro Rata Share, a utilization fee (the "***Utilization Fee***")    equal to the Applicable Rate (applied on a per diem basis) *times* the    actual daily aggregate Principal Debt; *provided that*(i)**prior    to the earlier of the Termination Date or the Term Conversion Date, the    Utilization Fee shall be payable only in respect of each day that such    aggregate Principal Debt exceeds 50% of the Total Commitment, and (ii) on    and after the earlier of the Termination Date or the Term Conversion Date,    the Utilization Fee shall be payable only in respect of each day that such    aggregate Principal Debt exceeds 50% of the Total Commitment in existence on    the Business Day immediately prior to the termination of the Total    Commitment (whether on the Termination Date or the Term Conversion Date).    The Utilization Fee shall be due and payable quarterly in arrears on the    last Business Day of each March, June, September, and December, commencing    with the first such date to occur after the Closing Date, and ending on the    date both the Principal Debt has been paid in full and the Total Commitment    has been terminated. The Utilization Fee shall be calculated quarterly in    arrears in accordance with ***Section 2.09***,******and if    there is any change in the Applicable Rate during any quarter, the actual    daily amount shall be computed and multiplied by the Applicable Rate (on a    per diem basis) separately for each period during such quarter that such    Applicable Rate was in effect. The Utilization Fee shall accrue at all    times, including at any time during which one or more of the conditions in ***Article    IV*** is not met.

(c) Other Fees. The Borrower shall pay to the    Administrative Agent (for its own account) the fees described in the letter    agreement dated April 29, 2002 (as thereafter amended or modified from time    to time, the **"*Administrative Fee Agreement***"),    between the Borrower and the Administrative Agent, which payments shall be    made on the dates and in the amounts specified in such Administrative Fee    Agreement.

**                       2.09   ****Computation of Interest and Fees.**
Computation of interest on Base Rate Loans shall be    calculated on the basis of a year of 365 or 366 days, as the case may be,    and the actual number of days elapsed. Computation of all other types of    interest and all fees shall be calculated on the basis of a year of 360 days    and the actual number of days elapsed, which results in a higher yield to    the payee thereof than a method based on a year of 365 or 366 days. Interest    shall accrue on each Loan for the day on which the Loan is made, and shall    not accrue on a Loan, or any portion thereof, for the day on which the Loan    or such portion is paid; *provided**that* any Loan that is repaid    on the same day on which it is made shall bear interest for one day.

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

 

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**                       2.11   ****Payments Generally.**
(a) All payments to be made by the Borrower shall be made    without condition or deduction for any counterclaim, defense, recoupment, or    setoff. Except as otherwise expressly provided herein, all payments by the    Borrower hereunder shall be made to the Administrative Agent, for the    account of the respective Lenders to which such payment is owed, at the    Administrative Agent's Office in Dollars and in immediately available funds    not later than 12:00 noon, Dallas, Texas time, on the date specified herein.    The Administrative Agent will promptly distribute to each Lender its Pro    Rata Share (or other applicable share as provided herein) of such payment in    like funds as received by wire transfer to such Lender's Lending Office. All    payments received by the Administrative Agent after 12:00 noon, Dallas Texas    time, shall be deemed received on the next succeeding Business Day and any    applicable interest or fee shall continue to accrue.

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

(c) Unless the Borrower or any Lender has notified the    Administrative Agent prior to the date any payment is required to be made by    it to the Administrative Agent hereunder, that the Borrower or such Lender,    as the case may be, will not make such payment, the Administrative Agent may    assume that the Borrower or such Lender, as the case may be, has timely made    such payment and may (but shall not be so required to), in reliance thereon,    make available a corresponding amount to the Person entitled thereto. If and    to the extent that such payment was not in fact made to the Administrative    Agent in immediately available funds, then:

(i) if the Borrower failed to make such payment, each    Lender shall forthwith on demand repay to the Administrative Agent the    portion of such assumed payment that was made available to such Lender in    immediately available funds, together with interest thereon in respect of    each day from and including the date such amount was made available by the    Administrative Agent to such Lender to the date such amount is repaid to the    Administrative Agent in immediately available funds, at the Federal Funds    Rate from time to time in effect; and

(ii) if any Lender failed to make such payment, such    Lender shall forthwith on demand pay to the Administrative Agent the amount    thereof in immediately available funds, together with interest thereon for    the period from the date such amount was made available by the    Administrative Agent to the Borrower to the date such amount is recovered by    the Administrative Agent (the "***Compensation Period***")    at a rate per annum equal to the Federal Funds Rate from time to time in    effect. If such Lender pays such amount to the Administrative Agent, then    such amount shall constitute such Lender's Loan, included in the applicable    Borrowing. If such Lender does not pay such amount forthwith upon the    Administrative Agent's demand therefor, the Administrative Agent may make a    demand therefor upon the Borrower, and the Borrower shall pay such amount to    the Administrative Agent, together with interest thereon for the    Compensation Period at a rate per annum equal to the rate of interest    applicable to the applicable Borrowing. Nothing herein shall be deemed to    relieve any Lender from its obligation to fulfill its Commitment or to    prejudice any rights which the Administrative Agent or the Borrower may have    against any Lender as a result of any default by such Lender hereunder.

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

 

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

(e) The obligations of the Lenders hereunder to make    Loans are several and not joint. The failure of any Lender to make any Loans    on any date required hereunder shall not relieve any other Lender of its    corresponding obligation to do so on such date, and no Lender shall be    responsible for the failure of any other Lender to so make its Loans.

(f) Nothing herein shall be deemed to obligate any Lender    to obtain the funds for any Loans in any particular place or manner or to    constitute a representation by any Lender that it has obtained or will    obtain the funds for any Loan in any particular place or manner.**                       2.12    Sharing of Payments****.**
If, other than as expressly provided elsewhere herein,    any Lender shall obtain on account of any Loan made by it any payment    (whether voluntary, involuntary, through the exercise of any right of    set-off, or otherwise) by or for the account of the Borrower in excess of    its Pro Rata Share (or other share contemplated hereunder) thereof, such    Lender shall immediately (a) notify the Administrative Agent of such fact,    and (b) purchase from the other Lenders such participations in the Loans    made by them as shall be necessary to cause the Lenders to share the excess    payment in respect of such Loan in accordance with their Pro Rata Shares; *provided    that*, if all or any portion of such excess payment is thereafter    recovered from the purchasing Lender under any of the circumstances    described in ***Section 10.06*** (including pursuant to any    settlement entered into by the purchasing Lender in its discretion), such    purchase shall to that extent be rescinded and each other Lender shall repay    to the purchasing Lender the purchase price paid therefor, together with an    amount equal to such paying Lender's ratable share (according to the    proportion of (i) the amount of such paying Lender's required repayment to    (ii) the total amount so recovered from the purchasing Lender) of any    interest or other amount paid or payable by the purchasing Lender in respect    of the total amount so recovered without further interest thereon. The    Borrower agrees that any Lender so purchasing a participation from another    Lender may, to the fullest extent permitted by law, exercise all its rights    of payment (including the right of set-off, but subject to ***Section    10.09***) with respect to such participation as fully as if such Lender    were the direct creditor of the Borrower in the amount of such    participation. The Administrative Agent will keep records (which shall be    conclusive and binding in the absence of manifest error) of participations    purchased under this ***Section 2.12*** and will in each case    notify the Lenders following any such purchases or repayments. Each Lender    that purchases a participation pursuant to this ***Section 2.12***    shall from and after such purchase have the right to give all notices,    requests, demands, directions, and other communications under this Agreement    with respect to the portion of the Obligations purchased to the same extent    as though the purchasing Lender were the original owner of the Obligations    purchased.
** 
                           2.13    Extension of Termination Date.**
(a) Not earlier than 60 days prior to, nor later than 45    days prior to, the Termination Date then in effect, the Borrower may, upon    notice to the Administrative Agent (which shall promptly notify the    Lenders), request a 364-day extension of the Termination Date then in    effect. No later than 30 days after the giving by the Borrower of such    notice to the Administrative Agent, each Lender shall notify the    Administrative Agent whether or not it consents to such extension (which    consent may be given or withheld in such Lender's sole and absolute    discretion and, if given, shall not become irrevocable until the 30th    day prior to the Termination Date then in effect). Any Lender not responding    within the above 

20

 

 

time period shall be deemed not to have consented to such    extension. The Administrative Agent shall promptly, and in any event not    less than 15 days prior to the Termination Date then in effect, notify the    Borrower and the Lenders of the Lenders' responses. If any Lender declines,    or is deemed to have declined, to consent to such extension, the Borrower    may cause any such Lender to be replaced as a Lender pursuant to ***Section    10.16***at any time prior to the Termination Date then in effect.

(b) The Termination Date shall be extended only if all    Lenders (after giving effect to any replacements of the Lenders permitted    herein) (the "***Consenting Lenders***") have consented    thereto. If so extended, the Termination Date, as to the Consenting Lenders,    shall be extended to a date 364 days from the Termination Date then in    effect, effective as of the Termination Date then in effect (such existing    Termination Date being the "***Extension Effective Date***").    The Administrative Agent and the Borrower shall promptly confirm to the    Lenders such extension and the Extension Effective Date. As a condition    precedent to such extension, the Borrower shall deliver to the    Administrative Agent a certificate of the Borrower dated as of the Extension    Effective Date (in sufficient copies for each Lender) signed by a    Responsible Officer of the Borrower certifying (which certification shall be    true and correct) that, before and after giving effect to such extension,    (A) the representations and warranties contained in ***Article V***    and each Compliance Certificate are true and correct on and as of the    Extension Effective Date, except to the extent that 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) no Default or Event of    Default exists.

(c) This ***Section 2.13*** shall supersede any provisions in ***Section    10.01*** to the contrary.
**                     2.14   ****Conversion to Term Loan.**
The Borrower shall have the option to convert the    Principal Debt outstanding on the Termination Date (after giving effect to    any repayments on the Termination Date) to a Term Loan maturing one year    after the Term Conversion Date. From and after such conversion, the Term    Loan may be prepaid but not reborrowed. Such Term Loan Conversion is subject    to and on the terms and conditions set forth below:

(a) No sooner than 90 days (and not later than 10 days)    preceding the Termination Date, the Borrower shall deliver to the    Administrative Agent a Term Conversion Election in the form of ***Exhibit    B*** (a "***Term Conversion Election***"), which    shall (i) specify the Borrower's election to convert the Principal Debt to a    Term Loan on the Term Conversion Date, (ii) specify the amount of Principal    Debt 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 the Term    Conversion Request is delivered.

(b) As a condition precedent to such conversion, the    Borrower shall deliver to the Administrative Agent a certificate of the    Borrower in the form of ***Exhibit C*** dated as of the Term    Conversion Date (in sufficient copies for each Lender) signed by a    Responsible Officer of the Borrower and certifying (which certification    shall be 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, 5.05(b),******5.06,    5.07(a),***and ***5.09***) and each Compliance Certificate are    true and correct on and as of the Term Conversion Date, except to the extent    that 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) no Default or Event of Default exists.

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**ARTICLEIII.**

**TAXES,YIELD, PROTECTION AND ILLEGALITY**
**                       3.01    Taxes.
(a) Any and all payments by the Borrower to or for the  account of the Administrative Agent or any Lender under any Loan Document  shall be made free and clear of and without deduction for any and all present  or future taxes, duties, levies, imposts, deductions, assessments, fees,  withholdings, or similar charges, and all liabilities with respect thereto, *excluding*,  in the case of the Administrative Agent and each Lender, taxes imposed on or  measured by its overall net income (including branch profits tax), and  franchise taxes imposed on it by the United States government or other  jurisdiction (or any political subdivision thereof) under the Laws of which  the Administrative Agent or such Lender, as the case may be, is organized or  transacts business (all such non-excluded taxes, duties, levies, imposts,  deductions, assessments, fees, withholdings, or similar charges, and  liabilities being hereinafter referred to as "***Taxes***").  If the Borrower shall be required by any Laws to deduct any Taxes from or in  respect of any sum payable under any Loan Document to the Administrative Agent  or any Lender, (i) the sum payable shall be increased as necessary so that  after making all required deductions (including deductions applicable to  additional sums payable under this ***Section 3.01***), each of  the Administrative Agent and such Lender receives an amount equal to the sum  it would have received had no such deductions been made, (ii) the Borrower  shall make such deductions, (iii) the Borrower shall pay the full amount  deducted to the relevant taxation authority or other authority in accordance  with applicable Laws, and (iv) within 30 days after the date of such payment,  the Borrower shall furnish to the Administrative Agent (which shall forward  the same to such Lender) the original or a certified copy of a receipt  evidencing payment thereof.

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

(c) If the Borrower shall be required to deduct or pay any  Taxes or Other Taxes from or in respect of any sum payable under any Loan  Document to the Administrative Agent 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 the time interest is paid, such additional  amount that the Administrative Agent or such Lender specifies as necessary to  preserve the after-tax yield (after factoring in all taxes, including taxes  imposed on or measured by net income) that the Administrative Agent or such  Lender would have received if such Taxes or Other Taxes had not been imposed.

 

(d) The Borrower agrees to indemnify the Administrative  Agent and each Lender for (i) the full amount of Taxes and Other Taxes  (including any Taxes or Other Taxes imposed or asserted by any jurisdiction on  amounts payable under this ***Section 3.01***) paid by the  Administrative Agent and such Lender, (ii) amounts payable under the preceding  ***subsection (c)*** and (iii) any liability (including additions  to tax, penalties, interest, and expenses) arising therefrom or with respect  thereto, in each case whether or not such Taxes or Other Taxes were correctly  or legally imposed or asserted by the relevant Governmental Authority. Payment  under this ***subsection (d)*** shall be made within 30 days after the  date the Lender or the Administrative Agent makes a demand therefor.

(e) If the Administrative Agent or any Lender receives a  refund specifically in respect of any Taxes or Other Taxes as to which it has  been indemnified by the Borrower or with respect to which the Borrower has  paid additional amounts pursuant to this ***Section 3.01***, it shall  within 30 days from the date 

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of such receipt pay over such refund to the Borrower (but  only to the extent of indemnity payments made, or additional amounts paid, by  the Borrower under this ***Section 3.01*** with respect to the Taxes  or Other Taxes giving rise to such refund), net of all reasonable  out-of-pocket expenses of such Administrative Agent or any Lender and without  interest (other than interest paid by the relevant Governmental Authority with  respect to such refund); *provided that* the Borrower, upon the request  of such Administrative Agent or any Lender, agrees to repay the amount paid  over to the Borrower (plus penalties and interest) to such Administrative  Agent or any Lender in the event such Administrative Agent or any Lender is  required to repay such refund to such Governmental Authority.

 
**                     3.02   ****Illegality.**
If any Lender determines that any Law has made it unlawful,  or that any Governmental Authority has asserted that it is unlawful, for any  Lender or its applicable Lending Office to make, maintain, or fund Eurodollar  Rate Loans, or materially restricts the authority of such Lender to purchase  or sell, or to take deposits of, Dollars in the applicable offshore Dollar  market, or to determine or charge interest rates based upon the Eurodollar  Rate, then, on notice thereof by such Lender to the Borrower through the  Administrative Agent, any obligation of such Lender to make or continue  Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans  shall be suspended until such Lender notifies the Administrative Agent and the  Borrower that the circumstances giving rise to such determination no longer  exist. Upon receipt of such notice, the Borrower shall, upon demand from such  Lender (with a copy to the Administrative Agent), prepay or, if applicable,  convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on  the last day of the Interest Period therefor, if such Lender may lawfully  continue to maintain such Eurodollar Rate Loans to such day, or immediately,  if such Lender may not lawfully continue to maintain such Eurodollar Rate  Loans. Upon any such prepayment or conversion, the Borrower shall also pay  interest on the amount so prepaid or converted. Each Lender agrees to  designate a different Lending Office if such designation will avoid the need  for such notice and will not, in the good faith judgment of such Lender,  otherwise be materially disadvantageous to such Lender.
**                     3.03   ****Inability to Determine Rates.**
If the Administrative Agent determines, in connection with  any request for a Eurodollar Rate Loan or a conversion to or continuation  thereof, that (a) Dollar deposits are not being offered to banks in the  applicable Dollar market for the applicable amount and Interest Period of such  Eurodollar Rate Loan, (b) Required Lenders determine that for any reason  adequate and reasonable means do not exist for determining the Eurodollar Rate  for any required Interest Period with respect to a proposed Eurodollar Rate  Loan, or (c) that the Eurodollar Rate for any requested Interest Period with  respect to a proposed Eurodollar Rate Loan does not adequately and fairly  reflect the cost to the Lenders of funding such Eurodollar Rate Loan, the  Administrative Agent will promptly notify the Borrower and each Lender.  Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate  Loans shall be suspended until the Administrative Agent (upon the instruction  of the Required Lenders) revokes such notice. Upon receipt of such notice, the  Borrower may revoke any pending request for a Borrowing, conversion, or  continuation of Eurodollar Rate Loans or, failing that, will be deemed to have  converted such request into a request for a Borrowing of Base Rate Loans in  the amount specified therein.
**                     3.04   ****Increased Cost and Reduced Return; Capital    Adequacy; Reserves on Eurodollar Rate Loans.**
(a) If any Lender determines that as a result of the  introduction of or any change in or in the interpretation of any Law, or such  Lender's reasonable compliance therewith, there shall be any increase in the  cost to such Lender of agreeing to make or making, funding, or maintaining  Eurodollar Rate Loans, or a reduction in the 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 in  amount 

23

 

resulting from (i) Taxes or Other Taxes (as to which ***Section  3.01*** shall govern), (ii) changes in the basis of taxation of overall  net income or overall gross income by the United States or any foreign  jurisdiction or any political subdivision of either thereof under the Laws of  which such Lender is organized or has its Lending Office, and (iii) reserve  requirements contemplated by ***Section 3.04(c)***, then from time to  time upon demand of such Lender (with a copy of such demand to the  Administrative Agent), the Borrower shall pay to such Lender such additional  amounts as will compensate such Lender for such increased cost or reduction.

(b) If any Lender determines that the introduction of any  Law regarding capital adequacy or any change therein or in the interpretation  thereof, or reasonable compliance by such Lender (or its Lending Office)  therewith, has the effect of reducing the rate of return on the capital of  such Lender or any corporation controlling such Lender as a consequence of  such Lender's obligations hereunder (taking into consideration its policies  with respect to capital adequacy and such Lender's desired return on capital),  then from time to time upon demand of such Lender (with a copy of such demand  to the Administrative Agent), the Borrower shall pay to such Lender such  additional amounts as will compensate such Lender for such reduction.

(c) At any time and as long as any Lender shall be required  to maintain reserves with respect to liabilities or assets consisting of or  including Eurocurrency funds or deposits (currently known as "***Eurocurrency  liabilities***"), the Borrower shall pay to such Lender additional  costs on the unpaid principal amount of each Eurodollar Rate Loan equal to the  actual costs of such reserves allocated to such Eurodollar Rate Loan by such  Lender (as determined by such Lender in good faith, which determination shall  be conclusive), which shall be due and payable on each date on which interest  is payable on such Eurodollar Rate Loan; *provided that*the Borrower  shall have received at least 15 days' prior notice (with a copy to the  Administrative Agent) of such additional interest from such Lender. If a  Lender fails to give notice 15 days prior to the relevant Interest Payment  Date, such additional interest shall be due and payable 15 days from receipt  of such notice. Each Lender represents to the Borrower that as of the Closing  Date it is not required to maintain reserves with respect to Eurocurrency  Liabilities; *provided that* such representation (i) does not apply to  any date after the Closing Date and (ii) is not made by any Lender that is not  party to this Agreement on the Closing Date.

(d) With respect to each demand by a Lender under this ***Section  3.04***, no Lender shall have the right to demand compensation under this***Section 3.04*** for any period which is 90 days prior to the date such  Lender gives such demand for compensation to the Borrower.
**                     3.05   ****Funding Losses.**
Upon demand of any Lender (with a  copy to the Administrative Agent) from time to time, the Borrower shall  promptly compensate such Lender for and hold such Lender harmless from any  loss, cost, or expense incurred by it as a result of:
(a) any continuation, conversion, payment, or prepayment of  any Borrowing other than a Base Rate Loan on a day other than the last day of  the Interest Period for such Borrowing (whether voluntary, mandatory,  automatic, by reason of acceleration, or otherwise);

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

(c) any assignment of a Eurodollar Rate Loan on a day other  than the last day of the Interest Period therefor as a result of a request by  the Borrower pursuant to ***Section 10.16***, including any loss of  anticipated profits and any loss or expense arising from the liquidation or  reemployment of funds 

24

obtained by it to maintain such Loan or from fees payable  to terminate the deposits from which such funds were obtained. The Borrower  shall also pay any customary administrative fees charged by such Lender in  connection with the foregoing.

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

 
**                     3.06    Matters Applicable to all Requests for Compensation.**
(a) A certificate of the Administrative Agent or any Lender  to the Borrower, claiming compensation under this ***Article III***  and setting forth in reasonable detail the additional amount or amounts to be  paid to it hereunder and the basis for the claim, shall be conclusive in the  absence of manifest error. In determining such amount, the Administrative  Agent or such Lender may use any reasonable averaging and attribution methods.

(b) Upon any Lender's making a claim for compensation under  ***Section 3.01*** or ***3.04***, the Borrower may remove or  replace such Lender in accordance with ***Section 10.16***.    
**                     3.07   ****Survival.**
All of the Borrower's obligations under this ***Article  III*** shall survive termination of the Commitments and payment in full  of all the other Obligations.

**ARTICLEIV.**
**CONDITIONSPRECEDENT**
**                    
                     4.01    Conditions to Closing.

This Agreement shall not become effective  unless the following conditions precedent are satisfied:
(a) Unless waived by all the Lenders, the Administrative  Agent's receipt of the following, each of which shall be originals or  facsimiles (followed promptly by originals), each of which shall be dated the  Closing Date (or, in the case of certificates of governmental officials, a  recent date before the Closing Date):

(i) counterparts of this Agreement, sufficient in number  for distribution to the Administrative Agent, each Lender, and the Borrower,  executed by the Administrative Agent, the Syndication Agent, each Lender, and  the chairman or chief executive officer and president of the Borrower;

(ii) A Note executed by a Responsible Officer of the  Borrower in favor of each Lender requesting such a Note, in a principal amount  equal to such Lender's Commitment;

(iii) a Secretary's Certificate in the form of ***Exhibit G,***  signed by the Responsible Officers named therein;

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

25

(v) a certificate signed by a Responsible Officer of the  Borrower certifying (A) that there has been no change, occurrence, or  development since the date of the Audited Financial Statements, which has or  could be reasonably expected to have a material adverse effect on the  business, assets, liabilities (actual or contingent), operations, condition  (financial or otherwise), or prospects of the Borrower and its Subsidiaries  taken as a whole, and (B) the current Debt Ratings (which Debt Rating must be  a minimum of BBB+/Baa1 by both S&P and Moody's, respectively) and further  certifying that neither rating agency has indicated that such Debt Ratings  would be downgraded below BBB+/Baa1, after giving effect to the execution of  the Loan Documents and any Acquisition closed on or before the Closing Date;

(vi) an opinion of counsel to the Borrower in the form of ***Exhibit  H***; and

(vii) such other assurances, certificates, documents,  consents, or opinions, in form and substance reasonably satisfactory to the  Administrative Agent, as the Administrative Agent or the Required Lenders  reasonably may require.

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

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

(d) The representations and warranties of the Borrower  contained in ***Article V*** shall be true and correct on and as of  the Closing Date.

(e) The Closing Date shall have occurred on or before July  31, 2002.
**                     4.02   ****Conditions to all Loans.**
The obligation of each Lender to honor any Loan Notice  (other than a Loan Notice requesting only a conversion of Loans to the other  Type, or a continuation of Eurodollar Rate Loans) on or after the Closing Date  is subject to the satisfaction of the following conditions precedent:

(a) The representations 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 such Loan Notice  is requested to be honored on the date of the Closing Date) and each  Compliance Certificate shall be true and correct on and as of the date of such  Loans, except to the extent that such representations and warranties  specifically refer to an earlier date, in which case they shall be true and  correct as of such earlier date;

(b) No Default or Event of Default shall exist, or would  result from such proposed Loan;

(c) The Administrative Agent shall have received a Loan  Notice in accordance with the requirements hereof; and

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

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Each Loan Notice (other than a Loan Notice requesting only  a conversion of a Borrowing to the other Type or a continuation of a  Eurodollar Rate Loan) submitted by the Borrower shall be deemed to be a  representation and warranty that the conditions specified in this ***Section 4.02***have been satisfied on and as of the date of the applicable Loans.

**ARTICLE V.****REPRESENTATIONS AND WARRANTIES**
The Borrower represents and warrants to the Administrative  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 good standing    under the Laws of the jurisdiction of its incorporation or organization,    (b) has all requisite power and authority and all governmental    licenses, authorizations, consents, and approvals to own its assets and to    carry on its business, (c) is duly qualified and is licensed and in good    standing under the Laws of each jurisdiction where its ownership, lease, or    operation of properties or the conduct of its business requires such    qualification or license, and (d) is in compliance with all Laws, except in    each case referred to in ***clauses (b), (c),*** or ***(d)***    of this ***Section 5.01***, to the extent that failure to do so    would not reasonably be expected to have a Material Adverse Effect.
**                     5.02   ****Authorization; No Contravention.**The execution, delivery, and performance by the Borrower    of each Loan Document, (a) have been duly authorized by all necessary    corporate or other organizational action and do not and will not (i) contravene    the terms of any of the Borrower's Organization Documents, (ii) conflict    with or result in any breach or contravention of, or the creation of any    Lien under, any material Contractual Obligation to which the Borrower is a    party or any order, injunction, writ, or decree of any Governmental    Authority to which the Borrower or its property is subject, or (iii) violate    any Law, and (b) require no consent, approval, or authorization from    any Person which has not been obtained.
**                     5.03   ****Governmental Authorization.**
No approval, consent, exemption, authorization, or other    action by, or notice to, or filing with, any Governmental Authority is    necessary or required in connection with the execution, delivery, or    performance by, or enforcement against, the Borrower of this Agreement or    any other Loan Document.
**                     5.04   ****Binding Effect.**This Agreement has been, and each other Loan Document,    when delivered hereunder, will have been duly executed and delivered by the    Borrower. This Agreement constitutes, and each other Loan Document when so    delivered will constitute, a legal, valid, and binding obligation of the    Borrower, enforceable against the Borrower in accordance with its terms,    except as enforceability may be limited by general principles of equity and    applicable Debtor Relief Laws.
**                     5.05   ****Financial Statements; No Material Adverse      Effect****.**
(a) The Current Financials (i) were    prepared in accordance with GAAP throughout the period covered thereby,    except as otherwise expressly noted therein, (ii) fairly present, in all    material respects, the financial condition of the Borrower and its    Subsidiaries as of the date thereof and their results of operations for the    period covered thereby in accordance with GAAP throughout the period covered    thereby, except as otherwise expressly noted therein, and (iii) show all    material indebtedness and other liabilities, direct or contingent, of the    Borrower and its Subsidiaries as of the date thereof, including liabilities    for taxes, material commitments, and Indebtedness in accordance with GAAP    throughout the period covered thereby; and
 
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(b) Since the date of the Audited Financial Statements,    there has been no event or circumstance, either individually or in the    aggregate, that has had or would reasonably be expected to have a Material    Adverse Effect.
                       5.06    Litigation.
There are no actions, suits, proceedings, investigations,    claims, or disputes pending or, to the knowledge of the Borrower after due    inquiry, threatened or contemplated, at law, in equity, in arbitration or    before any Governmental Authority, by or against the Borrower or any of its    Subsidiaries or against any of their properties or revenues 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    individually or in the aggregate would reasonably be expected to have a    Material Adverse Effect.
**                     5.07   ****No Default.**(a) Neither the Borrower nor any Subsidiary is in default    under or with respect to any Contractual Obligation which could, either    individually or in the aggregate, be reasonably expected to have a Material    Adverse Effect; and (b) no Default or Event of Default has occurred and is    continuing or would result from the consummation of the transactions    contemplated by this Agreement or any other Loan Document.
**                     5.08   ****Ownership of Property; Liens.**
Each of the Borrower and each Subsidiary has good 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 the aggregate,    reasonably be expected to have a Material Adverse Effect. The property of    the Borrower and its Subsidiaries is subject to no Liens, other than the    presently existing and future Liens permitted by ***Section 7.01***.
**                     5.09   ****Environmental Compliance.**The Borrower and its Subsidiaries conduct in the ordinary    course of business a review of the effect of existing Environmental Laws and    claims alleging potential liability or responsibility for violation of any    Environmental Law on their respective businesses, operations and properties,    and as a result thereof the Borrower has reasonably concluded that such    Environmental Laws and claims would not, individually or in the aggregate,    reasonably be expected to have a Material Adverse Effect.
**                     5.10   ****Taxes.**
The Borrower and its Subsidiaries have filed all federal,    state, and other material tax returns and reports required to be filed, and    have paid all material federal, state, and other taxes, assessments, fees,    and other governmental charges levied or imposed upon them or their    properties, income, or assets otherwise due and payable, except those which    are being contested in good faith by appropriate proceedings diligently    conducted and for which adequate reserves have been provided in accordance    with GAAP. There is no proposed tax assessment against the Borrower or any    Subsidiary that would, if made, have a Material Adverse Effect.    
**5.11   ****ERISA Compliance**. Except to the extent      that any such event, condition, claim, action, lawsuit, violation,      prohibited transaction, application, contribution, or liability,      individually or when aggregated with any other event, condition, claim,      action, lawsuit, violation, prohibited transaction, application,      contribution, or liability contemplated by this ***Section 5.11***,      would not reasonably be expected to result in a Material Adverse Effect or      liabilities (individually or in the aggregate) exceeding $250,000,000:    (a) Each Plan is in compliance in all material respects    with the applicable provisions of ERISA, the Code, and other Federal or    state Laws. Each Plan that is intended to qualify under *Section 401(a)*of    the**Code has received a favorable determination letter from the IRS    or an application for such a letter is currently being processed by the IRS    with respect thereto and, to the best knowledge of the 
28
Borrower, nothing has occurred which would prevent, or    cause the loss of, such qualification. The Borrower and each ERISA Affiliate    have made all required contributions to each Plan subject *to Section 412*of    the**Code, and no application for a funding waiver or an extension of    any amortization period pursuant to *Section 412*of the**Code    has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the    Borrower, threatened claims, actions or lawsuits, or action by any    Governmental Authority, with respect to any Plan. There has been no    prohibited transaction or violation of the fiduciary responsibility rules    with respect to any Plan which is continuing.
(c) (i) No ERISA Event has occurred and is continuing or    is reasonably expected to occur, (ii) no Pension Plan has any Unfunded    Pension Liability, (iii) neither the Borrower nor any ERISA Affiliate has    incurred, or reasonably expects to incur, any liability under *Title IV*of**ERISA with respect to any Pension Plan (other than premiums due and not    delinquent under *Section 4007*of**ERISA), other than such    liabilities which have been discharged on or prior to the Closing Date, (iv)    neither the Borrower nor any ERISA Affiliate has incurred, or reasonably    expects to incur, any liability (and no event has occurred which, with the    giving of notice under *Section 4219*of**ERISA, would result in    such liability) under *Sections 4201*or*4243*of**ERISA    with respect to a Multiemployer Plan, other than such liabilities which have    been discharged on or prior to the Closing Date, and (v) neither the    Borrower nor any ERISA Affiliate has engaged and is continuing to engage in    a transaction that could be subject to *Sections 4069*or*4212(c)*of**ERISA.
**                     5.12   ****Margin Regulations; Investment Company Act;      Public Utility Holding Company Act.**
(a) The Borrower is not engaged and will not engage,    principally or as one of its important activities, in the business of    purchasing or carrying margin stock (within the meaning of Regulation U    issued by the Board), or extending credit for the purpose of purchasing or    carrying margin stock. Following the application of the proceeds of any    Borrowing, not more than 25% of the value of the assets (either of the    Borrower only or of the Borrower and its Subsidiaries on a consolidated    basis) subject to the provisions of ***Sections 7.01***or***7.04***will be margin stock.
(b) None of the Borrower, any "*Affiliate"*    (as defined in the *Public Utility Holding Company Act of 1935*, and    excluding any natural Persons) of the Borrower, or any Subsidiary (i) is a    "*holding company*" within the meaning of the *Public    Utility Holding Company Act of 1935*, or (ii) is or is required to be    registered as an "*investment**company*" under the *Investment    Company Act of 1940*.
**                     5.13   ****Rank of Debt.**The Obligations are "*Senior Debt*" and    will constitute direct, unconditional, and general obligations of the    Borrower ranking prior to or pari passu in all respects with all of the    Borrower's other Indebtedness, except as permitted by ***Section 7.01***.
**                     5.14   ****Disclosure.**

No representation or warranty made by the Borrower in any  Loan Document (excluding Financial Statements, which are addressed in ***Section  5.05***) contains any untrue statement of a material fact. There is no  fact known to the Borrower which could reasonably be expected to have a  Material Adverse Effect and which has not been disclosed to the Lenders in  writing.

 

29

**ARTICLE VI.****AFFIRMATIVE COVENANTS**
So long as any Lender shall have any Commitment hereunder  or any Loan or Obligation shall remain unpaid or unsatisfied, 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.**
Deliver to the Administrative Agent:
(a) as soon as available, but in any event within 120    days after the end of each fiscal year of the Borrower, Financial Statements    showing the consolidated financial condition and results of operations of    the Borrower and its Subsidiaries as at the end of such fiscal year,    accompanied by a report and opinion of an independent certified public    accountant of nationally recognized standing reasonably acceptable to the    Required Lenders, which report and opinion shall be prepared in accordance    with generally accepted auditing standards and shall not be subject to any    "*going concern*" or like qualification or exception or any    qualification or exception as to the scope of the audit nor to any    qualifications and exceptions not reasonably acceptable to the    Administrative Agent; and
(b) as soon as available, but in any event within 45 days    after the end of each of the first three fiscal quarters of each fiscal year    of the Borrower, Financial Statements showing the consolidated financial    condition and results of operations of the Borrower and its Subsidiaries as    at the end of such fiscal quarter, and the related consolidated statements    of income and cash flows for such fiscal quarter and for the portion of the    Borrower's fiscal year then ended, all in reasonable detail and certified by    a Responsible Officer of the Borrower as fairly presenting, in all material    respects, the financial condition, results of operations and cash flows of    the Borrower and its consolidated Subsidiaries in accordance with GAAP,    subject only to normal year-end audit adjustments and the absence of    footnotes.
**                     6.02   ****Certificates; Other Information.**Deliver to the Administrative Agent (or otherwise make    available to the Lenders in the case of ***subsection (d)***below):
(a) concurrently with the delivery of the financial    statements referred to in ***Section 6.01(a)***, a certificate of    its independent certified public accountants certifying such financial    statements and stating that in making the examination necessary for their    report and opinion thereon no knowledge was obtained of any Default or Event    of Default under ***Sections 8.01(a)***or***(b)*** (but    only to the extent ***Section 8.01(b)*** relates to the covenant in ***Section    7.09***), or, if any such Default or Event of Default shall exist,    stating the nature and status of such event;
(b) concurrently with the delivery of the Financial    Statements referred to in ***Sections 6.01(a)*** and ***(b),***    a duly completed Compliance Certificate signed by a Responsible Officer of    the Borrower;
(c) promptly after the same are available, copies (which    may be delivered in an electronic format satisfactory to the Administrative    Agent) of each of the following documents of the Borrower not otherwise    required to be delivered to the Administrative Agent pursuant to this    Agreement:
(i) proxy statements and annual reports to shareholders;
(ii) annual reports on Form 10-K; and
(iii) quarterly reports on Form 10-Q;
 
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(d) promptly after the same are available, copies (which    may be made available in an electronic format satisfactory to the    Administrative Agent) of each current report on Form 8-K and transaction    statement on Schedule TO, 13D or 13E-3 that the Borrower may file under the *Securities    Exchange Act of 1934*; and
(e) as soon as reasonably practicable, such additional    information, in form and detail reasonably satisfactory to the    Administrative Agent or the Lender requesting the information regarding the    business, financial, or corporate affairs of the Borrower or any Subsidiary,    or compliance with the terms of the Loan Documents, as the Administrative    Agent or any Lender may from time to time reasonably request by written    notice to the Borrower.
**                     6.03   ****Notices.**
Notify the Administrative Agent no later than five    Business Days after a Responsible Officer of the Borrower has knowledge:
(a) of the occurrence of any Default or Event of Default;
(b) of any matter that has resulted in a Material Adverse    Effect or would reasonably be expected to have a Material Adverse Effect;
(c) of any litigation, investigation, or proceeding    affecting the Borrower or any Subsidiary, including pursuant to any    Environmental Law, (i) in which the amount involved exceeds    $250,000,000, or (ii) in which injunctive relief or similar relief is    sought, which would be reasonably expected to have a Material Adverse    Effect; and
(d) of the occurrence of any material ERISA Event.
Each notice pursuant to this ***Section 6.03***    shall be accompanied by a statement of a Responsible Officer of the Borrower    setting forth details of the occurrence referred to therein and stating what    action the Borrower has taken and proposes to take with respect thereto,    accompanied by copies of any notice or report of, or with respect to, any    Reportable Event received by the Borrower or any Subsidiary or given by the    Borrower or any Subsidiary to the PBGC. Each notice pursuant to ***Section 6.03(a)***    shall describe the provisions 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 and    provisions of the Loan Documents, and (b) pay and discharge, as the same    shall become due and payable, all its obligations and liabilities, including    (i) all tax liabilities, assessments, and governmental charges or levies    upon it or its properties or assets, unless the same are being contested in    good faith by appropriate proceedings diligently conducted and adequate    reserves in accordance with GAAP are being maintained by the Borrower or    such Subsidiary, (ii) all lawful 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 any subordination provisions contained in any    instrument or agreement evidencing such Indebtedness, except, in each case    under the preceding ***clauses (b)(i), (b)(ii),*** and ***(b)(iii),***    to the extent such non-payment would not reasonably be expected to have a    Material Adverse Effect.
**                     6.05   ****Preservation of Existence, Etc.**
(a) Preserve, renew, and maintain in full force and    effect its legal existence and good standing under the Laws of the    jurisdiction of its organization, and (b) take all reasonable action to    maintain all rights, privileges, permits, licenses, and franchises necessary    or 
31
desirable in the normal conduct of its business, except (i)    in a transaction permitted by ***Section 7.04,***or (ii) where the    failure to do so would not reasonably be expected to have a Material Adverse    Effect.
**                     6.06**   ******Maintenance of Properties.**(a) Maintain, preserve, and protect all of its material    properties and equipment necessary in the operation of its business in good    working order and condition, ordinary wear and tear excepted, and    (b) make all necessary repairs thereto and renewals and replacements    thereof, except, in either case, where the failure to do so would not    reasonably be expected to have a Material Adverse Effect.
**                     6.07   ****Maintenance of Insurance.**
Maintain with financially sound and reputable insurance    companies not Affiliates of the Borrower, insurance with respect to its    properties and business against loss or damage of the kinds customarily    insured against by Persons engaged in the same or similar business, of such    types and in such amounts as are customarily carried under similar    circumstances by such other Persons; *provided that* the Borrower or    its Subsidiaries may maintain self-insurance in connection 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 in all material respects with the requirements of    all Laws applicable to it or to its business or property, except in such    instances in which (i) such requirement of Law is being contested in good    faith or a bona fide dispute exists with respect thereto, or (ii) the    failure to comply therewith would not be reasonably expected to have a    Material Adverse Effect.
**                     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 financial transactions    and matters involving the assets and business of the Borrower or such    Subsidiary, as the case may be, and (b) maintain such books of record    and account in material conformity with all applicable requirements of any    Governmental Authority having regulatory jurisdiction over the Borrower or    such Subsidiary, as the case may be.
**                     6.10   ****Inspection Rights.**Permit representatives and independent contractors of the    Administrative Agent and each Lender to visit and inspect any of its    properties, to examine its corporate, financial and operating records, and    make copies thereof or abstracts therefrom, and to discuss its affairs,    finances, and accounts with its directors, officers, and independent public    accountants, all at the expense of the Borrower and at such reasonable times    during normal business hours and as often as may be reasonably desired, upon    reasonable advance written notice to the Borrower; *provided that*,    when an Event of Default exists, the Administrative Agent or any Lender (or    any of their respective representatives or independent contractors) may do    any of the foregoing at the expense of the Borrower at any time during    normal business hours and without advance notice.
**                     6.11   ****Use of Proceeds.**

Use the proceeds of the Loans for working capital and other  general corporate purposes, including capital expenditures, acquisitions, and  the provision of liquidity in connection with any commercial paper program of  the Borrower.

 

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**ARTICLE VII.****NEGATIVE COVENANTS**
So long as any Lender shall have  any Commitment hereunder or any Loan or Obligation hereunder shall remain  unpaid or unsatisfied:**                     7.01   ****Liens****.**The Borrower shall not, nor shall it permit any Subsidiary  to, directly or indirectly, create, incur, assume or suffer to exist, any Lien  upon any of its property, assets, or revenues, whether now owned or hereafter  acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof in connection with  the Indebtedness listed on ***Schedule 7.02*** and identified as  secured Indebtedness on such schedule, and any renewals or extensions thereof;  *provided**that* the property subject thereto is not increased and  any renewal or extension of the Indebtedness secured or benefited thereby is  permitted by ***Sections 7.02(b*)**or***7.03(a)***;
(c) Liens for taxes not yet due or which are being  contested in good faith and by appropriate proceedings, diligently conducted,  if adequate reserves with respect thereto are maintained on the books of the  applicable Person in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,  repairmen's, or other like Liens arising in the ordinary course of business  which are not overdue for a period of more than 30 days or which are being  contested in good faith and by appropriate proceedings, diligently conducted,  if adequate reserves with respect thereto are maintained on the books of the  applicable Person;
(e) pledges or deposits in the ordinary course of business  in connection with workers' compensation, unemployment insurance, and other  social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade  contracts, and leases (other than Indebtedness), statutory obligations, surety  bonds (other than bonds related to judgments and litigation), performance  bonds, and other obligations of a like nature incurred in the ordinary course  of business;
(g) easements, rights-of-way, restrictions, and other  similar encumbrances affecting real property which, in the aggregate, are not  substantial in amount, and which do not in any case materially detract from  the value of the property subject thereto or materially interfere with the  ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money in an  aggregate amount not in excess of $250,000,000 (except to the extent covered  by independent third-party insurance as to which the insurer has acknowledged  in writing its obligation to cover), unless any such judgment remains  undischarged for a period of more than 60 consecutive days during which  execution is not effectively stayed;
(i) Liens securing Indebtedness permitted under ***Sections  7.02(e)***and***7.03(f);****provided that* (i) such Liens  do not at any time encumber any property other than the property financed by  such Indebtedness, and (ii) the Indebtedness secured thereby does not exceed  100% of cost or fair market value, whichever is lower, of the property being  acquired on the date of acquisition;
 
33
(j) Liens securing Indebtedness permitted under ***Section  7.02(f)***; and
(k) Liens securing Indebtedness permitted under ***Section  7.03(c)***;*******provided that* such Liens exist at the  time the relevant asset or Person is acquired by, or merged or consolidated  with, the applicable Subsidiary.
**                     7.02   ****Indebtedness.**
The Borrower shall not, directly or indirectly, create,  incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness existing on the date hereof and listed on ***Schedule  7.02***as Indebtedness of the Borrower, in an amount not to exceed the  amount listed on ***Schedule 7.02***, and refinancings, refundings,  renewals, extensions, and replacements of such Indebtedness that do not  increase the outstanding principal amount thereof at the time of such  refinancing, refunding, renewal, extension, or replacement;
(c) Guaranty Obligations of the Borrower in respect of  Indebtedness of Subsidiaries permitted under ***Section 7.03***;
(d) obligations (contingent or otherwise) of the Borrower  existing or arising under any Swap Contract; *provided**that* (i)  such obligations are (or were) entered into by the Borrower for the purpose of  directly mitigating risks associated with liabilities, commitments,  investments, assets, or property held or reasonably anticipated by the  Borrower, or changes in the value of securities issued by the Borrower, and  not for purposes of speculation or taking a "*market view*,"  and (ii) such Swap Contract does not contain a provision designating the  "*First Method*" (as defined in the form of the Master  Agreement) or any other provision directly or indirectly exonerating the  non-defaulting party from its obligation to make payments on outstanding  transactions to the defaulting party after the occurrence of an "*Early  Termination Date*" (as defined in such Swap Contract);
(e) Indebtedness in respect of capital leases, Synthetic  Lease Obligations, and purchase money obligations for fixed or capital assets,  *so long as*any Liens securing such Indebtedness satisfy the  requirements of ***Section 7.01(i)***;
(f) Other secured Indebtedness of the Borrower in an  aggregate principal amount not to exceed $25,000,000 at any time outstanding;  and
(g) Indebtedness of the Borrower not otherwise permitted by  this ***Section 7.02***, *so long as* (i) no Default or  Event of Default exists on the date any such Indebtedness is created,  incurred, assumed, or arises after giving effect to such incurrence of  Indebtedness, (ii) such Indebtedness is unsecured, and (iii) such Indebtedness  shall not have a claim on any assets or earnings of the Borrower or its  Subsidiaries ranking prior to the Obligations.
**                    7.03   ****Subsidiary Indebtedness.**The Borrower shall not permit any Subsidiary, directly or  indirectly, to create, incur, assume, or permit to exist any Indebtedness,  except:
(a) Indebtedness existing on the date hereof and listed on ***Schedule  7.02*** as Indebtedness of a Subsidiary, in an amount not to exceed the  amount listed on ***Schedule 7.02***, and refinancings, refundings,  renewals, extensions, and replacements of such Indebtedness that do not  increase the outstanding principal amount thereof at the time of such  refinancing, refunding, renewal, extension, or replacement;
 
34
(b) Indebtedness to the Borrower or any other Subsidiary;
(c) Indebtedness assumed in connection with the acquisition  of an asset or Indebtedness of a Person, in either case, existing at the time  such asset or Person is acquired by, or merged or consolidated with or into,  any Subsidiary (and renewals, extensions, amendments, and modifications of  such Indebtedness satisfying the requirements of ***clause (a)***  preceding), *so long as*(i) such Indebtedness was not incurred in  contemplation of such acquisition, merger, or consolidation, (ii) no  Event of Default or Default then exists or arises as a result thereof, and  (iii) no other Subsidiary (other than the existing obligors at the time such  Person or asset was acquired) shall have or incur any direct or indirect  liability for such Indebtedness; and
(d) other unsecured 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 is  created, incurred, or assumed, or arises after giving effect to such  incurrence of Indebtedness;
(e) obligations (contingent or otherwise) of any Subsidiary  existing or arising under any Swap Contract; *provided**that* (i)  such obligations are (or were) entered into by such Subsidiary for the purpose  of directly mitigating risks associated with liabilities, commitments,  investments, assets, or property held or reasonably anticipated by such  Subsidiary, or changes in the value of securities issued by such Subsidiary,  and not for purposes of speculation or taking a "*market view*,"  and (ii) such Swap Contract does not contain a provision designating the  "*First Method*" (as defined in the form of the Master  Agreement) or any other provision directly or indirectly exonerating the  non-defaulting party from its obligation to make payments on outstanding  transactions to the defaulting party after the occurrence of an "*Early  Termination Date*" (as defined in such Swap Contract); and
(f) Indebtedness in respect of capital leases, Synthetic  Lease Obligations, and purchase money obligations for fixed or capital assets,  *so long as* any Liens securing such Indebtedness satisfy the  requirements of ***Section 7.01(i).***
Notwithstanding anything in this ***Section  7.03*** to the contrary, the aggregate principal amount of all  Indebtedness of the Subsidiaries, without duplication, (a) may not exceed, on  any date of determination prior to the date of the Acquisition Financial  Statements, 25% of the book value of the consolidated assets of the Borrower  and the Subsidiaries, determined as of the date of, and with respect to, the  Audited Financial Statements, and (b) may not exceed, on any date of  determination on or after the date of the Acquisition Financial Statements,  20% of the book value of the consolidated assets of the Borrower and the  Subsidiaries, determined as of the date of, and with respect to, the  Acquisition Financial Statements.**                     7.04   ****Fundamental Changes.**
(a) The Borrower will not:

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

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

 

35

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

(b) Subject to ***subsection (a)(iii)*** above, the  following transactions are permitted at all times without restriction by this ***Section 7.04***:

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

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

(c) For purposes of ***subsection (a)(ii)***,  the book value of the consolidated assets of the Borrower and its Subsidiaries  will be determined as of the date of, and with respect to, the latest to be  delivered of (i) the Audited Financial Statements and (ii) the  Acquisition Financial Statements; *provided that,* if the Termination  Date is extended pursuant to ***Section 2.13***, such book value of  the consolidated assets of the Borrower and its Subsidiaries will be  determined as of the date of, and with respect to, the Current Financials most  recently delivered prior to the Extension Effective Date pursuant to ***Section  6.01(a)***, and the provisions of the preceding ***subsection (a)***,******will apply to transactions arising on or after the Extension Effective  Date.

 
**                     7.05   ****Change in Nature of Business.**
The Borrower shall not, nor shall it permit any Subsidiary  to, directly or indirectly, engage in any material line of business  substantially different from those lines of business conducted by the Borrower  and its Subsidiaries on the date hereof.
**                     7.06   ****Transactions with Affiliates.**
The Borrower shall not, nor shall it permit any Subsidiary  to, directly or indirectly, enter into any transaction or series of  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  in the 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  this Agreement) that:

(a) restricts or limits any Subsidiary from:

(i) the making of dividends or distributions (whether in  cash, securities, or other property) payable to the Borrower or any  Subsidiary; or

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

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(b) limits the ability of any Subsidiary to create, incur,  assume, or suffer to exist Liens on the property of any such Subsidiary or  requires the grant of a Lien to secure an obligation of such Person if a Lien  is granted to secure an obligation of another Person.**                     7.08   ****Use of Proceeds.**
The Borrower shall not permit any part of the proceeds of  any Borrowing to be used, directly or indirectly, in any manner that might  cause the Borrowing 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 of Total Debt to  Capitalization, at the end of each fiscal quarter of the Borrower, to be  greater than or equal to .65 to 1.00.

**ARTICLE VIII.****EVENTS OF DEFAULT AND REMEDIES****                     8.01    Events of Default.**Any of the following shall constitute an Event of    Default:

(a) Non-Payment. The Borrower fails to pay within    three Business Days after the same becomes due, (i) any amount of principal    of any Loan, or (ii) any interest on any Loan, any Facility Fee, or any    Utilization Fee, or (iii) any other fee or amount invoiced to the Borrower    and payable hereunder or under any other Loan Document; or

(b) Specific Covenants. (i) The Borrower fails to    perform or observe any term, covenant, or agreement contained in any of ***Sections    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, or    agreement contained in any of ***Sections 6.02(e), 6.05,***or ***6.10***    and such failure continues for five Business 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 Days after the    earlier of the date a Responsible Officer of the Borrower has knowledge of    such failure or written notice thereof to the Borrower from the    Administrative Agent or any Lender;******or

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

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

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(e) Cross-Default.

(i) With respect to any Indebtedness or Guaranty    Obligation (other than the Indebtedness hereunder and Indebtedness under    Swap Contracts), the Borrower or any Subsidiary:

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

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

(ii) (A) An "*Early Termination Date*"    occurs under any Swap Contract resulting from (i) any event of default under    such Swap Contract as to which the Borrower or any Subsidiary is the    Defaulting Party (as defined in such Swap Contract) or (ii) any Termination    Event (as defined under such Swap Contract) as to which the Borrower or any    Subsidiary is an Affected Party (as defined under such Swap Contract), and    (B) in either event, the Swap Termination Value owed by the Borrower or any    Subsidiary as a result thereof remains unpaid beyond the applicable 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) Insolvency Proceedings, Etc. The Borrower or    any of its Subsidiaries institutes or by any act or failure to act indicates    its consent to, approval of, or acquiescence in any proceeding under any    Debtor Relief Law, or makes an assignment for the benefit of creditors, or    applies for or consents to the appointment of any receiver, trustee,    custodian, conservator, liquidator, rehabilitator, or similar officer for it    or for all or any material part of its property, or any receiver, trustee,    custodian, conservator, liquidator, rehabilitator, or similar officer is    appointed without the application or consent of such Person and the    appointment continues undischarged or unstayed for 60 calendar days, or any    proceeding under any Debtor Relief Law relating to any such Person or to all    or any material part of its property is instituted without the consent of    such Person and continues undismissed or unstayed for 60 calendar days, or    an order for relief is entered in any such proceeding; or

 

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(g) Inability to Pay Debts; Attachment. (i) The    Borrower or any Subsidiary becomes unable or admits in writing its inability    or fails generally to pay its debts as they become due, or (ii) any writ or    warrant of attachment or execution or similar process is issued or levied    against 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    after its issue or levy; or

(h) Judgments. There is entered against the    Borrower or any Subsidiary (i) a final judgment or order for the payment of    money in an individual amount exceeding $250,000,000, or, when aggregated    with all other final 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 the insurer does not dispute coverage), or    (ii) any non-monetary final judgment that has, or would reasonably be    expected to have, a Material Adverse Effect and, in the case of either ***clause (i)***    or ***clause (ii)***, (A) enforcement proceedings are commenced    by any creditor upon such judgment or order, or (B) there is a period of 30    consecutive days during which a stay of enforcement of such judgment, by    reason of a pending appeal or otherwise, is not in effect; or

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

(j) Invalidity of Loan Documents. (i) This    Agreement, any Note, or the Administrative Fee Agreement at any time after    its execution and delivery and as a result of any act or omission of the    Borrower (other than with the agreement of all the Lenders (or the    Administrative Agent, in the case of the Administrative Fee Agreement) or    upon satisfaction in full of all the Obligations), ceases to be in full    force and effect and such failure continues for 30 days after written notice    thereof from Administrative Agent to the Borrower, or (ii) the Borrower or    any other Person contests in any manner the validity or enforceability of    this Agreement, any Note, or the Administrative Fee Agreement, or (iii) the    Borrower denies that it has any further liability or obligation under this    Agreement, any Note, or the Administrative Fee Agreement, or purports to    revoke, terminate, or rescind this Agreement, any Note, or the    Administrative Fee Agreement.

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

(a) declare the commitment of each Lender to make Loans    to be terminated, whereupon such commitments and obligation shall be    terminated;

(b)declare the unpaid principal    amount of all outstanding Loans, all interest accrued and unpaid thereon,    and all other amounts owing or payable hereunder or under any other Loan    Document to be immediately due and payable, without presentment, demand,    protest, or other notice of any kind, all of which are hereby expressly    waived by the Borrower; and
(c) exercise on behalf of itself and the Lenders all    rights and remedies available to it and the Lenders under the Loan Documents    or applicable law;

 

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*provided that, upon the occurrence of any event    specified in ***subsection (f)*** of ***Section 8.01***,    the obligation of each Lender to make Loans shall automatically terminate,    the unpaid principal amount of all outstanding Loans and all interest and    other amounts as aforesaid shall automatically become due and payable, in    each case without further act of the Administrative Agent or anyLender.**                     8.03   ****Application of Funds.**
After exercise of remedies provided for in ***Section  8.02*** (or after the Loans have automatically become immediately due and  payable), any amounts received on account of the Obligations shall be applied  by the Administrative Agent in the following order:
*First, to payment of that portion of the  Obligations constituting the ratable share of the fees, indemnities, expenses,  and other amounts (including all attorneys' fees and expenses and amounts  payable under ***Article III***) payable to each of the Administrative  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***), ratably  among them in proportion to the amounts described in this ***clause****Second* payable to them;
*Third, to payment of that portion of the  Obligations constituting accrued and unpaid interest on the Loans, ratably  among the Lenders in proportion to the respective amounts described in this ***clause****Third* payable to them;
*Fourth, to payment of that portion of the  Obligations constituting unpaid principal of the Loans, ratably among the  Lenders in proportion to the respective amounts described in this ***clause****Fourth* held by them;
*Fifth, to payment of any remaining Obligations,  ratably among the holders of such remaining Obligations in proportion to the  respective amounts described in this ***clause****Fifth*  held by them; and
*Last, the balance, if any, after all of the  Obligations have been indefeasibly paid in full, to the Borrower or as  otherwise required by Law.

**ARTICLE IX.****AGREEMENT AMONG LENDERS****                       9.01    Appointment and Authorization of Administrative      Agent.
Each Lender hereby irrevocably (subject to ***Section  9.09***) appoints, designates, and authorizes the Administrative Agent to  take such action on its behalf under the provisions of this Agreement and each  other Loan Document and to exercise such powers and perform such duties as are  expressly delegated to it by the terms of this Agreement or any other Loan  Document, together with such powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary contained elsewhere herein or in  any other Loan Document, the Administrative Agent shall not have any duties or  responsibilities, except those expressly set forth herein, nor shall the  Administrative Agent have or be deemed to have any fiduciary relationship with  any Lender or participant, and no implied covenants, functions,  responsibilities, duties, obligations, or liabilities shall be read into this  Agreement or any other Loan Document or otherwise exist against the  Administrative Agent. Without limiting the generality of the foregoing  sentence, the use of the term "*agent*" herein and in the other  Loan Documents with reference to 

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the Administrative Agent is not intended to connote any  fiduciary or other implied (or express) obligations arising under agency  doctrine of any applicable Law. Instead, such term is used merely as a matter  of market custom, and is intended to create or reflect only an administrative  relationship between independent contracting parties.        
**                     9.02   ****Delegation of Duties.**
The Administrative Agent may execute any of its duties  under this Agreement or any other Loan Document by or through agents,  employees, or attorneys-in-fact and shall be entitled to advice of counsel and  other consultants or experts concerning all matters pertaining to such duties.  The Administrative Agent shall not be responsible for the negligence or  misconduct of any agent or attorney-in-fact that it selects in the absence of  gross negligence or willful misconduct.
**                     9.03   ****Liability of Agent-Related Persons.**
No Agent-Related Person shall (a) be liable for any action  taken or omitted to be taken by any of them under or in connection with this  Agreement or any other Loan Document or the transactions contemplated hereby  (except for its own gross negligence or willful misconduct in connection with  its duties expressly set forth herein), or (b) be responsible in any manner to  any Lender or participant for any recital, statement, representation, or  warranty made by the Borrower or any officer thereof, contained herein or in  any other Loan Document, or in any certificate, report, statement, or other  document referred to or provided for in, or received by the Administrative  Agent under or in connection with, this Agreement or any other Loan Document,  or the validity, effectiveness, genuineness, enforceability, or sufficiency of  this Agreement or any other Loan Document, or for any failure of the Borrower  or any other party to any Loan Document to perform its obligations hereunder  or thereunder. No Agent-Related Person shall be under any obligation to any  Lender or participant to ascertain or to inquire as to the observance or  performance of any of the agreements contained in, or conditions of, 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) The Administrative Agent shall be entitled to rely, and  shall be fully protected in relying, upon any writing, communication,  signature, resolution, representation, notice, consent, certificate,  affidavit, letter, telegram, facsimile, telex or telephone message, statement,  electronic mail message, or other document or conversation believed by it to  be genuine and correct and to have been signed, sent, or made by the proper  Person or Persons, and upon advice and statements of legal counsel (including  counsel to the Borrower), independent accountants and other experts selected  by the Administrative Agent. The Administrative Agent shall be fully justified  in failing or refusing to take any action under any Loan Document unless it  shall first receive such advice or concurrence of the Required Lenders as it  deems appropriate and, if it so requests, it shall first be indemnified to its  satisfaction by the Lenders against any and all liability and expense which  may be incurred by it by reason of taking or continuing to take any such  action. The Administrative Agent shall in all cases be fully protected in  acting, or in refraining from acting, under this Agreement or any other Loan  Document in accordance with a request or consent of the Required Lenders (or  such greater number of Lenders as may be expressly required hereby in any  instance), if required hereunder, and such request and any action taken or  failure to act pursuant thereto shall be binding upon all the Lenders.

(b) For purposes of determining compliance with the  conditions specified in ***Section 4.01***, each Lender that has  signed this Agreement shall be deemed to have consented to, approved, or  accepted or to be satisfied with, each document or other matter as required  thereunder to be consented to or approved by or acceptable or satisfactory to  a Lender unless the Administrative Agent shall have received notice from such  Lender prior to the proposed Closing Date specifying its objection thereto.

 

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**                     9.05   ****Notice of Default.**
The Administrative Agent shall not be deemed to have  knowledge or notice of the occurrence of any Default or Event of Default,  except with respect to defaults in the payment of principal, interest, and  fees required to be paid to the Administrative Agent for the account of the  Lenders, unless the Administrative Agent shall have received written notice  from a Lender or the Borrower referring to this Agreement, describing such  Default or Event of Default and stating that such notice is a "*notice  of default*." The Administrative Agent will notify the Lenders of its  receipt of any such notice. The Administrative Agent shall take such action  with respect to such Default or Event of Default as may be directed by the  Required Lenders in accordance with ***Article VIII***; *provided  that*, unless and until the Administrative Agent has received any such  direction, the Administrative Agent may (but shall not be obligated to) take  such action, or refrain from taking such action, with respect to such Default  or Event of Default as it shall deem advisable or in the best interest of the  Lenders.
**                     9.06   ****Credit Decision; Disclosure of Information by    Administrative Agent and Syndication Agent.**
Each Lender acknowledges that no Agent-Related Person has  made any representation or warranty to it, and that no act by the  Administrative Agent or the Syndication Agent hereafter taken, including any  consent to and acceptance of any assignment or review of the affairs of the  Borrower or any Affiliate thereof, shall be deemed to constitute any  representation or warranty by any Agent-Related Person to any Lender as to any  matter, including whether Agent-Related Persons have disclosed material  information in their possession. Each Lender represents to the Administrative  Agent and the Syndication Agent that it has, independently and without  reliance upon any Agent-Related Person and based on such documents and  information as it has deemed appropriate, made its own appraisal of and  investigation into the business, prospects, operations, property, financial,  and other condition and creditworthiness of the Borrower and its respective  Subsidiaries, and all applicable bank or other regulatory Laws relating to the  transactions contemplated hereby, and made its own decision to enter into this  Agreement and to extend credit to the Borrower hereunder. Each Lender also  represents that it will, independently and without reliance upon any  Agent-Related Person and based on such documents and information as it shall  deem appropriate at the time, continue to make its own credit analysis,  appraisals, and decisions in taking 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 to the business, prospects, operations,  property, financial, and other condition and creditworthiness of the Borrower.  Except for notices, reports, and other documents expressly required to be  furnished to the Lenders by the Administrative Agent herein, neither the  Administrative Agent nor the Syndication Agent, as applicable, shall have any  duty or responsibility to provide any Lender with any credit or other  information concerning the business, prospects, operations, property,  financial, and other condition or creditworthiness of the Borrower or any of  its respective Affiliates which may come into the possession of any  Agent-Related Person.
**                     9.07   ****Indemnification of Agent-Related Persons.**
Whether or not the transactions contemplated hereby are  consummated, the Lenders shall indemnify upon demand each Agent-Related Person  (to the extent not reimbursed by or on behalf of the Borrower and without  limiting its obligation to do so), in accordance with their Pro Rata Shares,  and hold harmless each Agent-Related Person from and against any and all  Indemnified Liabilities incurred by it; *provided that* no Lender shall  be liable for the payment to any Agent-Related Person of any portion of such  Indemnified Liabilities to the extent determined in a final, nonappealable  judgment by a court of competent jurisdiction to have resulted from such  Agent-Related Person's own gross negligence or willful misconduct or from such  Agent-Related Person's breach of this Agreement; *provided that*no  action taken in accordance with the directions of the Required Lenders (or  such greater number of Lenders as may be expressly required hereby in any  instance) shall be deemed to constitute gross negligence or willful misconduct  for purposes of this ***Section 9.07***. Without limitation of  the foregoing, each Lender shall reimburse the Administrative Agent upon  demand for its Pro Rata Share of any costs or out-of-pocket expenses  (including attorneys' fees)

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 incurred by the Administrative Agent in connection  with the preparation, execution, delivery, administration, modification,  amendment, or enforcement (whether through negotiations, legal proceedings or  otherwise) of, or legal advice in respect of rights or responsibilities under,  this Agreement, any other Loan Document, or any document contemplated by or  referred to herein, to the extent that the Administrative Agent is not  reimbursed for such expenses by or on behalf of the Borrower. The undertaking  in this ***Section 9.07*** shall survive termination of the  Commitments, the payment of all Obligations hereunder, and the resignation or  replacement of the Administrative Agent or the Syndication Agent.
**                     9.08   ****Administrative Agent in its Individual Capacity.**
Bank of America and its Affiliates may make loans 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 its respective  Affiliates as though Bank of America were not the Administrative Agent  hereunder and without notice to or consent of the Lenders. The Lenders  acknowledge that, pursuant to such activities, Bank of America or its  Affiliates may receive information regarding the Borrower or its Affiliates  (including information that may be subject to confidentiality obligations in  favor of the Borrower or such Affiliate) and acknowledge that the  Administrative Agent shall be under no obligation to provide such information  to them. With respect to its Loans, Bank of America shall have the same rights  and powers under this Agreement as any other Lender and may exercise such  rights and powers as though it were not the Administrative Agent, and the  terms "*Lender*" and "*Lenders*" include Bank of  America in its individual capacity.
**                     9.09   ****Successor Administrative Agent.**
The Administrative Agent may resign as Administrative Agent  upon 30 days' notice to the Lenders. If the Administrative Agent resigns under  this Agreement, the Required Lenders shall appoint from among the Lenders a  successor administrative agent for the Lenders which successor administrative  agent shall be consented to by the Borrower at all times other than during the  existence of an Event of Default (which consent of the Borrower shall not be  unreasonably withheld or delayed). If no successor administrative agent is  appointed prior to the effective date of the resignation of the Administrative  Agent, the Administrative Agent may appoint, after consulting with the Lenders  and the Borrower, a successor administrative agent from among the Lenders.  Upon the acceptance of its appointment as successor administrative agent  hereunder, such Person acting as such successor administrative agent shall  succeed to all the rights, powers, and duties of the retiring Administrative  Agent and the term "*Administrative Agent*" shall mean such  successor administrative agent and the retiring Administrative Agent's  appointment, powers, and duties as Administrative Agent shall be terminated.  After any retiring Administrative Agent's resignation hereunder as  Administrative Agent, the provisions of this ***Article IX*** and ***Sections 10.04***  and ***10.05*** shall inure to its benefit as to any actions taken or  omitted to be taken by it while it was Administrative Agent under this  Agreement. If no successor administrative agent has accepted appointment as  Administrative Agent by the date which is 30 days following a retiring  Administrative Agent's notice of resignation, the retiring Administrative  Agent's resignation shall nevertheless thereupon become effective and the  Lenders shall perform all of the duties of the Administrative Agent hereunder  until such time, if any, as the Required Lenders appoint a successor agent as  provided for above.    
     **                  9.10   ****Administrative Agent May File Proofs of Claim.**
In case of the pendency of any receivership, insolvency,  liquidation, bankruptcy, reorganization, arrangement, adjustment, composition,  or other judicial proceeding relative to the Borrower, the Administrative  Agent (irrespective of whether the principal of any Loan shall then be due and  payable as herein expressed or by declaration or otherwise and irrespective of  whether the Administrative Agent shall have made any demand on the Borrower)  shall be entitled and empowered, by intervention in such proceeding or  otherwise

 

43

(a) to file and prove a claim for the whole amount of the  principal and interest owing and unpaid in respect of the Loans and all other  Obligations that are owing and unpaid and to file such other documents as may  be necessary or advisable in order to have the claims of the Lenders and the  Administrative Agent (including any claim for the reasonable compensation,  expenses, disbursements, and advances of the Lenders and the Administrative  Agent and their respective agents and counsel and all other amounts due the  Lenders and the Administrative Agent under ***Sections 2.08*** and ***10.04***)  allowed in such judicial proceeding; and

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

and any custodian, receiver, assignee, trustee, liquidator,  sequestrator, or other similar official in any such judicial proceeding is  hereby authorized by each Lender to make such payments to the Administrative  Agent and, in the event that the Administrative Agent shall consent to the  making of such payments directly to the Lenders, to pay to the Administrative  Agent any amount due for the reasonable compensation, expenses, disbursements,  and advances of the Administrative Agent and its agents and counsel, and any  other amounts due the Administrative Agent under ***Sections 2.08***  and ***10.04***.

Nothing contained herein shall be deemed to authorize the  Administrative Agent to authorize or consent to or accept or adopt, on behalf  of any Lender, any plan of reorganization, arrangement, adjustment, or  composition affecting the Obligations or the rights of any Lender or to  authorize the Administrative Agent to vote in respect of the claim of any  Lender in any such proceeding.
**                     9.11   ****Other Agents; Joint Book Runners, Joint Lead    Arrangers.**
None of the Lenders or other Persons identified on the  facing page or signature pages of this Agreement as a "*syndication  agent*," "*documentation agent*," "*joint book  runners,*" or "*joint**lead arrangers*" shall  have any obligation, liability, responsibility, or duty under this Agreement  other than, in case of such Lenders, those applicable to all Lenders as such.  Without limiting the foregoing, none of the Lenders or other Persons so  identified shall have or be deemed to have any fiduciary relationship with any  Lender. Each Lender acknowledges that it has not relied, and will not rely, on  any of the Lenders or other Persons so identified in deciding to enter into  this Agreement or in taking or not taking action hereunder.

ARTICLE X.MISCELLANEOUS**                     10.01    Amendments, Etc.
No amendment or waiver of any provision of this Agreement  or any other Loan Document, and no consent to any departure by the Borrower  therefrom, shall be 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 such waiver or consent shall be effective only in the specific  instance and for the specific purpose for which given; *provided that* no  such amendment, waiver, or consent shall, unless in writing and signed by each  of the Lenders directly affected thereby and by the Borrower, and acknowledged  by the Administrative Agent, do any of the following:

(a) extend or increase the Commitment of any Lender (or  reinstate any Commitment terminated pursuant to ***Section 8.02***),  other than an extension pursuant to ***Section 2.13***;

(b) postpone any date fixed by this Agreement or any other  Loan Document for any payment or mandatory prepayment of principal, interest,  fees, or other amounts due to the Lenders (or any of them) hereunder or under  any other Loan Document;

 

44

(c) reduce the principal of, or the rate of interest  specified herein, on any Loan, or (subject to ***clause (ii)*** of the  proviso below) any fees or other amounts payable hereunder or under any other  Loan Document; *provided**that* only the consent of the Required  Lenders shall be necessary to amend the definition of "*Default Rate*"  or to waive any obligation of the Borrower to pay interest at the Default  Rate;

(d) change any provision of this ***Section 10.01***  or the definition of "*Required Lenders*" or any other  provision hereof specifying the number or percentage of Lenders required to  amend, waive, or otherwise modify any rights hereunder or make any  determinations or grant any consents hereunder; or

(e) change ***Section 2.12*** or ***Section 8.03***  in a manner 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  Administrative Agent in addition to the Required Lenders or each affected  Lender, as the case may be, affect the rights or duties of the Administrative  Agent under this Agreement or any other Loan Document; and (ii) the  Administrative Fee Agreement may be amended, or rights or privileges  thereunder waived, in a writing executed only by the parties thereto.  Notwithstanding anything to the contrary herein, any Defaulting Lender shall  not have any right to approve or disapprove any amendment, waiver, or consent  hereunder, except that the Commitment of such Defaulting Lender may not be  increased or extended without the consent of such Defaulting 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 the applicable address, facsimile  number or (subject to ***subsection (c)*** below) electronic mail  address, and all notices and other communications expressly permitted  hereunder to be given by telephone shall be made to the applicable telephone  numbers, as follows:

(i) if to the Borrower or the Administrative Agent, to the  address, facsimile number, electronic mail address, or telephone number  specified for such Person on ***Schedule 10.02*** or to such other  address, facsimile number, electronic mail address, or telephone number as  shall be designated by such party in a notice to the other parties; and

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

All such notices and other communications shall be deemed  to be given or made upon the earlier to occur of (i) actual receipt by the  relevant party hereto and (ii) (A) if delivered by hand or by courier, when  signed for by or on behalf of the relevant party hereto; (B) if delivered by  mail, four Business Days after deposit in the mails, postage prepaid; (C) if  delivered by facsimile, when sent and receipt has been confirmed by telephone;  and (D) if delivered by electronic mail (which form of delivery is subject to  the provisions of ***subsection (c)*** below), when delivered; *provided**that* notices and other communications to the Administrative Agent  pursuant to ***Article II*** shall not be effective until actually  received by 

45

Administrative Agent. In no event shall a voicemail message  be effective as a notice, communication, or confirmation hereunder.

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

(c) Limited Use of Electronic Mail. Electronic mail  and Internet and intranet websites may be used only to distribute routine  communications (such as Financial Statements, information delivered pursuant  to ***Sections 6.02(c)***or***(d),*** and other  information), to distribute Loan Documents for review and execution by the  parties thereto, and to distribute copies of executed counterparts of Loan  Documents, and may not be used for any other purpose.

(d) Reliance by Administrative Agent and Lenders.  The Administrative Agent and each Lender shall be entitled 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 telephonic notices were not  followed by any other form of notice specified herein, or (ii) the terms  thereof, as understood by the recipient, varied from any confirmation thereof.  The Borrower shall indemnify each Agent-Related Person and each Lender from  all losses, costs, expenses, and liabilities resulting from the reliance by  such Person on each notice believed in good faith by such Agent-Related Person  or Lender to have been given by or on behalf of the Borrower. All telephonic  notices to and other communications with the Administrative Agent may be  recorded by the Administrative Agent, and each of the parties hereto hereby  consents to such recording.
**                     10.03   ****No Waiver; Cumulative Remedies.**
No failure by any Lender or the Administrative Agent to  exercise, and no delay by any such Person in exercising, any right, remedy,  power or privilege hereunder shall operate as a waiver thereof, nor shall any  single or partial exercise of any right, remedy, power, or privilege hereunder  preclude any other or further exercise thereof or the exercise of any other  right, remedy, power or privilege. The rights, remedies, powers, and  privileges herein 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 reimburse the  Administrative Agent for all reasonable costs and expenses incurred in  connection with the development, preparation, negotiation, and execution of  this Agreement and the other Loan Documents and any amendment, waiver,  consent, or other modification of the provisions hereof and thereof (whether  or not the transactions contemplated hereby or thereby are consummated), and  the consummation and administration of the transactions contemplated hereby  and thereby, including all reasonable attorneys' fees, and (b) to pay or  reimburse the Administrative Agent and each Lender for all reasonable costs  and expenses incurred in connection with the enforcement, attempted  enforcement, or preservation of any rights or remedies under this Agreement or  the other Loan Documents (including all such costs and expenses incurred  during any "*workout*" or restructuring in respect of the  Obligations and during any legal proceeding, including any proceeding under  any Debtor Relief Law), including all reasonable attorneys' fees. The  foregoing costs and expenses shall include all search, filing, recording,  title insurance, and appraisal charges and fees and taxes related thereto, and  other out-of-pocket expenses

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 incurred by the Administrative Agent and the cost of  independent public accountants and other outside experts retained by the  Administrative Agent, counsel to the Administrative Agent, or any Lender. All  amounts due under this ***Section 10.04*** shall be payable within 30  Business Days after demand therefor. The agreements in  this ***Section 10.04*** shall survive the termination of the  Total Commitment and repayment of all the other Obligations.**                     10.05   ****Indemnification by the Borrower.**
Whether or not the transactions contemplated hereby are  consummated, the Borrower shall indemnify and hold harmless each Agent-Related  Person, each Lender, and their respective Affiliates, directors, officers,  employees, counsel, agents, attorneys, and attorneys-in-fact (collectively the  "***Indemnitees***") from and 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 nature whatsoever  which may at any time be imposed on, incurred by or asserted against any such  Indemnitee in any way relating to or arising out of or in connection with (a)  the execution, delivery, enforcement, performance, or administration of any  Loan Document or any other agreement, letter, or instrument delivered in  connection with the transactions contemplated thereby or the consummation of  the transactions contemplated thereby, (b) any Commitment, Loan, or the use or  proposed use of the proceeds therefrom, or (c) any actual or alleged presence  or release of Hazardous Materials on or from any property currently or  formerly owned or operated by the Borrowers or any Subsidiary, or any  Environmental Liability related in any way to the Borrower or any Subsidiary,  or (d) any claim, litigation, investigation, or proceeding relating to any of  the foregoing, whether based on contract, tort, or any other theory (including  any investigation of, preparation for, or defense of any pending or threatened  claim, investigation, litigation, or proceeding) and regardless of whether any  Indemnitee is a party thereto (all the foregoing, collectively, the "***Indemnified  Liabilities***"), in all cases, whether or not caused by or arising,  in whole or in part, out of the negligence of the Indemnitee; *provided**that*  such indemnity shall not, as to any Indemnitee, be available to the extent  that such liabilities, obligations, losses, damages, penalties, claims,  demands, actions, judgments, suits, costs, expenses, or disbursements are  determined by a court of competent jurisdiction by final and nonappealable  judgment to have resulted from the gross negligence or willful misconduct of  such Indemnitee, or from such Indemnitee's breach of this Agreement. No  Indemnitee shall be liable for any damages arising from the use by others of  any information or other materials obtained through IntraLinks or other  similar information transmission systems in connection with this Agreement,  nor shall any Indemnitee have any liability for any indirect or consequential  damages relating to this Agreement or any other Loan Document or arising out  of its activities in connection herewith or therewith (whether before or after  the Closing Date). All amounts due under this ***Section 10.05***  shall be payable no later than ten Business Days after demand therefor. The  agreements in this ***Section 10.05*** shall survive the  resignation of the Administrative Agent, the replacement of any Lender, the  termination of the Total Commitment and the repayment, satisfaction or  discharge of all the other Obligations. An Indemnitee will promptly notify the  Borrower upon receipt of written notice of any claim, action, suit, or  proceeding made, commenced, or threatened that could give rise to an  Indemnified Liability; *provided that* any failure by such Indemnitee to  give such notice shall not relieve the Borrower from its obligations 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 the  Administrative Agent or any Lender, or the Administrative Agent or any Lender  exercises its right of set-off, and such payment or the proceeds of such  set-off or any part thereof is subsequently invalidated, declared to be  fraudulent or preferential, set aside or required (including pursuant to any  settlement entered into by the Administrative Agent or such Lender in its  discretion) to be repaid to a trustee, receiver or any other party, in  connection with any proceeding under any Debtor Relief Law or 

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otherwise, then (a) to the extent of such recovery, the  obligation or part thereof originally intended to be satisfied shall be  revived and continued in full force and effect as if such payment had not been  made or such set-off had not occurred, and (b) each Lender severally agrees to  pay to the Administrative Agent upon demand its applicable share of any amount  so recovered from or repaid by the Administrative Agent, plus interest thereon  from the date of such demand to the date such payment is made at a rate per  annum equal to the Federal Funds Rate from time to time in effect.
**                     10.07   ****Successors and Assigns.**
(a) The provisions of this Agreement shall be binding upon  and inure to the benefit of the parties hereto and their respective successors  and assigns permitted hereby, except that the Borrower may not assign or  otherwise transfer any of its rights or obligations hereunder without the  prior written consent of each Lender and no Lender may assign or otherwise  transfer any of its rights or obligations hereunder except (i) to an Eligible  Assignee in accordance with the provisions of ***subsection (b)*** of  this ***Section 10.07***, (ii) by way of participation in  accordance with the provisions of ***subsection (d)*** of this ***Section 10.07***,  or (iii) by way of pledge or assignment of a security interest subject to the  restrictions of ***subsection (f)*** of this ***Section 10.07***  (and any other attempted assignment or transfer by any party hereto shall be  null and void). Nothing in this Agreement, expressed or implied, shall be  construed to confer upon any Person (other than the parties hereto, their  respective successors and assigns permitted hereby, Participants to the extent  provided in ***subsection (d)*** of this ***Section 10.07***  and, to the extent expressly contemplated hereby, the Indemnitees) any legal  or equitable right, remedy, or claim under or by reason of this Agreement.

(b) Any Lender may at any time assign to one or more  Eligible Assignees all or a portion of its rights and obligations under this  Agreement (including all or a portion of its Commitment and its Loans); *provided  that* (i) except in the case of an assignment of the entire remaining  amount of the assigning Lender's Commitment and the Loans at the time owing to  it or in the case of an assignment to a Lender or a Lender Affiliate or an  Approved Fund (as defined in ***subsection (h)*****of this ***Section 10.07***)  with respect to a Lender, the aggregate amount of the Commitment (which for  this purpose includes any Loans outstanding thereunder) or principal  outstanding balance of the Loans of the assigning Lender subject to each such  assignment, determined as of the date the Assignment and Assumption with  respect to such assignment is delivered to the Administrative Agent or, if  "Trade Date" is specified in the Assignment and Assumption, as of  the Trade Date, shall not be less than $5,000,000, unless each of the  Administrative Agent and, so long as no Event of Default has occurred and is  continuing, the Borrower otherwise consents (each such consent not to be  unreasonably withheld or delayed), (ii) each partial assignment shall be made  as an assignment of a proportionate part of all the assigning Lender's rights  and obligations under this Agreement with respect to the Loans or the  Commitment assigned, and (iii) the parties to each assignment shall execute  and deliver to the Administrative Agent an Assignment and Assumption, together  with a processing and recordation fee of $3,500. Subject to acceptance and  recording thereof by the Administrative Agent pursuant 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 of the interest assigned by such  Assignment and Assumption, have the rights and obligations of a Lender under  this Agreement, and the assigning Lender thereunder shall, to the extent of  the interest assigned by such Assignment and Assumption, be released from its  obligations under this Agreement (and, in the case of an Assignment and  Assumption covering all of the assigning Lender's rights and obligations under  this Agreement, such Lender shall cease to be a party hereto but shall  continue to be entitled to the benefits of ***Sections 3.01, 3.04, 3.05,  10.04,*** and ***10.05***for claims arising 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 and the assignee Lender. Any assignment or transfer by a  Lender of rights or obligations under this 

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Agreement that does not comply with this ***subsection (b)***  shall be treated for purposes of this Agreement as a sale by such Lender of a  participation in such rights and obligations in accordance with, and subject  to, ***subsection (d)*** of this ***Section 10.07***.

(c) The Administrative Agent, acting solely for this  purpose as an agent of the Borrower, shall maintain at the Administrative  Agent's Office a copy of each Assignment and Assumption delivered to it and a  register for the recordation of the names and addresses of the Lenders, and  the Commitments of, and principal amounts of the Loans owing to, each Lender  pursuant to the terms hereof from time to time (the "***Register***").  The entries in the Register shall be conclusive, and the Borrower, the  Administrative Agent and the Lenders may treat each Person whose name is  recorded in the Register pursuant to the terms hereof as a Lender hereunder  for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by the Borrower and any Lender,  at any reasonable time and from time to time upon reasonable prior notice.  Administrative Agent shall provide copies of the Register to the Borrower upon  its reasonable request.

(d) Any Lender at any time may, without the consent of, or  notice to, the Borrower or the Administrative Agent, sell participations to  any Person (other than a natural person or the Borrower or any of the  Borrower's Affiliates or Subsidiaries) (each, a "***Participant***")  in all or a portion of such Lender's rights and/or obligations under this  Agreement (including all or a portion of its Commitment and/or the Loans owing  to it); *provided**that* (i) such Lender's obligations under  this Agreement shall remain unchanged, (ii) such Lender shall remain  solely responsible to the other parties hereto for the performance of such  obligations and (iii) the Borrower, the Administrative Agent, and the  other Lenders shall continue to deal solely and directly with such Lender in  connection with such Lender's rights and obligations under this Agreement. Any  agreement or instrument pursuant to which a Lender sells such a participation  shall provide that such Lender shall retain the sole right to enforce this  Agreement and to approve any amendment, modification, or waiver of any  provision of this Agreement; *provided that* such agreement or instrument  may provide that such Lender will not, without the consent of the Participant,  agree to any amendment, waiver, or other modification that would (i) postpone  any date upon which any payment of money is scheduled to be paid to such  Participant, or (ii) reduce the principal, interest, fees or other amounts  payable to such Participant. Subject to ***subsection (e)*** of this ***Section 10.07***,  the Borrower agrees that each Participant shall be entitled to the benefits of  ***Sections 3.01, 3.04***, and ***3.05*** to the same extent  as if it were a Lender and had acquired its interest by assignment pursuant to  ***subsection (b)*** of this ***Section 10.07***. To the  extent permitted by law, each Participant also shall be entitled to the  benefits of ***Section 10.09*** as though it were a Lender; *provided  that* (i) such Participant agrees to be subject to ***Section 2.12***  as though it were a Lender and (ii) the Borrower has given prior written  consent to the sale of the participation to such Participant.

(e) A Participant shall not be entitled to receive any  greater payment under ***Section 3.01*** or ***3.04*** than  the applicable Lender would have been entitled to receive with respect to the  participation sold to such Participant, unless the sale of the participation  to such Participant is made with the Borrower's prior written consent. A  Participant that would be a Foreign Lender if it were a Lender shall not be  entitled to the benefits of ***Section 3.01*** unless the  Borrower is notified of the participation sold to such Participant and such  Participant agrees, for the benefit of the Borrower, to comply with ***Section  10.15*** as though it were a Lender.

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

 

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(g) If the consent of the Borrower to an assignment or to  an Eligible Assignee is required hereunder (including a consent or approval to  an assignment which does not meet the minimum assignment threshold specified  in ***clause (i)*** of the proviso to the first sentence of ***Section  10.07(b)***), the Borrower shall be deemed to have given its consent or  approval five Business Days after the date the Assignment and Assumption has  been delivered to the Borrower by the assigning Lender (through the  Administrative Agent) unless such consent or approval is expressly refused by  the Borrower prior to such fifth Business Day.

(h) As used herein, the following terms have the following  meanings:

"***Eligible Assignee***" means (a) a  Lender; (b) a Lender Affiliate; (c) an Approved Fund; and (d) any other Person  (other than a natural Person) approved by the Administrative Agent and, unless  an Event of Default has occurred and is continuing, the Borrower (each such  approval not to be unreasonably withheld or delayed), *provided that*  notwithstanding the foregoing, "*Eligible Assignee*" shall not  include the Borrower or any of the Borrower's Affiliates or Subsidiaries.

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

"***Approved Fund***" means any Fund that  is administered or managed by (a) a Lender or (b) a Lender Affiliate.

"***Lender Affiliate***" means, with  respect to a Lender, another Person that directly, or indirectly through one  or more intermediaries, Controls or is Controlled by or is under common  Control with the specified Lender. "*Control*" means the  possession, directly or indirectly, of the power to direct or cause the  direction of the management or policies of a Person, whether through the  ability to exercise voting power, by contract or otherwise. "*Controlling*"  and "*Controlled*" have meanings correlative thereto.
**                     10.08   ****Confidentiality.**
Each of the Administrative Agent and the Lenders agrees to  maintain the confidentiality of the Information (as defined below), except  that Information may be disclosed (a) to its and its Affiliates'  directors, officers, employees, and agents, including accountants, legal  counsel, and other advisors who have a need to know such information in  connection with the transactions contemplated by this Agreement or the  provisions of other financial products or services to Borrower (and each  disclosing party agrees that the Persons to whom such disclosure is made will  be informed of the confidential nature of such Information and instructed to  keep such Information confidential), (b) to the extent requested by any  regulatory authority having jurisdiction over the disclosing party,  (c) to the extent required by applicable laws or regulations or by any  subpoena or similar legal process, (d) to any other party to this Agreement,  (e) in connection with the exercise of any remedies hereunder or any suit,  action or proceeding relating to this Agreement or the enforcement of rights  hereunder, (f) subject to an agreement containing provisions substantially the  same as those of this ***Section 10.08***, to (i) any Eligible  Assignee of or Participant in, or any prospective Eligible Assignee of or  Participant in, any of its rights or obligations under this Agreement or (ii)  any direct or indirect contractual counterparty or prospective counterparty  (or such contractual 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 any similar confidentiality  undertaking by which the disclosing party is bound, or (ii) becomes  available to the Administrative Agent or any Lender on a nonconfidential basis  from a source other than the Borrower, and not from a Person party to the Loan  Documents, or (i) to the 

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National Association of Insurance Commissioners or any  other similar organization. In addition, the Administrative Agent and the  Lenders may disclose the (i) existence of this Agreement, (ii) the initial  pricing under this Agreement, (iii) the Termination Date and the Maturity  Date, (iv) the initial principal amount of this Agreement, and (v) the  identities of the Administrative Agent, the Syndication Agent, the Arrangers,  and the documentation agents under this Agreement to market data collectors,  similar service providers to the lending industry, and service providers to  the Administrative Agent and the Lenders in connection with the administration  and management of this Agreement, the other Loan Documents, the Commitments,  and the Loans. For the purposes of this ***Section 10.08***,  "***Information***" means all information received from the  Borrower relating to the Borrower or its business, other than any such  information that is available to the Administrative Agent or any Lender on a  nonconfidential basis prior to disclosure by the Borrower. The Administrative  Agent, the Syndication Agent, and each Lender shall be considered to have  complied with its obligation to do so if such Person has exercised the same  degree of care to maintain the confidentiality of such Information as such  Person would accord to its own confidential information.    
**                     10.09   ****Set-off.**
In addition to any rights and remedies of the Lenders  provided by law, upon the occurrence and during the continuance of any Event  of Default, each Lender is authorized at any time and from time to time,  without prior notice to the Borrower, any such notice being waived by the  Borrower to the fullest extent permitted by law, to set off and apply any and  all deposits (general or special, time or demand, provisional or final) at any  time held by, and other indebtedness at any time owing by, such Lender to or  for the credit or the account of the Borrower against any and all Obligations  owing to such Lender, hereunder or under any Loan Document, now or hereafter  existing, irrespective of whether or not the Administrative Agent or such  Lender shall have made demand under this Agreement or any other Loan Document  and although such Obligations may be contingent or unmatured or denominated in  a currency different from that of the applicable deposit or indebtedness. Each  Lender agrees promptly to notify the Borrower and the Administrative Agent  after any such set-off and application made by such Lender; *provided that*  the failure to give such notice shall not affect the validity of such set-off  and application.
**                     10.10   ****Interest Rate Limitation.**
Notwithstanding anything to the contrary contained in any  Loan Document, the interest paid or agreed to be paid under the Loan Documents  shall not exceed the maximum rate of non-usurious interest permitted by  applicable Law (the "***Maximum Rate***"). If the  Administrative Agent or any Lender shall receive interest in an amount that  exceeds the Maximum Rate, the excess interest shall be applied to the  principal of the Loans or, if it exceeds such unpaid principal, refunded to  the Borrower. In determining whether the interest contracted for, charged, or  received by the Administrative Agent or a Lender exceeds the Maximum Rate,  such Person may, to the extent permitted by applicable Law, (a) characterize  any payment that is not principal as an expense, fee, or premium rather than  interest, (b) exclude voluntary prepayments and the effects thereof, and (c)  amortize, prorate, allocate, and spread in equal or unequal parts the total  amount of interest throughout the contemplated term of the Obligations  hereunder.
**                     10.11   ****Counterparts.**
This Agreement may be executed in one or more counterparts,  each of which shall be deemed an original, but all of which together shall  constitute one and the same instrument.
**                     10.12   ****Integration.**
This Agreement, together with the other Loan Documents,  comprises the complete and integrated agreement of the parties on the subject  matter hereof and thereof and supersedes all prior agreements, written or  oral, on such subject matter, including the Commitment Letter. In the event of  any conflict between the provisions of this Agreement and those of any other  Loan Document, the provisions of this Agreement shall control.

 

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**                     10.13   ****Survival of Representations and Warranties.**
All representations and warranties made hereunder and in  any other Loan Document or other document delivered pursuant hereto or thereto  or in connection herewith or therewith shall survive the execution and  delivery hereof and thereof.    
**                     10.14   ****Severability.**
If any provision of this Agreement or the other Loan  Documents is held to be illegal, invalid or unenforceable, (a) the legality,  validity, and enforceability of the remaining provisions of this Agreement and  the other Loan Documents shall not be affected or impaired thereby, and (b)  the parties shall endeavor in good faith negotiations to replace the illegal,  invalid, or unenforceable provisions with valid provisions the economic effect  of which comes as close as possible to that of the illegal, invalid or  unenforceable provisions. The invalidity of a provision in a particular  jurisdiction shall not invalidate or render unenforceable such provision in  any other jurisdiction.
**                     10.15   ****Foreign Lenders.**

(a)(i) Each Lender that is not a "*United States  person*" within the meaning of *Section 7701(2)(30)* of the Code  (a "***Foreign Lender***") shall deliver to the  Administrative Agent, with a copy to the Borrower, prior to receipt of any  payment subject to withholding under the Code (or upon accepting an assignment  of an interest herein), two duly signed completed copies of either IRS Form  W-8BEN or any successor thereto (relating to such Foreign Lender and entitling  it to an exemption from, or reduction of, withholding tax on all payments to  be made to such Foreign Lender by the Borrower pursuant to this Agreement) or  IRS Form W-8ECI or any successor thereto (relating to all payments to be made  to such Foreign Lender by the Borrower pursuant to this Agreement) or such  other evidence satisfactory to the Borrower and the Administrative Agent that  such Foreign Lender is entitled to an exemption from, or reduction of, U.S.  withholding tax including any exemption pursuant to *Section 881(c)* of  the Code. Thereafter and from time to time, each such Foreign Lender shall (A)  promptly submit to the Administrative Agent, with a copy to the Borrower, such  additional duly completed and signed copies of one of such forms (or such  successor forms as shall be adopted from time to time by the relevant United  States taxing authorities) as may then be available under then current United  States laws and regulations to avoid, or such evidence as is satisfactory to  the Borrower and the Administrative Agent of any available exemption from or  reduction of, United States withholding taxes in respect of all payments to be  made to such Foreign Lender by the Borrower pursuant to this Agreement, (B)  promptly notify the Administrative Agent, with a copy to the Borrower, of any  change in circumstances which would modify or render invalid any claimed  exemption or reduction, and (C) take such steps as shall not be materially  disadvantageous to it, in the reasonable judgment of such Lender, and as may  be reasonably necessary (including the re-designation of its Lending Office)  to avoid any requirement of applicable Laws that the Borrower make any  deduction or withholding for taxes from amounts payable to such Foreign  Lender.

(ii) Each Foreign Lender, to the extent it does not act or  ceases to act for its own account with respect to any portion of any sums paid  or payable to such Lender under any of the Loan Documents (for example, in the  case of a typical participation by such Lender), shall deliver to the  Administrative Agent on the date when such Foreign Lender ceases to act for  its own account with respect to any portion of any such sums paid or payable,  and at such other times as may be necessary in the determination of the  Administrative Agent (in the reasonable exercise of its discretion), (A) two  duly signed completed copies of the forms or statements required to be  provided by such Lender as set forth above, to establish the portion of any  such sums paid or payable with respect to which such Lender acts for its own  account that is not subject to U.S. withholding tax, and (B) two duly signed  completed copies of IRS Form W-8IMY (or any successor thereto), together with  any information such Lender chooses to transmit with 

52

 

such form, and any other certificate or statement of  exemption required under the Code, to establish that such Lender is not acting  for its own account with respect to a portion of any such sums payable to such  Lender.

(iii) The Borrower shall not be required to pay any  additional amount to any Foreign Lender under ***Section 3.01*** (A)  with respect to any Taxes required to be deducted or withheld on the basis of  the information, certificates, or statements of exemption such Lender  transmits with an IRS Form W-8IMY pursuant to this ***Section 10.15(a)***  or (B) if such Lender shall have failed to satisfy the foregoing provisions of  this ***Section 10.15(a)***; *provided**that,* if such  Lender shall have satisfied the requirement of this ***Section 10.15(a)***  on the date such Lender became a Lender or ceased to act for its own account  with respect to any payment under any of the Loan Documents, nothing in this ***Section  10.15(a)*** shall relieve the Borrower of its obligation to pay any  amounts pursuant to ***Section 3.01*** in the event that, as a result  of any change in any applicable law, treaty or governmental rule, regulation  or order, or any change in the interpretation, administration or application  thereof, such Lender is no longer properly entitled to deliver forms,  certificates, or other evidence at a subsequent date establishing the fact  that such Lender or other Person for the account of which such Lender receives  any sums payable under any of the Loan Documents is not subject to withholding  or is subject to withholding at a reduced rate.

(iv) The Administrative Agent may, without reduction,  withhold any Taxes required to be deducted and withheld from any payment under  any of the Loan Documents with respect to which the Borrower is not required  to pay additional amounts under this ***Section 10.15(a)***.

(b) Upon the request of the Administrative Agent, each  Lender that is a "*United States person*" within the meaning of  *Section 7701(a)(30)* of the Code shall deliver to the Administrative  Agent two duly signed completed copies of IRS Form W-9. If such Lender fails  to deliver such forms, then the Administrative Agent may withhold from any  interest payment to such Lender an amount equivalent to the applicable back-up  withholding tax imposed by the Code, without reduction.

(c) If any Governmental Authority asserts that the  Administrative Agent did not properly withhold or backup withhold, as the case  may be, any tax or other amount from payments made to or for the account of  any Lender, such Lender shall indemnify the Administrative Agent therefor,  including all penalties and interest, any taxes imposed by any jurisdiction on  the amounts payable to the Administrative Agent under this ***Section 10.15***,  and costs and expenses (including attorneys' fees and expenses) of the  Administrative Agent. The obligation of the Lenders under this ***Section  10.15*** shall survive the termination of the Total Commitment, repayment  of all the Obligations hereunder, and the resignation of the Administrative  Agent.
**                     10.16   ****Removal and Replacement of Lenders.**
(a) Under any circumstances set forth herein providing that  the Borrower shall have the right to remove or replace, as the case may be, a  Lender as a party to this Agreement, the Borrower may, upon notice to such  Lender and the Administrative Agent, (i) remove such Lender by terminating  such Lender's Commitment and repay in full all principal, interest, fees, and  other amounts owing or accrued to such Lender through the date of termination  (including any amounts payable pursuant to ***Section 3.05****)*,  or (ii) replace such Lender by causing such Lender to assign all its  Commitment and Loans (without payment of any assignment fee) pursuant to ***Section 10.07(b)***  to one or more other Lenders or Eligible Assignees procured by the Borrower; *provided**that* if the Borrower elects to exercise such right with respect to any  Lender pursuant to ***Section 3.06(b),*** it shall be obligated to  remove or replace, as the case may be, all Lenders that have made similar  requests for compensation pursuant to ***Section 3.01*** or ***3.04***.

53

 The Borrower shall pay in full all principal,  interest, fees and other amounts owing to such Lender through the date of  termination or assignment (including any amounts payable pursuant to ***Section 3.05).***Any Lender being replaced shall execute and deliver an Assignment and  Assumption with respect to such Lender's Commitment and outstanding Loans.

(b) This ***Section 10.16*** shall supersede  any provision in ***Section 10.01*** to the contrary.
**                     10.17   ****Governing Law.**
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN  ACCORDANCE WITH, the LAW OF THE STATE OF NEW YORK applicable to agreements  made and to be performed entirely within such State; *PROVIDED**THAT*  THE ADMINISTRATIVE Agent AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER  FEDERAL LAW.

(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS  AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE  OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR  THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS  AGREEMENT, THE BORROWER, THE ADMINISTRATIVE Agent AND EACH LENDER CONSENTS,  FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION  OF THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE Agent, AND EACH LENDER  IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF  VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR  HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH  JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED  THERETO. THE BORROWER, THE ADMINISTRATIVE Agent, AND EACH LENDER WAIVES  PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT, OR OTHER PROCESS, WHICH MAY BE  MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
**                     10.18   ****Waiver of Right to Trial by Jury.**
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY  RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING  UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL  TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN  DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW  EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR  OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,  DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A  JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR  A COPY OF THIS ***SECTION 10.18*** WITH ANY COURT AS WRITTEN EVIDENCE  OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL  BY JURY.
**                     10.19   ****TIME IS OF THE ESSENCE.**
TIME IS OF THE ESSENCE OF THE LOAN DOCUMENTS.

 

54

** 10.20    ENTIRE AGREEMENT.**

THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL      AGREEMENT AMOUNG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF      PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE      PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
***[Remainder of Page Intentionally Left Blank

Signature Pages Follow]

 ***
55

    Signature Page  to that certain 364-Day Revolving Credit Agreement dated as of July 31,  2002, among ALLTEL Corporation, as the Borrower, Bank of America, N.A., as the  Administrative Agent, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner  & Smith Incorporated, as the Syndication Agent, and the Lenders 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 ExecutiveOfficer and President

 

 

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

*Administrative Agent* and as a *Lender*
 

By:    */s/ Todd Shipley*

       Todd Shipley

       Managing Director

 

**MERRILL LYNCH& CO., MERRILL**

**LYNCH, PIERCE,FENNER & SMITH**

***INCORPORATED***,**as the**Syndication Agent

By:    */s/ Carol J.E. Feeley*

       Carol J.E. Feeley

       Director

 

 

 
**MERRILL LYNCH Capital 

 Corporation, as a *Lender*

 

By:    */s/ Carol J.E. Feeley*

       Carol J.E. Feeley

       Vice President

 

**BAYERISCHE HYPO-UND**

**VEREINSBANK AG, NEW YORK**

**BRANCH**, as a *Lender*

  

By:    */s/ Eric N. Pelletier*

       Eric N. Pelletier

       Director

 

By:    */s/ Hetal Selarka*

       Hetal Selarka

       Associate Director

 
**SUNTRUST BANK, as a *Lender*
By:    */s/ Thomas C. King, Jr.*

       Thomas C. King, Jr.

       Vice President

 
**BANK ONE, NA, as a *Lender*
By:    */s/ Kelly T. Cotton*

       Kelly T. Cotton 

       Managing Director

 

 

 

 Signature Page  to that certain 364-Day Revolving Credit Agreement dated as of July 31,  2002, among ALLTEL Corporation, as the Borrower, Bank of America, N.A., as the  Administrative Agent, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner  & Smith Incorporated, as the Syndication Agent, and the Lenders named  therein.

EXECUTED to be effective as of the Closing Date.
**AIB INTERNATIONAL FINANCE, as a 

*Lender*

 

By:    */s/ Grace Gilligan*

       Grace Gilligan

       Manager

 

By:    */s/ Peter Nugent*

       Peter Nugent

       Director

 

 
**CITIBANK, N.A., as a *Lender*
By:    */s/ Elizabeth H. Minnella*

       Elizabeth H. Minnella

       Director

 

 **WACHOVIA BANK, NATIONAL 

 ASSOCIATION, as a *Lender*

 

By:   */s/ Franklin M. Wessinger*

       Franklin M. Wessinger

       Managing Director

 
**REGIONS BANK, as a *Lender*

By:    */s/ Tammy M. Foshess*

       Tammy M. Foshess

       Assistant Vice President

 
**KEYBANK NATIONAL ASSOCIATION, 

 as a *Lender*

 

By:    */s/ Thomas J. Purcell*

       Thomas J. Purcell

       Senior Vice President

 
 

 

 
** **
 

 

 

 

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