exv10w1



 





Exhibit 10.1




[Execution Version]




Published CUSIP

Number: 12507NAAO




CREDIT AGREEMENT




Dated as of December 11, 2007




among




CAL DIVE INTERNATIONAL, INC. and CDI VESSEL HOLDINGS LLC,




as Borrowers,




BANK OF AMERICA, N.A.,




as Administrative Agent, Swing Line Lender

and

L/C Issuer,




DNB NOR BANK ASA, THE BANK OF NOVA SCOTIA, and

WACHOVIA BANK, NATIONAL ASSOCIATION,




as Co-Documentation Agents,




The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC




as




Lead Arranger and Book Manager




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	 	 
	 
	 	 	 	 
	1.01 Defined Terms
	 	 	1	 
	 
	 	 	 	 
	1.02 Other Interpretive Provisions
	 	 	26	 
	 
	 	 	 	 
	1.03 Accounting Terms
	 	 	27	 
	 
	 	 	 	 
	1.04 Rounding
	 	 	28	 
	 
	 	 	 	 
	1.05 Times of Day
	 	 	28	 
	 
	 	 	 	 
	1.06 Letter of Credit Amounts
	 	 	28	 
	 
	 	 	 	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	 	 
	 
	 	 	 	 
	2.01 Loans
	 	 	28	 
	 
	 	 	 	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	29	 
	 
	 	 	 	 
	2.03 Letters of Credit
	 	 	30	 
	 
	 	 	 	 
	2.04 Swing Line Loans
	 	 	39	 
	 
	 	 	 	 
	2.05 Optional Prepayments
	 	 	42	 
	 
	 	 	 	 
	2.06 Mandatory Prepayments
	 	 	43	 
	 
	 	 	 	 
	2.07 Termination or Reduction of Commitments
	 	 	46	 
	 
	 	 	 	 
	2.08 Repayment of Loans
	 	 	46	 
	 
	 	 	 	 
	2.09 Interest
	 	 	47	 
	 
	 	 	 	 
	2.10 Fees
	 	 	47	 
	 
	 	 	 	 
	2.11 Computation of Interest and Fees
	 	 	48	 
	 
	 	 	 	 
	2.12 Evidence of Debt
	 	 	49	 
	 
	 	 	 	 
	2.13 Payments Generally; Administrative Agent’s Clawback
	 	 	49	 
	 
	 	 	 	 
	2.14 Sharing of Payments by Lenders
	 	 	51	 
	 
	 	 	 	 
	2.15 Increase of Commitments
	 	 	52	 
	 
	 	 	 	 
	2.16 Multiple Borrower Provisions
	 	 	54	 
	 
	 	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	 	 
	 
	 	 	 	 
	3.01 Taxes
	 	 	54	 
	 
	 	 	 	 
	3.02 Illegality
	 	 	56	 
	 
	 	 	 	 
	3.03 Inability to Determine Rates
	 	 	56	 
	 
	 	 	 	 
	3.04 Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	57	 
	 
	 	 	 	 
	3.05 Compensation for Losses
	 	 	58	 
	 
	 	 	 	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	59	 






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	 	 	Page	 
	3.07 Survival
	 	 	59	 
	 
	 	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	 	 
	 
	 	 	 	 
	4.01 Conditions of Initial Credit Extension
	 	 	60	 
	 
	 	 	 	 
	4.02 Conditions to all Credit Extensions
	 	 	65	 
	 
	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	 
	 	 	 	 
	5.01 Existence, Qualification and Power
	 	 	65	 
	 
	 	 	 	 
	5.02 Authorization; No Contravention
	 	 	66	 
	 
	 	 	 	 
	5.03 Governmental Authorization; Other Consents
	 	 	66	 
	 
	 	 	 	 
	5.04 Binding Effect
	 	 	66	 
	 
	 	 	 	 
	5.05 Financial Statements; No Material Adverse Effect; No Internal Control Event
	 	 	67	 
	 
	 	 	 	 
	5.06 Litigation
	 	 	68	 
	 
	 	 	 	 
	5.07 No Default
	 	 	68	 
	 
	 	 	 	 
	5.08 Ownership of Property; Liens
	 	 	68	 
	 
	 	 	 	 
	5.09 Environmental Compliance
	 	 	68	 
	 
	 	 	 	 
	5.10 Insurance
	 	 	68	 
	 
	 	 	 	 
	5.11 Taxes
	 	 	69	 
	 
	 	 	 	 
	5.12 ERISA Compliance
	 	 	69	 
	 
	 	 	 	 
	5.13 Subsidiaries; Equity Interests
	 	 	70	 
	 
	 	 	 	 
	5.14 Margin Regulations; Investment Company Act
	 	 	70	 
	 
	 	 	 	 
	5.15 Disclosure
	 	 	70	 
	 
	 	 	 	 
	5.16 Compliance with Laws
	 	 	71	 
	 
	 	 	 	 
	5.17 Taxpayer Identification Number
	 	 	71	 
	 
	 	 	 	 
	5.18 Intellectual Property; Licenses, Etc
	 	 	71	 
	 
	 	 	 	 
	5.19 Intentionally Left Blank
	 	 	71	 
	 
	 	 	 	 
	5.20 Solvency
	 	 	71	 
	 
	 	 	 	 
	5.21 Off-Balance Sheet Liabilities
	 	 	71	 
	 
	 	 	 	 
	5.22 Casualty, Etc
	 	 	71	 
	 
	 	 	 	 
	ARTICLE VI AFFIRMATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 
	6.01 Financial Statements
	 	 	72	 
	 
	 	 	 	 
	6.02 Certificates; Other Information
	 	 	73	 






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	 	 	Page	 
	6.03 Notices
	 	 	74	 
	 
	 	 	 	 
	6.04 Payment of Obligations
	 	 	75	 
	 
	 	 	 	 
	6.05 Preservation of Existence, Etc
	 	 	75	 
	 
	 	 	 	 
	6.06 Maintenance of Properties
	 	 	75	 
	 
	 	 	 	 
	6.07 Maintenance of Insurance
	 	 	76	 
	 
	 	 	 	 
	6.08 Compliance with Laws
	 	 	76	 
	 
	 	 	 	 
	6.09 Books and Records
	 	 	76	 
	 
	 	 	 	 
	6.10 Inspection Rights
	 	 	76	 
	 
	 	 	 	 
	6.11 Use of Proceeds
	 	 	76	 
	 
	 	 	 	 
	6.12 Material Contracts
	 	 	77	 
	 
	 	 	 	 
	6.13 Collateral; etc
	 	 	77	 
	 
	 	 	 	 
	6.14 Governmental Authorizations
	 	 	78	 
	 
	 	 	 	 
	6.15 Compliance with Environmental Laws
	 	 	79	 
	 
	 	 	 	 
	6.16 Further Assurances
	 	 	79	 
	 
	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 
	7.01 Liens
	 	 	79	 
	 
	 	 	 	 
	7.02 Investments
	 	 	81	 
	 
	 	 	 	 
	7.03 Indebtedness
	 	 	83	 
	 
	 	 	 	 
	7.04 Fundamental Changes
	 	 	85	 
	 
	 	 	 	 
	7.05 Dispositions
	 	 	86	 
	 
	 	 	 	 
	7.06 Restricted Payments
	 	 	87	 
	 
	 	 	 	 
	7.07 Change in Nature of Business
	 	 	88	 
	 
	 	 	 	 
	7.08 Transactions with Affiliates
	 	 	88	 
	 
	 	 	 	 
	7.09 Burdensome Agreements
	 	 	88	 
	 
	 	 	 	 
	7.10 Use of Proceeds
	 	 	89	 
	 
	 	 	 	 
	7.11 Financial Covenants
	 	 	89	 
	 
	 	 	 	 
	7.12 Capital Expenditures
	 	 	89	 
	 
	 	 	 	 
	7.13 Amendment of Organizational Documents
	 	 	89	 
	 
	 	 	 	 
	7.14 Accounting Changes
	 	 	90	 
	 
	 	 	 	 
	7.15 Prepayments, Etc
	 	 	90	 
	 
	 	 	 	 
	7.16 Partnerships, Etc
	 	 	90	 






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	 	 	Page	 
	7.17 Off-Balance Sheet Liabilities
	 	 	90	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
	 	 	 	 
	 
	 	 	 	 
	8.01 Events of Default
	 	 	90	 
	 
	 	 	 	 
	8.02 Remedies Upon Event of Default
	 	 	92	 
	 
	 	 	 	 
	8.03 Application of Funds
	 	 	93	 
	 
	 	 	 	 
	ARTICLE IX ADMINISTRATIVE AGENT
	 	 	 	 
	 
	 	 	 	 
	9.01 Appointment and Authority
	 	 	94	 
	 
	 	 	 	 
	9.02 Rights as a Lender
	 	 	94	 
	 
	 	 	 	 
	9.03 Exculpatory Provisions
	 	 	95	 
	 
	 	 	 	 
	9.04 Reliance by Administrative Agent
	 	 	95	 
	 
	 	 	 	 
	9.05 Delegation of Duties
	 	 	96	 
	 
	 	 	 	 
	9.06 Resignation of Administrative Agent
	 	 	96	 
	 
	 	 	 	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	97	 
	 
	 	 	 	 
	9.08 No Other Duties, Etc
	 	 	97	 
	 
	 	 	 	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	97	 
	 
	 	 	 	 
	9.10 Collateral and Guaranty Matters
	 	 	98	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	10.01 Amendments, Etc
	 	 	99	 
	 
	 	 	 	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	101	 
	 
	 	 	 	 
	10.03 No Waiver; Cumulative Remedies
	 	 	103	 
	 
	 	 	 	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	103	 
	 
	 	 	 	 
	10.05 Payments Set Aside
	 	 	105	 
	 
	 	 	 	 
	10.06 Successors and Assigns
	 	 	105	 
	 
	 	 	 	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	111	 
	 
	 	 	 	 
	10.08 Right of Setoff
	 	 	112	 
	 
	 	 	 	 
	10.09 Interest Rate Limitation
	 	 	112	 
	 
	 	 	 	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	112	 
	 
	 	 	 	 
	10.11 Survival of Representations and Warranties
	 	 	113	 
	 
	 	 	 	 
	10.12 Severability
	 	 	113	 
	 
	 	 	 	 
	10.13 Replacement of Lenders
	 	 	113	 
	 
	 	 	 	 
	10.14 Governing Law; Jurisdiction; Etc
	 	 	114	 






-iv- 









 





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	 	 	Page	 
	10.15 Waiver of Jury Trial
	 	 	115	 
	 
	 	 	 	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	115	 
	 
	 	 	 	 
	10.17 Collateral and Guaranty Matters
	 	 	116	 
	 
	 	 	 	 
	10.18 USA PATRIOT Act Notice
	 	 	116	 
	 
	 	 	 	 
	10.19 ENTIRE AGREEMENT
	 	 	117	 






-v- 









 





TABLE OF CONTENTS

(continued)




	 
	 

	SCHEDULES

	 

	1.01 Existing Letters of Credit

	2.01 Commitments and Applicable Percentages

	5.11 Tax Sharing Agreements

	5.13 Subsidiaries and Other Equity Investments

	7.01 Existing Liens

	7.02 Existing Investments

	7.03 Existing Indebtedness

	7.08 Existing Agreements

	10.02 Administrative Agent’s Office; Certain Addresses for Notices

	 

	EXHIBITS

	 

	Form of

	A    Loan Notice

	B    Swing Line Loan Notice

	C-1 Revolving Credit Note

	C-2 Term Note

	D    Compliance Certificate

	E     Assignment and Assumption







-vi- 











 





CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of December 11, 2007, among CDI
VESSEL HOLDINGS LLC, a Delaware limited liability company (“CDI Vessel”), CAL DIVE
INTERNATIONAL, INC., a Delaware corporation (the “Parent”, and together with CDI Vessel,
the “Borrowers”, and each, a “Borrower”), each lender from time to time party
hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF
AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.



     The Borrowers have requested that the Lenders provide a term loan facility and a revolving
credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.



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



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




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



     “Acquisition” means the acquisition, directly or indirectly, by any Person of (a) a
majority of the Equity Interests of another Person, (b) all or substantially all of the assets of
another Person or (c) all or substantially all of a line of business or division of another Person,
in each case (i) whether or not involving a merger or a consolidation with such other Person and
(ii) whether in one transaction or a series of related transactions.



     “Acquisition Consideration” means the consideration paid or incurred by the Parent or
any of its Subsidiaries for an Acquisition, including the sum of (without duplication) (a) the fair
market value of any cash, assets, Equity Interests or services given, plus (b) the amount of any
Indebtedness assumed, incurred or guaranteed (to the extent not otherwise included) plus (c) the
amount of transaction related contractual payments such as amounts payable under noncompete,
consulting, and similar agreements, in each case, paid or incurred in connection with such
Acquisition by the Parent or any of its Subsidiaries.



     “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 Borrowers and the Lenders.



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



 









 





     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



     “Aggregate Commitments” means the Commitments of all the Lenders.



     “Agreement” means this Credit Agreement.



     “Applicable Margin” means, from time to time, the following percentages per annum,
based, in the case of Revolving Credit Loans, Letter of Credit Fees and Commitment Fees, upon the
Consolidated Leverage Ratio as set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Margin
	 	 	 	 	 	 	 	 	 	Eurodollar Rate	 	 	 	 	 	Base Rate
	 	 	 	 	 	 	 	 	 	Loans	 	 	 	 	 	Loans
	Pricing	 	 	Consolidated	 	 	Commitment	 	 	(Revolving	 	 	 	 	 	(Revolving
	Level	 	 	Leverage Ratio	 	 	Fee	 	 	Credit Loans)+	 	 	Letters of Credit	 	 	Credit Loans)+
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1
	 	 	Less than 0.75x	 	 	0.375%	 	 	1.75%	 	 	1.75%	 	 	0.75%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2
	 	 	Greater than or	 	 	0.375%	 	 	2.00%	 	 	2.00%	 	 	1.00%
	 
	 	 	equal to 0.75x but	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	less than 1.50x	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3
	 	 	Greater than or	 	 	0.50%	 	 	2.25%	 	 	2.25%	 	 	1.25%
	 
	 	 	equal to 1.50x but	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	less than 2.50x	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4
	 	 	Greater than or	 	 	0.50%	 	 	2.50%	 	 	2.50%	 	 	1.50%
	 
	 	 	equal to 2.50x	 	 	 	 	 	 	 	 	 	 	 	 







	 	 	 	 
	Applicable Margin
	Eurodollar Rate – Term Loans	 	 	Base Rate – Term Loans
	2.25%
	 	 	1.25%
	 	 	 	 




From the Closing Date through the delivery of the Compliance Certificate pursuant to
Section 6.02(a) with respect to the financial statements delivered pursuant to
Section 6.01(b) for the fiscal quarter ending March 31, 2008, the Applicable Margin for
Revolving Credit Loans,




-2-









 







Letter of Credit Fees and Commitment Fees shall be determined based upon (y) the Consolidated
Leverage Ratio specified in the most recent Compliance Certificate delivered hereunder or (z) if no
Compliance Certificate has yet been delivered hereunder, or if the foregoing would result in a
Pricing Level lower (e.g., Pricing Level 1 or 2) than Pricing Level 3, Pricing Level 3.
Thereafter, any increase or decrease in the Applicable Margin for Revolving Credit Loans and Letter
of Credit Fees resulting from a change in the Consolidated Leverage Ratio shall become effective as
of the first Business Day immediately following the date a Compliance Certificate indicating such
change is delivered pursuant to Section 6.02(a); provided, however, that if
a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing
Level 4 shall apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered until such Compliance Certificate is delivered to
the Administrative Agent.




     “Applicable Percentage” means (a) in respect of the Term Facility, with respect to any
Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term
Facility represented by (i) on or prior to the Closing Date, such Term Lender’s Term Commitment at
such time and (ii) thereafter, the principal amount of such Term Lender’s Term Loans at such time
and (b) in respect of the Revolving Credit Facility, the Applicable Revolving Credit Percentage.
The initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite
the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable.



     “Applicable Revolving Credit Percentage” means, in respect of the Revolving Credit
Facility, with respect to any Revolving Credit Lender at any time, the percentage (carried out to
the ninth decimal place) of the Revolving Credit Facility represented by such Revolving Credit
Lender’s Revolving Credit Commitment at such time. If the commitment of each Revolving Credit
Lender to make Revolving Credit Loans and the obligation of the L/C Issuers to make L/C Credit
Extensions have been terminated pursuant to Section 8.02, or if the Revolving Credit
Commitments have expired, then the Applicable Percentage of each Revolving Credit Lender in respect
of the Revolving Credit Facility shall be determined based on the Applicable Percentage of such
Revolving Credit Lender in respect of the Revolving Credit Facility most recently in effect, giving
effect to any subsequent assignments.



     “Appropriate Lender” means, at any time, (a) with respect to the Term Facility or the
Revolving Credit Facility, a Lender that has a Commitment with respect to such Facility or holds a
Term Loan or a Revolving Credit Loan, respectively, at such time, (b) with respect to the Letter of
Credit Sublimit, (i) the L/C Issuers and (ii) if any Letters of Credit have been issued pursuant to
Section 2.03(a), the Revolving Credit Lenders, and (c) with respect to the Swing Line
Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to
Section 2.04(a), the Revolving Credit Lenders.



     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



     “Arranger” means Banc of America Securities LLC, in its capacity as lead arranger and
book manager.



-3-









 





     “Asset Disposition” means any Disposition of property or series of related
Dispositions of property other than pursuant to Sections 7.05(a)–(d), (f)-(i),
(j)(i), (l), (m) (except to the extent of any cash or Cash Equivalent
portion of consideration received), (n) and (o).



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b), and accepted by the Administrative Agent, in substantially the form of
Exhibit E or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, 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.



     “Availability” means, as of any date of determination, the remainder of (a) the
Revolving Credit Facility on such date minus (b) the aggregate Outstanding Amount of all Revolving
Credit Loans, Swing Line Loans and L/C Obligations on such date.



     “Availability Period” means, in respect of the Revolving Credit Facility, the period
from and including the Closing Date to the earliest of (a) the Revolving Credit Maturity Date,
(b) the date of termination of the Revolving Credit Commitments pursuant to Section 2.07,
and (c) the date of termination of the commitment of each Revolving Credit Lender to make Revolving
Credit Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to
Section 8.02.



     “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 Loan that bears interest based on the Base Rate.



     “Borrower” and “Borrowers” each has the meaning specified in the introductory
paragraph hereto.



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means a Revolving Credit Borrowing or a Term Borrowing, as the context may
require.



-4-









 





     “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, the state
where the Administrative Agent’s Office is located 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.



     “Capital Expenditures” means any expenditure by the Parent or any Subsidiary for an
asset which will be used in a year or years subsequent to the year in which the expenditure is made
and which asset is properly classifiable in relevant financial statements of such Person as
property, equipment or improvements, fixed assets, or a similar type of capital asset in accordance
with GAAP, including Maintenance Capital Expenditures (but excluding any such asset acquired,
constructed, improved, enlarged, developed, re-constructed or repaired with proceeds from a
Recovery Event or Asset Disposition in accordance with Section 2.06(b), to the extent of
such proceeds).



     “Cash Collateralize” has the meaning specified in Section 2.03(g).



     “Cash Equivalents” means (a) Dollars; (b) obligations issued or directly and fully
guaranteed or insured by the United States government or any agency or instrumentality thereof or
any state or municipalities having maturities of not more than one year after the date of
acquisition or up to $5,000,000 with maturities up to five (5) years after the date of the
acquisition; (c) certificates of deposit and LIBOR time deposits with maturities of one year or
less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year from
the date of acquisition and overnight bank deposits, in each case with any Lender or any Affiliate
of a Lender, or if other than a Lender or an Affiliate of a Lender, any domestic commercial bank or
U.S. branch of a foreign commercial bank having capital and surplus in excess of $500 million;
(d) repurchase obligations with a term of not more than 30 days for underlying securities of the
types described in clauses (b) and (c) above entered into with any Person meeting the
qualifications specified in said clause (c); (e) commercial paper having the highest rating
obtainable from Moody’s or S&P and in each case maturing within 270 days after the date of
acquisition or a fund which purchases such commercial paper; and (f) mutual funds that purchase the
types of investments referred to in (a) through (e) above.



     “Cash Management Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements.



     “Cash Management Bank” means any Person that, at the time it enters into a Cash
Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such
Cash Management Agreement.



     “CDI Vessel” has the meaning specified in the introductory paragraph hereto.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof



-5-









 







by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means 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 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, whether such right is exercisable immediately or only after the passage of
time)(such right, an “option right”)), directly or indirectly, of 30% or more of the equity
securities of the Parent entitled to vote for members of the board of directors or
equivalent governing body of the Parent 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 the Parent cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period or were appointed to that board substantially contemporaneously with the
consummation of the Horizon Acquisition, (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 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 (excluding, in the case of both clause (ii) and clause
(iii), any individual whose initial nomination for, or assumption of office as, a member of
that board or equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more directors by
any person or group other than a solicitation for the election of one or more directors by
or on behalf of the board of directors); or




     (c) the Parent ceases to own, directly or indirectly, 100% of the Equity Interests of
CDI Vessel.



     “Closing Date” means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01.



     “Code” means the Internal Revenue Code of 1986.



     “Collateral” has the meaning specified in the Security Documents.



     “Commitment” means a Revolving Credit Commitment and/or Term Commitment, as
applicable.



-6-









 





     “Compliance Certificate” means a certificate substantially in the form of
Exhibit D.



     “Consolidated EBITDA” means, for any period, for the Parent and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the
following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income
taxes (and similar taxes to the extent based on income or profits) payable by the Parent and its
Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) extraordinary or
non-recurring charges or losses (including without limitation the cumulative effect of changes in
GAAP and impairment charges related to long-lived assets) of the Parent and its Subsidiaries which
do not represent a cash item in such period or any future period, and (v) non-capitalized
transaction costs for the Transaction and minus (b)  to the extent included in calculating
such Consolidated Net Income, all extraordinary or non-recurring non-cash items increasing
Consolidated Net Income for such period; provided, however, that for purposes of
calculating the foregoing, the net income for such period of any Person that is not a Subsidiary of
the Parent, including any such Person that is accounted for by the equity method of accounting,
shall be included in Consolidated Net Income only to the extent of the amount of dividends or
distributions or other payments paid in cash (or to the extent converted into cash during the
applicable period) to the Parent or a Subsidiary thereof in respect of such period; and
provided, further, that for purposes of calculating the foregoing, the net income
for such period of any Person that is not a Wholly Owned Subsidiary of the Parent (and that is not
subject to the preceding proviso) shall be included in Consolidated Net Income, and the items
listed in clauses (a) and (b) shall be added or subtracted, as applicable, to Consolidated Net
Income only in an amount equal to a percentage of such Consolidated Net Income or item equal to the
percentage of the outstanding Equity Interests of such Person owned (directly or indirectly) by the
Parent.



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Parent and its Subsidiaries on a consolidated basis, without duplication, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term, for borrowed money
(including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan
agreements or other similar instruments, (b) the outstanding principal amount of all purchase money
Indebtedness, (c) all direct reimbursement obligations owing under letters of credit (including
standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments, (d) all outstanding obligations in respect of the deferred purchase price of property
or services (other than trade accounts payable in the ordinary course of business), (e) outstanding
Attributable Indebtedness in respect of capital leases, (f) without duplication, all Guarantees
(but only to the extent required to be recorded as a liability on the consolidated financial
statements of the Parent pursuant to GAAP) with respect to outstanding Indebtedness of the types
specified in clauses (a) through (e) above of Persons other than the Parent or any Subsidiary, and
(g)  all outstanding Indebtedness of the types referred to in clauses (a) through (f) above of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which the Parent or a Subsidiary is a general partner or joint venturer,
except to the extent such Indebtedness is expressly made non-recourse to the Parent or such
Subsidiary.



     “Consolidated Interest Charges” means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, the sum of (a)  all interest, premium payments, debt
discount, fees,



-7-









 







charges and related expenses of the Parent and its Subsidiaries in connection with borrowed
money (including capitalized interest) or in connection with the deferred purchase price of assets,
in each case to the extent treated as interest in accordance with GAAP, and (b)  the portion of
rent expense of the Parent and its Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP.



     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such
date to (b) Consolidated Interest Charges for such period.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of
(a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of
the four fiscal quarters ending on such date. For purposes of calculating the Consolidated
Leverage Ratio as of any date, Consolidated EBITDA shall be calculated on a pro forma basis (as
certified by the Parent to the Administrative Agent and as reasonably approved by the
Administrative Agent) assuming that (without duplication) all Acquisitions and other asset
acquisitions, mergers and consolidations made (including the Horizon Acquisition) and (without
duplication) all Material Dispositions (as hereinafter defined) completed, and any Indebtedness
incurred or repaid in connection therewith, during the four consecutive fiscal quarters then most
recently ended have been made or incurred or repaid on the first day of such period (but without
any adjustment for projected cost savings or other synergies). As used above, “Material
Disposition” means any Disposition or other asset disposition (or series of related
dispositions) of assets, in each case, which would constitute an Asset Disposition and which
generated, on an aggregate basis, $25,000,000 or more of Consolidated EBITDA during the four fiscal
quarters ending on such date.



     “Consolidated Net Income” means, for any period, for the Parent and its Subsidiaries
on a consolidated basis, the net income (or loss) of the Parent and its Subsidiaries for that
period.



     “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.



     “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.



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, 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 or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



-8-









 





     “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 (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Margin,
if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest
rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Loan
plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the
Applicable Margin plus 2% per annum.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Loans, participations in L/C Obligations or participations in Swing Line Loans required to be
funded by it hereunder within one Business Day of the date required to be funded by it hereunder
unless such failure has been cured, (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 unless such failure has
been cured, or (c) has been deemed insolvent or become the subject of a bankruptcy, receivership,
insolvency proceeding or similar proceedings.



     “Disposition” or “Dispose” means the sale, transfer, license, lease (as a
lessor), farm-out or other disposition (including any sale and leaseback transaction) of any
property by any Person, including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims associated therewith.



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



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 10.06(b)(iii)).



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of a
Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure
to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into



-9-









 







the environment or (e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the foregoing.



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



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests other than a net profits based bonus program in)
such Person, all of the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in) such Person, all
of the securities convertible into or exchangeable for shares of capital stock of (or other
ownership or profit interests in) such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other interests), and all of the other
ownership or profit interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or
other interests are outstanding on any date of determination.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with a 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 a 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 a Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is insolvent (within the meaning of
Section 4245 of ERISA) or in reorganization (within the meaning of Section 4241 of ERISA); (d) the
filing of a notice of intent to terminate a Pension Plan in a distress termination under Section
4041(a) of ERISA or the treatment of a Plan amendment as a distress termination of a Pension Plan
under Section 4041(c) of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or a Multiemployer Plan; or (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.



     “Eurodollar Rate” means, for any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing quotations of BBA LIBOR
as designated by the Administrative Agent from time to time) on the display designated as Reuters
Screen LIBOR01 Page (or such other page as may replace such page on such service for the purpose of
displaying the rates at which Dollar deposits are offered by leading banks in the London interbank
eurodollar market) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period.



-10-









 




If such rate is not available at such time for any reason, then the “Eurodollar Rate” for such
Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate
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 commencement of such
Interest Period.




     “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Foreign Subsidiary” means any Foreign Subsidiary that is a “controlled
foreign corporation” under Section 957 of the Code.



     “Excluded Property” has the meaning specified in the Security Agreement.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of any
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which a Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrowers under
Section 10.13), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office)
or is attributable to such Foreign Lender’s failure or inability (other than as a result of a
Change in Law) to comply with Section 3.01(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office
(or assignment), to receive additional amounts from any Borrower with respect to such withholding
tax pursuant to Section 3.01(a).



     “Existing Credit Agreement” means that certain Credit Agreement dated as of November
20, 2006 by and among CDI Vessel, as borrower, the Parent, Bank of America, as Administrative
Agent, Swing Line Lender and L/C Issuer, and other parties.



     “Existing Letter of Credit” means any letter of credit issued under the Existing
Credit Agreement and outstanding on the Closing Date, as set forth on Schedule 1.01.



     “Facility” means the Revolving Credit Facility or the Term Facility, as the context
may require.



     “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



-11-









 







Reserve Bank of New York on the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such 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 upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined
by the Administrative Agent.



     “Fee Letter” means the letter agreement, dated December 7, 2007, among the Borrowers,
the Administrative Agent and the Arranger.



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



     “Foreign Pledge Agreements” means the Singapore Pledge Agreement and any other
agreement pledging Equity Interests of a Foreign Subsidiary pursuant to Section 6.13.



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



     “FRB” means the Board of Governors of the Federal Reserve System of the United States.



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



     “GAAP” means 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 United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Granting Lender” has the meaning specified in Section 10.06(h).



     “Guarantee” 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 payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect,




-12-












 




(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 or performance 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 or performance 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 (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.




     “Guarantors” means, collectively, the Parent, CDI Vessel, and the Subsidiary
Guarantors.



     “Guaranty” means (a) the Guaranty, dated as of even date herewith, made by CDI Vessel
in favor of the Administrative Agent and the Lenders, (b) the Guaranty, dated as of even date
herewith, made by the Parent in favor of the Administrative Agent and the Lenders, and (c) the
Subsidiary Guaranty.



     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



     “Hedge Bank” means any Person that, at the time it enters into a Secured Hedge
Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Secured
Hedge Agreement.



     “Horizon” means Horizon Offshore, Inc., a Delaware corporation.



     “Horizon Acquisition” means the acquisition by the Parent of Horizon, through the
merger of Horizon with and into Cal Dive Acquisition, LLC, a Wholly-Owned Subsidiary of the Parent.



     “Horizon Audited Financial Statements” means the audited consolidated balance sheet of
Horizon and its Subsidiaries for the fiscal year ended December 31, 2006, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of Horizon and its Subsidiaries, including the notes thereto.



     “Horizon Credit Agreements” means, collectively, (i) the Loan Agreement dated as of
March 9, 2006 by and among The CIT Group/Equipment Financing Inc., as agent, the lenders



-13-









 




party thereto, and Horizon Vessels, Inc.; (ii) the Loan Agreement dated as of June 29, 2001
between General Electric Capital Corporation and Horizon Vessels, Inc.; (iii) the Loan Agreement
dated as of June 30, 2003 between General Electric Credit Corporation of Tennessee
(successor-in-interest to Boeing Capital Corporation) and Horizon Vessels International, Ltd., as
amended; (iv) the Term Loan, Guaranty and Security Agreement dated as of February 17, 2006 between
General Electric Capital Corporation, Horizon Vessels, Inc., as borrower, and Horizon Offshore,
Inc., as guarantor; (v) the Loan Agreement dated as of June 29, 2001, as amended and restated as of
March 11, 2004, by and among General Electric Capital Corporation (successor-in-interest to
Wachovia Bank, National Association and SouthTrust Bank), Horizon Vessels, Inc., Horizon Offshore,
Inc., and Horizon Offshore Contractors, Inc., as amended; and (vi) the Revolving Credit and
Security Agreement dated as of April 28, 2006 by and among PNC Bank, National Association, as a
lender and as agent for the lenders, the lenders party thereto, Horizon Offshore, Inc., Horizon
Offshore Contractors, Inc., HOC Offshore, S. de R.L. de C.V., Horizon Marine Contractors (Malaysia)
Sdn Bhd, PT Horizon Offshore Indonesia, Horizon Marine Construction (Mauritius) Ltd., and Horizon
Marine Construction Ltd., as amended.




     “Horizon Merger Agreement” means the Agreement and Plan of Merger dated as of June 11,
2007 among the Parent, Horizon and Cal Dive Acquisition, LLC.



     “Immaterial Foreign Subsidiary” means any Foreign Subsidiary that (a) had assets
having an aggregate book value, as of the end of the fiscal year most recently ended, not exceeding
5% of the consolidated total assets of the Parent and its Subsidiaries and (b) had Consolidated
EBITDA not exceeding 5% of the Consolidated EBITDA of the Parent for such fiscal year. A Foreign
Subsidiary shall automatically cease to be an Immaterial Foreign Subsidiary if at the end of any
fiscal year such Subsidiary would not meet the requirements set forth in the foregoing clauses (a)
and (b).



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




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




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




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




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than current trade accounts payable in the ordinary course of business);




     (e) obligations (excluding prepaid interest thereon) of others of the type referred to
in clauses (a) through (d) and (f) through (h) of this definition secured by a Lien on
property owned or being purchased by such Person (including obligations arising under
conditional sales or other title retention agreements), whether or not such



-14-









 






obligations shall have been assumed by, or is limited in recourse to, the Person
granting such Lien;




     (f) capital leases of such Person;




     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other Person,
valued, in the case of a redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends;




     (h) all Guarantees 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, except to the
extent such Indebtedness is expressly made non-recourse to the Parent or such Subsidiary. The
amount of any net obligation under any Swap Contract of any Person on any date shall be deemed to
be the Swap Termination Value thereof as of such date. The amount of any capital lease as of any
date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such
date. The amount of any Indebtedness under clause (e) above shall be the lesser of (i) such
outstanding principal amount and (ii) the then fair market value of such property.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



     “Initial Financial Statements” means the consolidated balance sheet of the Parent and
its Subsidiaries for the fiscal year ended December 31, 2006, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the
Parent and its Subsidiaries, including the notes thereto.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Revolving Credit Maturity Date or
the Term Loan Maturity Date, as applicable; provided, however, 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; and (b) as
to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June,
September and December and the Revolving Credit Maturity Date or the Term Loan Maturity Date, as
applicable.



     “Interest Period” means, as to each 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 (or, in the case of the initial
Interest Period for the Term Loans hereunder, ending December 31, 2007), as selected by the
applicable Borrower in its Loan Notice; provided that:



-15-









 






     (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;




     (iii) no Interest Period applicable to a Revolving Credit Loan shall extend beyond the
Revolving Credit Maturity Date; and




     (iv) no Interest Period applicable to a Term Loan shall extend beyond the Term Loan
Maturity Date.



     “Internal Control Event” means a material weakness in, or fraud that involves
management or other employees who have a significant role in, either Borrower’s internal controls
over financial reporting, in each case as described in the Securities Laws.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of Indebtedness of, or purchase or other acquisition of any other Indebtedness or equity
participation or interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of
such other Person, or (c) the purchase or other acquisition (in one transaction or a series of
related transactions) of assets of another Person that constitute a business unit. For purposes of
covenant compliance, the amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such Investment.



     “IP Rights” has the meaning specified in Section 5.18.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by an L/C Issuer and
either Borrower (or any Subsidiary) or in favor of such L/C Issuer and relating to any such Letter
of Credit.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, 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, licenses, authorizations and permits of, and
agreements



-16-









 




with, any Governmental Authority (other than any such agreements that are entered into in
respect of a commercial transaction).




     “L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s
funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving
Credit Percentage.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit
Borrowing.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “L/C Issuer” means each of Bank of America in its capacity as issuer of Letters of
Credit hereunder and any other Revolving Credit Lender or Affiliate thereof selected by the Parent
that agrees to become an L/C Issuer hereunder, or any successor issuer or issuers of Letters of
Credit hereunder; provided that at no time shall there be more than two L/C Issuers
hereunder.



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrowers and the Administrative Agent.



     “Letter of Credit” means any letter of credit issued hereunder and shall include the
Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby
letter of credit.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer.



     “Letter of Credit Expiration Date” means the day that is seven days prior to the
Revolving Credit Maturity Date (or, if such day is not a Business Day, the next preceding Business
Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.03(i).



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     “Letter of Credit Sublimit” means an amount equal to the Revolving Credit Facility.
The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, production payment, or preference, priority or
other security interest or preferential arrangement in the nature of a security interest of any
kind or nature whatsoever (including any conditional sale or other title retention agreement, any
easement, right of way or other encumbrance on title to real property, and any financing lease
having substantially the same economic effect as any of the foregoing).



     “Loan” means an extension of credit by a Lender to a Borrower under Article II
in the form of a Revolving Credit Loan, a Term Loan or a Swing Line Loan.



     “Loan Documents” means this Agreement, each Note, each Issuer Document, the Fee
Letter, the Guaranties, the Security Documents, each Secured Hedge Agreement, and each Secured Cash
Management Agreement; provided that for purposes of the definition of “Material Adverse
Effect” and Articles IV through X (other than Section 8.03,
Section 10.04, and Section 10.16), “Loan Documents” shall not include
Secured Hedge Agreements or Secured Cash Management Agreements.



     “Loan Notice” means a notice of (a) a Revolving Credit Borrowing, (b) a Term
Borrowing, (c) a conversion of Loans from one Type to the other, or (d) a continuation of
Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit A.



     “Loan Parties” means, collectively, each Borrower and each Guarantor.



     “Maintenance Capital Expenditures” means expenditures made and liabilities incurred in
each case, which are properly capitalized for the normal maintenance (including, without
limitation, dry docking and machinery overhauls), but not Acquisition, of any property owned or
leased by the Parent or its Subsidiaries, together with the related equipment.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of the Parent and its Subsidiaries taken as a
whole; (b) a material impairment of the ability of any Loan Party to perform any payment
obligations under and pursuant to the terms of, or to perform any of its other material obligations
under and pursuant to the terms of, any Loan Document to which it is a party; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party
of any Loan Document to which it is a party.



     “Material Contract” means any contract or other arrangement to which the Parent or any
of its Subsidiaries is a party (other than the Loan Documents) for which breach, nonperformance,
cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



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     “Mortgages” means, collectively, each of the mortgages or deeds of trust executed by
either Borrower or any of their Subsidiaries in favor of the Administrative Agent for the benefit
of the Secured Parties, in form and substance reasonably acceptable to the Administrative Agent.



     “Multiemployer Plan” means a Plan covered by Title IV of ERISA which is a
multiemployer plan as defined in Section 3(37) of ERISA or Section 4001(a)(3) of ERISA, to which
the Parent or any ERISA Affiliate makes or is obligated to make contributions, or with respect to
which the Parent or any ERISA Affiliates may have any liability, contingent or otherwise.



     “Net Cash Proceeds” means, (A) in connection with any Asset Disposition or Recovery
Event, the excess, if any, of (i) the sum of cash and, when received, cash received in respect of
any non-cash Cash Equivalents received in connection therewith (including any cash or Cash
Equivalents received by way of deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, but only as and when so received) minus (ii) the sum of (w) the amount of
Indebtedness that is secured by the applicable asset and that is required to be repaid in
connection with such transaction (other than Indebtedness under the Loan Documents), (x) the
reasonable and customary out-of-pocket expenses incurred by the Parent or the applicable Subsidiary
in connection therewith, (y) income taxes reasonably estimated to be payable within two years
following the date of the relevant transaction or event as a result of any gain recognized in
connection therewith; provided that, if the amount of any estimated taxes pursuant to
subclause (y) exceeds the amount of taxes actually required to be paid in cash in respect of such
Disposition or Recovery Event, then such excess shall then constitute Net Cash Proceeds, and (z)
the amount of reserves established by the Parent or any of its Subsidiaries in good faith and
pursuant to commercially reasonable practices for adjustment in respect of the sale price of such
asset or assets in accordance with GAAP; provided that if the amount of such reserves
exceeds the amounts for which it was reserved, then such excess shall then constitute Net Cash
Proceeds, and (B) in connection the incurrence or issuance of any Indebtedness by the Parent or any
of its Subsidiaries, the excess of (i) the sum of the cash and, when received, cash received in
respect of any non-cash Cash Equivalents received in connection with such transaction minus (ii)
the underwriting discounts and commissions, and other reasonable and customary out-of-pocket
expenses, incurred by the Parent or such Subsidiary in connection therewith.



     “Note” means a Revolving Credit Note or Term Note, as the context may require.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any 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.



     “Off-Balance Sheet Liabilities” means, with respect to any Person as of any date of
determination thereof, without duplication and to the extent not included as a liability on the
consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP:



-19-









 




(a) with respect to any asset securitization transaction (including any accounts receivable
purchase facility) (i) the unrecovered investment of purchasers or transferees of assets so
transferred and (ii) any other payment, recourse, repurchase, hold harmless, indemnity or similar
obligation of such Person or any of its Subsidiaries in respect of assets transferred or payments
made in respect thereof, other than limited recourse provisions that are customary for transactions
of such type and that neither (x) have the effect of limiting the loss or credit risk of such
purchasers or transferees with respect to payment or performance by the obligors of the assets so
transferred nor (y) impair the characterization of the transaction as a true sale under applicable
Laws (including Debtor Relief Laws); (b) the monetary obligations under any financing lease or
so-called “synthetic,” tax retention or off-balance sheet lease transaction which, upon the
application of any Debtor Relief Law to such Person or any of its Subsidiaries, would be
characterized as indebtedness; (c) the monetary obligations under any sale and leaseback
transaction which does not create a liability on the consolidated balance sheet of such Person and
its Subsidiaries; or (d) any other monetary obligation arising with respect to any other
transaction which (i) is characterized as indebtedness for tax purposes but not for accounting
purposes in accordance with GAAP or (ii) is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the consolidated balance sheet of such
Person and its Subsidiaries (for purposes of this clause (d), any transaction structured to provide
tax deductibility as interest expense of any dividend, coupon or other periodic payment will be
deemed to be the functional equivalent of a borrowing).




     “Organizational 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 or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.



     “Outstanding Amount” means (a) with respect to Term Loans, Revolving Credit Loans and
Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving
effect to any borrowings and prepayments or repayments of Term Loans, Revolving Credit Loans and
Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C
Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any
L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the
L/C Obligations as of such date, including as a result of any reimbursements by any Borrower of
Unreimbursed Amounts.



     “Parent” has the meaning specified in the introductory paragraph hereto.



-20-









 





     “Participant” has the meaning specified in Section 10.06(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “PCAOB” means the Public Company Accounting Oversight Board.



     “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 any Borrower or any ERISA Affiliate or to which any Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



     “Permitted Liens” means Liens of the type described in Section 7.01.



     “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) which is sponsored, maintained or contributed to by any Borrower or an ERISA Affiliate or
with respect to which any Borrower or an ERISA Affiliate may have any liability, contingent or
otherwise.



     “Platform” has the meaning specified in Section 6.02.



     “Recovery Event” means any settlement of or payment in respect of any property or
casualty insurance claim (excluding any claim in respect of business interruption) or any
condemnation, appropriation, seizure or similar proceeding or act relating to any asset of a
Borrower or any of its Subsidiaries.



     “Register” has the meaning specified in Section 10.06(c).



     “Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Parent as prescribed by the Securities Laws.



     “Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.



     “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.



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Term Loans or Revolving Loans, a Loan Notice, (b) with respect to an L/C Credit
Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line
Loan Notice.



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     “Required Lenders” means, as of any date of determination, Lenders holding more than
50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Lender’s risk
participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held”
by such Lender for purposes of this definition) and (b) aggregate unused Commitments;
provided that the unused Commitment of, and the portion of the Total Outstandings held or
deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.



     “Required Revolving Credit Lenders” means, as of any date of determination, Revolving
Credit Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings
(with the aggregate amount of each Revolving Credit Lender’s risk participation and funded
participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Credit
Lender for purposes of this definition) and (b) aggregate unused Revolving Credit Commitments;
provided that the unused Revolving Credit Commitment of, and the portion of the Total
Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Revolving Credit Lenders.



     “Required Term Lenders” means, as of any date of determination, Lenders holding more
than 50% of the Term Facility on such date; provided that the portion of the Term Facility
held by any Defaulting Lender shall be excluded for purposes of making a determination of Required
Term Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, Vice President – Finance or Vice President – Corporate Controller of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
equivalent action on the part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interest in the Parent or any Subsidiary,
or any payment (whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such capital stock or other Equity Interest, or on account of any return of
capital to the Parent’s stockholders, partners or members (or the equivalent Person thereof).



     “Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving
Credit Loans of the same Type to the same Borrower and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Revolving Credit Lenders pursuant to
Section 2.01(a).



     “Revolving Credit Commitment” means, as to each Revolving Credit Lender, its
obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.01(a)
and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Revolving Credit Lender’s name on
Schedule 2.01 under the caption “Revolving Credit Commitment” or opposite such caption in
the



-22-









 




Assignment and Assumption pursuant to which such Revolving Credit Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in accordance with this
Agreement, including pursuant to Section 2.15.




     “Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving
Credit Lenders’ Revolving Credit Commitments at such time. The initial amount of the Revolving
Credit Facility is $300,000,000.



     “Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit
Commitment at such time.



     “Revolving Credit Loan” has the meaning specified in Section 2.01(a).



     “Revolving Credit Maturity Date” means December 11, 2012.



     “Revolving Credit Note” means a promissory note made by a Borrower in favor of a
Revolving Credit Lender evidencing Revolving Credit Loans made by such Revolving Credit Lender,
substantially in the form of Exhibit C-1.



     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.



     “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the PCAOB.



     “Secured Cash Management Agreement” means any Cash Management Agreement that is
entered into by and between a Borrower and any Cash Management Bank.



     “Secured Hedge Agreement” means any Swap Contract that is entered into by and between
any Loan Party and any Hedge Bank.



     “Secured Parties” has the meaning specified in the Security Documents.



     “Security Agreement” means the Security Agreement, dated as of even date herewith,
among the Borrowers, the other Loan Parties signatories thereto, and the Administrative Agent.



     “Security Documents” means the Security Agreement, the Vessel Mortgages, the
Mortgages, the Foreign Pledge Agreements, and each of the other agreements, instruments or
documents that creates or purports to create a Lien in favor of the Administrative Agent for the
benefit of the Secured Parties.



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     “Singapore Pledge Agreement” means the Deed of Share Charge dated as of even date
herewith with respect to 66% of the outstanding Equity Interests in Cal Dive International PTE
Limited made by CDI Janus Holdings, LLC in favor of the Administrative Agent for the benefit of the
Secured Parties.



     “Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the value of the property of such Person, at a fair valuation,
is greater than the total amount of liabilities, including contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as they become absolute
and are scheduled to mature, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they
are scheduled to mature, (d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person’s property would constitute an
unreasonably small capital, and (e) such Person is able to pay its debts and liabilities,
contingent obligations and other commitments as they mature in the ordinary course of business.
The amount of contingent liabilities at any time shall be computed as the amount that, in the light
of all the facts and circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability subject to limitation provisions in the
instrument creating or governing such contingent liabilities.



     “SPC” has the meaning specified in Section 10.06(h).



     “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, other than solely as a result of a contract under which
such Person or one or more Persons that otherwise would constitute a Subsidiary of such Person
provides management, operation or similar services but does not control the policies of such Person
(including the appointment of such management), 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 Parent.



     “Subsidiary Guarantors” means, collectively, all Subsidiaries of the Parent party to
the Subsidiary Guaranty as of the date hereof, and all Subsidiaries of the Parent which become
parties to the Subsidiary Guaranty under Section 6.13.



     “Subsidiary Guaranty” means the Guaranty, dated as of even date herewith, made by the
Subsidiary Guarantors in favor of the Administrative Agent and the Lenders.



     “Swap Contract” means (a) any and all interest 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



-24-









 




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 of a
Person, after taking into account the effect of any legally enforceable netting agreement relating
to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed
out and termination value(s) determined in accordance therewith, such termination value(s), and
(b) for any date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).



     “Swing Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.04.



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to
Section 2.04.



     “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.04(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of
Exhibit B.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $20,000,000 and
(b) the aggregate amount of the Revolving Credit Commitments. The Swing Line Sublimit is part of,
and not in addition to, the Revolving Credit Commitments.



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



     “Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same
Type to a Borrower and, in the case of Eurodollar Rate Loans, having the same Interest Period made
by each of the Term Lenders pursuant to Section 2.01(b).



     “Term Commitment” means, as to each Term Lender, its obligation to make a Term Loan to
each Borrower pursuant to Section 2.01(b) in a principal amount not to exceed the amount
set



-25-









 




forth opposite such Term Lender’s name on Schedule 2.01 under the caption “Term
Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Term
Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement, including pursuant to Section 2.15. As of the Closing
Date, the aggregate amount of the Term Commitments is $375,000,000.




     “Term Facility” means, at any time (a) on or prior to the Closing Date, the aggregate
amount of the Term Commitments at such time and (b) thereafter, the aggregate principal amount of
the Term Loans of all Term Lenders outstanding at such time.



     “Term Lender” means, at any time, any Lender that has a Term Commitment or holds a
Term Loan at such time.



     “Term Loan” means a loan by a Term Lender to a Borrower under Section 2.01(b).



     “Term Loan Maturity Date” means December 11, 2012.



     “Term Note” means a promissory note made by a Borrower in favor of a Term Lender
evidencing Term Loans made or held by such Term Lender, substantially in the form of
Exhibit C-2.



     “Threshold Amount” means $25,000,000.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and L/C
Obligations.



     “Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all
Revolving Credit Loans, Swing Line Loans and L/C Obligations.



     “Transaction” means, collectively and without duplication, (a) the consummation of the
Horizon Acquisition, (b) the related issuance and delivery of Equity Interests by the Parent as
contemplated in the Horizon Merger Agreement, (c) the entering into by the Loan Parties of the Loan
Documents to which they are intended to be a party, (d) the refinancing of certain outstanding
indebtedness of the Borrowers, Horizon and their respective Subsidiaries and the termination of all
commitments with respect thereto, and (e) the payment of the fees and expenses incurred in
connection with the consummation of the foregoing.



     “Type” means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.



     “United States” and “U.S.” mean the United States of America.



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).



     “Vessel Mortgages” means collectively, each of the vessel mortgages executed by either
Borrower or any of their Subsidiaries in favor of the Administrative Agent for the benefit of the
Secured Parties, in form and substance reasonably acceptable to the Administrative Agent.



-26-









 





     “Wholly Owned Subsidiary” means as to any Person, any other Person all of the Equity
Interests of which (other than, in the case of a Foreign Subsidiary, directors’ qualifying shares
or shares required by applicable law to be held by a Person other than the Parent or a Subsidiary)
is owned by such Person directly and/or through other Wholly Owned Subsidiaries.



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



     (a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to
have the same meaning and effect as the word “shall.” The word “or” is not exclusive. Unless the
context requires otherwise, (i) any definition of or reference to any agreement, instrument or
other document (including any Organizational Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or modifications set forth
herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed
to include such Person’s successors and assigns, or if so specified herein, permitted assigns,
(iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting
such law and any reference to any law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time, and (vi) the words
“asset” and “property” shall be construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.



     (b) 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.”



     (c) 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. (a) Generally. 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 applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing the Initial Financial
Statements, except as otherwise specifically prescribed herein.



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     (b) Changes in GAAP. 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 Parent or the
Required Lenders shall so request, the Administrative Agent, the Lenders and the Parent 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, (i) such ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and (ii) the Parent 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.



     (c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Parent and its Subsidiaries or to the determination of any
amount for the Parent and its Subsidiaries on a consolidated basis or any similar reference shall,
in each case, be deemed to include each variable interest entity that the Parent is required to
consolidate pursuant to FASB Interpretation No. 46 – Consolidation of Variable Interest Entities:
an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a
Subsidiary as defined herein.



     1.04 Rounding. Any financial ratios required to be maintained by the Parent 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 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Central time (daylight or standard, as applicable).



     1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of
Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at
such time; provided, however, that with respect to any Letter of Credit that, by
its terms or the terms of any Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all such increases,
whether or not such maximum stated amount is in effect at such time; and provided
further that in determining the amount of a Letter of Credit, effect shall be given to all
decreases thereof to the extent that, under the terms of such Letter of Credit, such decreases have
become permanently effective and are not susceptible to reinstatement. For purposes of compliance
with the provisions of this Agreement, the amount of any L/C Obligations with respect to any Letter
of Credit that is denominated in a currency other than Dollars shall also include the equivalent of
such amount in Dollars, such equivalent amount thereof in Dollars to be determined by the
Administrative Agent at such time on the basis of the Spot Rate (as defined below) for the purchase
of such currency with Dollars. For purposes of this Section 1.06, the “Spot Rate” for a
currency means the rate determined by the Administrative Agent to be the rate quoted by the Person
acting in such capacity as the spot rate for the purchase by such Person of such currency with
another currency through its principal foreign exchange trading office at approximately




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11:00 a.m. on the date two Business Days prior to the date of such determination; provided
that the Administrative Agent may obtain such spot rate from another financial institution
designated by the Administrative Agent if the Person acting in such capacity does not have as of
the date of determination a spot buying rate for any such currency.




ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Loans.



     (a) The Revolving Credit Borrowings. Subject to the terms and conditions set forth
herein, each Revolving Credit Lender severally agrees to make loans (each such loan, a
“Revolving Credit Loan”) to the Borrowers, or either of them, from time to time, on any
Business Day during the Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Revolving Credit Lender’s Revolving Credit Commitment;
provided, however, that after giving effect to any Revolving Credit Borrowing, (i) the
Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, and (ii) the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Revolving
Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C
Obligations, plus such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Credit Lender’s
Revolving Credit Commitment. Within the limits of each Lender’s Revolving Credit Commitment, and
subject to the other terms and conditions hereof, the Borrowers may borrow under this
Section 2.01(a), prepay under Sections 2.05 and 2.06, and reborrow under
this Section 2.01(a). Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate
Loans, as further provided herein.



     (b) The Term Borrowing. Subject to the terms and conditions set forth herein, each
Term Lender severally agrees to make a single loan to each Borrower on the Closing Date in an
aggregate amount, for both such loans together, not to exceed such Term Lender’s Term Commitment.
The Term Borrowings shall consist of Term Loans made simultaneously by the Term Lenders in
accordance with their respective Term Commitments. Amounts borrowed under this Section
2.01(b) and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.



     2.02 Borrowings, Conversions and Continuations of Loans.



     (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon the applicable 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 11:00 a.m. (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. Each telephonic notice by a Borrower pursuant to this Section 2.02(a) 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 applicable



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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. Except as
provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base
Rate Loans shall be in a principal amount of $2,500,000 or a whole multiple of $100,000 in excess
thereof. Each Loan Notice (whether telephonic or written) shall specify (i) the applicable
Borrower requesting such Borrowing, (ii) whether such Borrower is requesting a Revolving Credit
Borrowing or a Term Borrowing, a conversion of Revolving Credit Loans or Term Loans from one Type
to the other, or a continuation of Eurodollar Rate Loans, (iii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iv) the
principal amount of Loans to be borrowed, converted or continued, (v) the Type of Loans to be
borrowed or to which existing Loans are to be converted, and (vi) if applicable, the duration of
the Interest Period with respect thereto. If the applicable Borrower fails to specify a Type of
Loan in a Loan Notice or if the applicable Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Loans shall be made 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 a
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 under the applicable Facility of the amount of its Applicable Percentage of the applicable
Loans, and if no timely notice of a conversion or continuation is provided by the applicable
Borrower, the Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans described in the preceding subsection. In the case of a Term
Borrowing or Revolving Credit Borrowing, each Appropriate Lender shall make the amount of its Loan
available to the Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 2:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing
is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all
funds so received available to the applicable Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the applicable 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 applicable Borrower; provided, however, that if, on the date the Loan Notice with respect to
any Revolving Credit Borrowing is given by the applicable Borrower, there are L/C Borrowings
outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of
any such L/C Borrowings, and second, shall be made available to the applicable Borrower as provided
above.



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



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     (d) The Administrative Agent shall promptly notify the applicable Borrower and the Lenders of
the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the applicable 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 Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than ten Interest
Periods in effect.



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer severally
agrees, in reliance upon the agreements of the Lenders set forth in this
Section 2.03, (1) from time to time on any Business Day during the period from the
Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the
account of each Borrower, and to amend or extend Letters of Credit previously issued by it,
in accordance with subsection (b) below, and (2) to honor drawings under the Letters of
Credit issued by it; and (B) the Lenders severally agree to participate in Letters of Credit
issued for the account of each Borrower and any drawings thereunder; provided that
after giving effect to any L/C Credit Extension with respect to any Letter of Credit,
(x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility,
(y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit
Lender, plus such Lender’s Applicable Revolving Credit Percentage of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Applicable Revolving Credit
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not
exceed the Letter of Credit Sublimit. Each request by a Borrower for the issuance or
amendment of a Letter of Credit shall be deemed to be a representation by such Borrower that
the L/C Credit Extension so requested complies with the conditions set forth in the proviso
to the preceding sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully
revolving, and accordingly each Borrower may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant
hereto, and from and after the Closing Date shall be subject to and governed by the terms
hereof.




     (ii) No L/C Issuer shall issue any Letter of Credit, if:




     (A) subject to Section 2.03(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance or
last extension, unless the Required Revolving Credit Lenders have approved such
expiry date; or



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     (B) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have
approved such expiry date.




     (iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such
Letter of Credit, or any Law applicable to such L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C
Issuer refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon such L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which such L/C
Issuer is not otherwise entitled to be compensated hereunder) not in effect on the
Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which such L/C Issuer in
good faith deems material to it;




     (B) the issuance of such Letter of Credit would violate one or more policies of
such L/C Issuer applicable to letters of credit generally;




     (C) except as otherwise agreed by the Administrative Agent and such L/C Issuer,
such Letter of Credit is in an initial stated amount less than $100,000, in the case
of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of
Credit;




     (D) except as otherwise agreed by the Administrative Agent and such L/C Issuer,
such Letter of Credit is to be denominated in a currency other than Dollars;




     (E) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder; or




     (F) a default of any Revolving Credit Lender’s obligations to fund under
Section 2.03(c) exists or any Lender is at such time a Defaulting Lender
hereunder, unless such L/C Issuer has entered into satisfactory arrangements with
the Borrowers or such Lender to eliminate such L/C Issuer’s risk with respect to
such Lender.




     (iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.




     (v) No L/C Issuer shall be under any obligation to amend any Letter of Credit if
(A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit



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in its amended form under the terms hereof, or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit.




     (vi) Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and each L/C Issuer shall have
all of the benefits and immunities (A) provided to the Administrative Agent in Article
IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used
in Article IX included such L/C Issuer with respect to such acts or omissions, and
(B) as additionally provided herein with respect to the L/C Issuers.



     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the applicable Borrower delivered to the applicable L/C Issuer (with a copy to
the Administrative Agent) in the form of a Letter of Credit Application, appropriately
completed and signed by a Responsible Officer of the applicable Borrower. Such Letter of
Credit Application must be received by the applicable L/C Issuer and the Administrative
Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as
the Administrative Agent and the applicable L/C Issuer may agree in a particular instance in
their sole discretion) prior to the proposed issuance date or date of amendment, as the case
may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter
of Credit Application shall specify in form and detail satisfactory to the applicable L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address
of the beneficiary thereof; (E) the documents, if any, to be presented by such beneficiary
in case of any drawing thereunder; (F) the full text of any certificate to be presented by
such beneficiary in case of any drawing thereunder; and (G) such other matters as such L/C
Issuer may reasonably require. In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the applicable L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as such L/C Issuer may reasonably require.
Additionally, the applicable Borrower shall furnish to the applicable L/C Issuer and the
Administrative Agent such other documents and information pertaining to such requested
Letter of Credit issuance or amendment, including any Issuer Documents, as such L/C Issuer
or the Administrative Agent may reasonably require.




     (ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C
Issuer will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the
applicable Borrower and, if not, such L/C Issuer will provide the Administrative Agent with
a copy thereof. Unless the applicable L/C Issuer has received written notice



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from any Revolving Credit Lender, the Administrative Agent or any Loan Party, at least
one Business Day prior to the requested date of issuance or amendment of the applicable
Letter of Credit, that one or more applicable conditions contained in Article IV
shall not then be satisfied, then, subject to the terms and conditions hereof, such L/C
Issuer shall, on the requested date, issue a Letter of Credit for the account of the
applicable Borrower or enter into the applicable amendment, as the case may be, in each case
in accordance with such L/C Issuer’s usual and customary business practices. Immediately
upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C
Issuer a risk participation in such Letter of Credit in an amount equal to the product of
such Lender’s Applicable Revolving Credit Percentage times the amount of such Letter
of Credit.




     (iii) If a Borrower so requests in any applicable Letter of Credit Application, the
applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension Letter of
Credit”); provided that any such Auto-Extension Letter of Credit must permit
such L/C Issuer to prevent any such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in
each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.
Unless otherwise directed by the applicable L/C Issuer, the applicable Borrower shall not
be required to make a specific request to such L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have
authorized (but may not require) the applicable L/C Issuer to permit the extension of such
Letter of Credit at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that such L/C Issuer shall not permit
any such extension if (A) such L/C Issuer has determined that it would not be permitted, or
would have no obligation, at such time to issue such Letter of Credit in its revised form
(as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of
Section 2.03(a) or otherwise), or (B) it has received notice (which may be by
telephone or in writing) on or before the day that is seven Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have
elected not to permit such extension or (2) from the Administrative Agent, any Revolving
Credit Lender or the applicable Borrower that one or more of the applicable conditions
specified in Section 4.02 is not then satisfied, and in each such case directing
such L/C Issuer not to permit such extension.




     (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the
applicable L/C Issuer will also deliver to the applicable Borrower and the Administrative
Agent a true and complete copy of such Letter of Credit or amendment.



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the applicable L/C Issuer shall notify the



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applicable Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on
the date of any payment by the applicable L/C Issuer under a Letter of Credit (each such
date, an “Honor Date”), such Borrower shall reimburse such L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing. If such Borrower
fails to so reimburse such L/C Issuer by such time, the Administrative Agent shall promptly
notify each Revolving Credit Lender of the Honor Date, the amount of the unreimbursed
drawing (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable
Revolving Credit Percentage thereof. In such event, the applicable Borrower shall be deemed
to have requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the
Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but
subject to the amount of the unutilized portion of the Revolving Credit Commitments and the
conditions set forth in Section 4.02 (other than the delivery of a Loan Notice and
without giving effect to such Borrower’s failure to so reimburse such L/C Issuer as provided
in this Section 2.03(c) as a Default for purposes of Section 4.02). Any
notice given by an L/C Issuer or the Administrative Agent pursuant to this
Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.




     (ii) Each Revolving Credit Lender shall upon any notice pursuant to
Section 2.03(c)(i) make funds available to the Administrative Agent for the account
of the applicable L/C Issuer at the Administrative Agent’s Office in an amount equal to its
Applicable Revolving Credit Percentage of the Unreimbursed Amount not later than 2:00 p.m.
on the Business Day specified in such notice by the Administrative Agent, whereupon, subject
to the provisions of Section 2.03(c)(iii), each Lender that so makes funds available
shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount.
The Administrative Agent shall remit the funds so received to the applicable L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in
Section 4.02 (without giving effect to the applicable Borrower’s failure to
reimburse the applicable L/C Issuer as provided in this Section 2.03(c) as a Default
for purposes of Section 4.02) cannot be satisfied or for any other reason, the
applicable Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C
Borrowing shall be due and payable on demand (together with interest) and shall bear
interest at the Default Rate. In such event, each Revolving Credit Lender’s payment to the
Administrative Agent for the account of such L/C Issuer pursuant to
Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such
L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.




     (iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn
under any Letter of Credit, interest in respect of such Lender’s Applicable



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Revolving Credit Percentage of such amount shall be solely for the account of the
applicable L/C Issuer.




     (v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C
Advances to reimburse the respective L/C Issuers for amounts drawn under Letters of Credit,
as contemplated by this Section 2.03(c), shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against any L/C Issuer, either
Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of
a Default, or (C) any other occurrence, event or condition, whether or not similar to any of
the foregoing; provided, however, that each Revolving Credit Lender’s
obligation to make Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by the applicable Borrower
of a Loan Notice and without giving effect to such Borrower’s failure to reimburse the
applicable L/C Issuer as provided in this Section 2.03 as a Default for purposes of
Section 4.02). No such making of an L/C Advance shall relieve or otherwise impair
the obligation of the applicable Borrower to reimburse the applicable L/C Issuer for the
amount of any payment made by such L/C Issuer under any Letter of Credit issued by it,
together with interest as provided herein.




     (vi) If any Revolving Credit Lender fails to make available to the Administrative Agent
for the account of the applicable L/C Issuer any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.03(c) by the time specified
in Section 2.03(c)(ii), such L/C Issuer shall be entitled to recover from such
Lender (acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on which such
payment is immediately available to such L/C Issuer at a rate per annum equal to the greater
of the Federal Funds Rate and a rate determined by such L/C Issuer in accordance with
banking industry rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by such L/C Issuer in connection with the foregoing. If
such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Loan included in the relevant Borrowing or L/C Advance in respect
of the relevant L/C Borrowing, as the case may be. A certificate of the applicable L/C
Issuer submitted to any Revolving Credit Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive absent manifest
error.



     (d) Repayment of Participations.




     (i) At any time after the applicable L/C Issuer has made a payment under any Letter of
Credit and has received from any Revolving Credit Lender such Lender’s L/C Advance in
respect of such payment in accordance with Section 2.03(c), if the Administrative
Agent receives for the account of such L/C Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the applicable Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Revolving



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Credit Lender its Applicable Revolving Credit Percentage thereof in the same funds as
those received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of an L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant to any settlement
entered into by the applicable L/C Issuer in its discretion), each Revolving Credit Lender
shall pay to the Administrative Agent for the account of the applicable L/C Issuer its
Applicable Revolving Credit Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is returned by such
Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.
The obligations of the Revolving Credit Lenders under this clause shall survive the payment
in full of the Obligations and the termination of this Agreement.



     (e) Obligations Absolute. The obligation of a Borrower to reimburse the respective
L/C Issuer for each drawing under each Letter of Credit issued by it and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including the following:




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that
either Borrower or any Subsidiary may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), such L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;




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




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




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



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     The applicable Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the
applicable Borrower’s instructions or other irregularity, such Borrower will immediately notify the
applicable L/C Issuer. The Borrowers shall be conclusively deemed to have waived any such claim
against the applicable L/C Issuer and its correspondents unless such notice is given as aforesaid.



     (f) Role of L/C Issuer. Each Lender and each Borrower agree that, in paying any
drawing under a Letter of Credit, the applicable L/C Issuer shall not have any responsibility to
obtain any document (other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. None of any L/C
Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of an L/C Issuer shall be liable to any Lender for (i) any action taken or
omitted in connection herewith at the request or with the approval of the Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or
willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document. Each Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude any Borrower’s pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. None of any L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of an L/C Issuer shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.03(e); provided, however, that
anything in such clauses or otherwise in any Loan Document to the contrary notwithstanding, the
applicable Borrower may have a claim against the applicable L/C Issuer, and such L/C Issuer may be
liable to such Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by such Borrower which such Borrower proves were
caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C Issuer’s willful
failure to pay under any Letter of Credit issued by it after the presentation to it by the
beneficiary of a sight draft, certificate(s) or other documents strictly complying with the terms
and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, an
L/C Issuer may accept documents that appear on their face to be in order, without responsibility
for further investigation, regardless of any notice or information to the contrary, and the
applicable L/C Issuer shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.



     (g) Cash Collateral. Within two Business Days following the request of the
Administrative Agent, (i) if an L/C Issuer has honored any full or partial drawing request under
any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the
Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the
Borrowers shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all
L/C Obligations. Sections 2.06 and 8.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For purposes of this Section 2.03,
Section 2.06 and Section 8.02(c),



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“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent,
for the benefit of the L/C Issuers and the Lenders, as collateral for the L/C Obligations, cash or
deposit account balances pursuant to documentation in form and substance reasonably satisfactory to
the Administrative Agent and the L/C Issuers (which documents are hereby consented to by the
Lenders). Derivatives of the term “Cash Collateralize” have corresponding meanings. Each Borrower
hereby grants to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein and all proceeds of
the foregoing. Cash Collateral shall be maintained in blocked deposit accounts, which may be
interest-bearing at the applicable Borrower’s election, at Bank of America; provided that
if no Default or Event of Default has occurred and is continuing, and (y) in the case of clause (i)
above, all outstanding L/C Borrowings have been repaid, and (z) in the case of clause (ii) above,
following the Letter of Credit Expiration Date, no L/C Obligation for any reason remains
outstanding, such funds shall be released to or at the instructions of the Parent with the consent
of the Administrative Agent.




     (h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable
L/C Issuer and the applicable Borrower when a Letter of Credit is issued by such L/C Issuer
(including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP
shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the International Chamber of
Commerce at the time of issuance shall apply to each commercial Letter of Credit.



     (i) Letter of Credit Fees. The Parent shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) (i) for each commercial
Letter of Credit equal to the Applicable Margin times the daily amount available to be drawn under
such Letter of Credit, and (ii) for each standby Letter of Credit equal to the Applicable Margin
times the daily amount available to be drawn under such Letter of Credit. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit
Fees shall be (i) due and payable on the first Business Day after the end of each March, June,
September and December, commencing with the first such date to occur after the issuance of such
Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and
(ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Margin
during any quarter, the daily amount available to be drawn under each standby Letter of Credit
shall be computed and multiplied by the Applicable Margin separately for each period during such
quarter that such Applicable Margin was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Revolving Credit Lenders, while any Event of
Default exists, all Letter of Credit Fees shall accrue at the Default Rate.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Parent shall pay directly to the applicable L/C Issuer for its own account a fronting fee (i) with
respect to each Letter of Credit issued by such Issuing Lender, at a rate of 12.5 basis points per
annum, computed (a) with respect to each commercial Letter of Credit on the amount of such Letter
of Credit, and payable upon the issuance thereof, and (b) with respect to each standby Letter of
Credit, on the daily amount available to be drawn under such Letter of Credit on a quarterly basis
in arrears, and due and payable on the first Business Day after the end of



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each March, June, September and December, commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand and (ii) with respect to any amendment of a commercial Letter of Credit increasing the
amount of such Letter of Credit, at a rate separately agreed between the applicable Borrower and
the applicable L/C Issuer, computed on the amount of such increase, and payable upon the
effectiveness of such amendment. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. In addition, the Parent shall pay directly to the applicable L/C Issuer
for its own account the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to
time in effect, effective schedules of which will be provided to either Borrower upon their
request. Such customary fees and standard costs and charges are due and payable within 30 days of
demand therefor and are nonrefundable.




     (k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.



     (l) Letters of Credit Issued for Guarantors. Notwithstanding that a Letter of Credit
issued or outstanding hereunder is in support of any obligations of, or is for the account of, a
Guarantor, the applicable Borrower shall be obligated to reimburse the applicable L/C Issuer
hereunder for any and all drawings under such Letter of Credit. Each Borrower hereby acknowledges
that the issuance of Letters of Credit for the account of Guarantors inures to the benefit of such
Borrower.



     2.04 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this
Section 2.04, to make loans (each such loan, a “Swing Line Loan”) to the Parent
from time to time on any Business Day during the Availability Period in an aggregate amount not to
exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Applicable Revolving Credit Percentage of the
Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line
Lender, may exceed the amount of such Lender’s Revolving Credit Commitment; provided, however, that
after giving effect to any Swing Line Loan, (i) the Total Revolving Credit Outstandings shall not
exceed the Revolving Credit Facility at such time, and (ii) the aggregate Outstanding Amount of the
Revolving Credit Loans of any Revolving Credit Lender at such time, plus such Revolving
Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C
Obligations at such time, plus such Revolving Credit Lender’s Applicable Revolving Credit
Percentage of the Outstanding Amount of all Swing Line Loans at such time shall not exceed such
Lender’s Revolving Credit Commitment, and provided, further, that the Parent shall not use the
proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing
limits, and subject to the other terms and conditions hereof, the Parent may borrow under this
Section 2.04, prepay under Section 2.05, and reborrow under this
Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making
of a Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk



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participation in such Swing Line Loan in an amount equal to the product of such Lender’s
Applicable Revolving Credit Percentage times the amount of such Swing Line Loan.




     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Parent’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Parent. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first
proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject to the terms and
conditions hereof, the Swing Line Lender will, not later than 4:00 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the
Parent at its office by crediting the account of the Parent on the books of the Swing Line Lender
in immediately available funds.



     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Parent (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Revolving Credit Lender make a Base Rate Revolving Credit
Loan in an amount equal to such Lender’s Applicable Revolving Credit Percentage of the
amount of Swing Line Loans then outstanding. Such request shall be made in writing (which
written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance
with the requirements of Section 2.02, without regard to the minimum and multiples
specified therein for the principal amount of Base Rate Loans, but subject to the unutilized
portion of the Revolving Credit Facility and the conditions set forth in
Section 4.02. The Swing Line Lender shall furnish the Parent with a copy of the
applicable Loan Notice promptly after delivering such notice to the Administrative Agent.
Each Revolving Credit Lender shall make an amount equal to its Applicable Revolving Credit
Percentage of the amount specified in such Loan Notice available to the Administrative Agent
in immediately available funds for the account of the Swing Line Lender at the
Administrative Agent’s Office not later than 2:00 p.m. on the day specified in such Loan
Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Revolving Credit Loan to the Parent in
such amount. The Administrative Agent shall remit the funds so received to the Swing Line
Lender.



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     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate
Revolving Credit Loans submitted by the Swing Line Lender as set forth herein shall be
deemed to be a request by the Swing Line Lender that each of the Revolving Credit Lenders
fund its risk participation in the relevant Swing Line Loan and each Lender’s payment to the
Administrative Agent for the account of the Swing Line Lender pursuant to
Section 2.04(c)(i) shall be deemed payment in respect of such participation.




     (iii) If any Revolving Credit Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.04(c) by the time specified
in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such
Lender (acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum equal to the
greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in
accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the Swing Line Lender in connection with
the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the
amount so paid shall constitute such Lender’s Loan included in the relevant Borrowing or
funded participation in the relevant Swing Line Loan, as the case may be. A certificate of
the Swing Line Lender submitted to any Revolving Credit Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.




     (iv) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to this
Section 2.04(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the Swing Line Lender, the Parent or any other Person for
any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Revolving Credit
Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in
Section 4.02. No such funding of risk participations shall relieve or otherwise
impair the obligation of the Parent to repay Swing Line Loans, together with interest as
provided herein.



     (d) Repayment of Participations.




     (i) At any time after any Revolving Credit Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account
of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable
Revolving Credit Percentage thereof in the same funds as those received by the Swing Line
Lender.




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     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Revolving Credit
Lender shall pay to the Swing Line Lender its Applicable Revolving Credit Percentage thereof
on demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the Swing Line Lender. The
obligations of the Revolving Credit Lenders under this clause shall survive the payment in
full of the Obligations and the termination of this Agreement.



     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Parent for interest owing on the Swing Line Loans. Until each
Revolving Credit Lender funds its Base Rate Revolving Credit Loan or risk participation pursuant to
this Section 2.04 to refinance such Lender’s Applicable Revolving Credit Percentage of any
Swing Line Loan, interest in respect of such Applicable Revolving Credit Percentage shall be solely
for the account of the Swing Line Lender.



     (f) Payments Directly to Swing Line Lender. The Parent shall make all payments of
principal and interest owing in respect of the Swing Line Loans directly to the Swing Line Lender.



     2.05 Optional Prepayments.



     (a) Each Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Loans under either Facility in whole or in part without premium or penalty;
provided that (i) such notice must be received by the Administrative Agent not later than 12:00
p.m. (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 $2,500,000 or a whole multiple of
$100,000 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 under each Facility to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the
Interest Period(s) of such Loans. The Administrative Agent will promptly notify each applicable
Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage
of such prepayment. If such notice is given by a Borrower, such 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 on the amount prepaid, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the respective Facilities in the
manner indicated by the applicable Borrower and to the Loans of the Lenders under each applicable
Facility in accordance with their respective Applicable Percentages.



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     (b) The Parent may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by the Parent, the
Parent shall make such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein.



     2.06 Mandatory Prepayments.



     (a) If at any time the Total Revolving Credit Outstandings exceed the Revolving Credit
Facility, the Parent shall immediately prepay (or cause to be prepaid) Revolving Credit Loans,
Swing Line Loans or Cash Collateralize the L/C Obligations, or any combination of the foregoing, in
an aggregate amount equal to such excess; provided, however, that the Borrowers shall not be
required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(a) unless
after the prepayment in full of the Revolving Credit Loans and the Swing Line Loans the Total
Revolving Credit Outstandings exceed the Revolving Credit Facility at such time.



     (b) If a Borrower or any of its Subsidiaries receives Net Cash Proceeds in excess of
$2,500,000 from any Asset Disposition or any Recovery Event (or series of related Asset
Dispositions or Recovery Events), then (i) on the next Business Day following the date of receipt
by such Borrower or the applicable Subsidiary of such Net Cash Proceeds and (ii) subject to
Section 2.06(e), the Parent shall prepay (or cause to be prepaid) the Loans by an amount
equal to the amount of Net Cash Proceeds so received, as set forth in Section 2.06(d);
provided, however that at the election of the Parent, and so long as no Default shall have
occurred and be continuing, the applicable Borrower, the applicable Subsidiary or any Loan Party
(or any combination of the foregoing) may reinvest all or any portion of such Net Cash Proceeds if
such reinvestment complies with the following requirements: (w) the Parent shall deliver to the
Administrative Agent a certificate of a Responsible Officer to the effect that the applicable
Borrower and/or any such permitted Subsidiary intends to reinvest all or any portion of such Net
Cash Proceeds in accordance with this Section 2.06(b), (x) the applicable Borrower, the
applicable Subsidiary or any Loan Party (or any combination of the foregoing) shall reinvest such
Net Cash Proceeds to acquire operating assets (including the construction of any such assets and
the Acquisition of all of the Equity Interests in one or more Persons owning or constructing any
such assets) or to improve, enlarge, develop, re-construct or repair the affected asset, or any
combination of the foregoing in each case, within 365 days after the receipt of the applicable Net
Cash Proceeds, (y) the applicable Borrower, the applicable Subsidiary or any Loan Party (or any
combination of the foregoing) shall, in the case of any Disposition of, or Recovery Event with
respect to, any Collateral, reinvest such proceeds in assets of the type described in clause (x)
above (including the construction of such assets and the Acquisition of all of the Equity Interests
in one or more Persons owning or constructing such assets) which will constitute Collateral and
take all actions required by Section 6.13 with respect thereto (provided that any
Equity Interests purchased with Net Cash Proceeds of Collateral pursuant to this Section
2.06(b) must be issued by a Person organized under the laws of any political subdivision of the
United States), and (z) the Parent shall prepay (or cause to be prepaid) the Loans, as set forth in
Section 2.06(d), with any portion of such Net Cash Proceeds not expended in accordance with
this Section 2.06(b)



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within such period. Pending the application of any such Net Cash Proceeds, the Parent may
reduce outstanding Indebtedness under the Revolving Credit Loans or invest such Net Cash Proceeds
in Cash Equivalents in which the Administrative Agent, for the benefit of the Secured Parties, has
a perfected first priority security interest, subject only to Permitted Liens. The provisions of
this Section do not constitute a consent to the consummation of any Disposition not permitted by
Section 7.05. With respect to any Asset Disposition or Recovery Event which will result in
Net Cash Proceeds in excess of $5,000,000, the Parent shall notify the Administrative Agent thereof
on or prior to the date of the applicable Asset Disposition or promptly following the date that the
Parent has actual knowledge that a Recovery Event has occurred.




     (c) If any Indebtedness shall be issued or incurred by a Borrower or any of its Subsidiaries
(excluding any Indebtedness permitted to be incurred in accordance with Section 7.03(a) –
(f) and (h) – (n) and Indebtedness incurred pursuant to Section 7.03(g) to the
extent provided below), then on the next Business Day following receipt by such Borrower or the
applicable Subsidiary of the Net Cash Proceeds from such issuance or incurrence, the Parent shall
prepay (or cause to be prepaid) the Loans by an amount equal to the amount of such Net Cash
Proceeds, as set forth in Section 2.06(d). If any Indebtedness shall be issued or incurred
by a Borrower or any of its Subsidiaries in accordance with Section 7.03(g) resulting in
Net Cash Proceeds in an amount (in the aggregate for all such Net Cash Proceeds) in excess of
$100,000,000, then on the next Business Day following receipt by such Borrower or the applicable
Subsidiary of the Net Cash Proceeds from such issuance or incurrence, the Parent shall prepay (or
cause to be prepaid) the Loans by an amount equal to 50% of the amount of such Net Cash Proceeds
(to the extent in excess of $100,000,000 as provided above), as set forth in
Section 2.06(d). The provisions of this Section do not constitute a consent to the
issuance or incurrence of any Indebtedness by a Borrower or any of its Subsidiaries not otherwise
permitted hereunder.



     (d) Each prepayment of Loans pursuant to the foregoing provisions of Section 2.06
shall be applied, first, to the prepayment of the Term Loans to the Term Lenders on a pro
rata basis and second to the prepayment of the Revolving Credit Loans as provided in
Section 2.06(f) below. Any prepayment of a Loan pursuant to this Section 2.06
shall be accompanied by all accrued interest thereon, together with any additional amounts required
pursuant to Section 3.05. The amount of each prepayment of the Term Loans pursuant to this
Section 2.06 shall be applied ratably to the then remaining installments of the Term Loans.



     (e) Notwithstanding any of the other provisions of clause (b) or (c) of this
Section 2.06, so long as no Default under Section 8.01(a) or Section 8.01(f),
or Event of Default shall have occurred and be continuing:




     (i) If, on any date on which a prepayment would otherwise be required to be made
pursuant to clause (b) or (c) of this Section 2.06, the aggregate amount of Net Cash
Proceeds required by such clause to be applied to prepay Loans on such date is less than or
equal to $5,000,000, the Parent may defer such prepayment until the first date thereafter on
which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under
clause (b) or (c) of this Section 2.06 to be applied to prepay Loans exceeds
$5,000,000. During such deferral period the Parent may apply (or cause to be applied) all
or any part of such aggregate amount to prepay Revolving Credit Loans,



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and each Borrower may, subject to the fulfillment of the applicable conditions set
forth in Article IV, reborrow such amounts (which amounts, to the extent originally
constituting Net Cash Proceeds, shall be deemed to retain their original character as Net
Cash Proceeds when so reborrowed) for application as required by this Section 2.06.
Upon the occurrence of a Default under Section 8.01(a) or Section 8.01(f),
or an Event of Default during any such deferral period, the Parent shall immediately prepay
(or cause immediately to be prepaid) the Loans in the amount of all Net Cash Proceeds
received by any Borrower or its Subsidiaries and other amounts, as applicable, that are
required to be applied to prepay Loans under this Section 2.06 (without giving
effect to the first and second sentences of this clause (e)) but which have not previously
been so applied.




     (ii) If, on any date on which a prepayment would otherwise be required to be made
pursuant to clause (b) or (c) of this Section 2.06, the Parent may, upon prior
written notice to the Administrative Agent, elect to defer such all or any portion of such
required prepayment until the end of an Interest Period provided that (A) all of the
applicable Net Cash Proceeds not previously applied to prepay the Loans shall be deposited
in a blocked deposit account at Bank of America on or before the Business Day following
receipt of such proceeds and (B) such proceeds are applied to prepay the Loans at the end of
such Interest Period. Each Borrower hereby grants to the Administrative Agent, for the
benefit of the Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing. During the continuance of a Default
under Section 8.01(a) or Section 8.01(f), or an Event of Default during any
such deferral period, the Administrative Agent may, and at the direction of the Required
Lenders shall, prepay the Loans in the amount of all Net Cash Proceeds and proceeds thereof
on deposit in, or credited to, such deposit account.



     (f) Prepayment of the Revolving Credit Facility made pursuant to this Section 2.06,
first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans,
second, shall be applied ratably among the Revolving Credit Lenders to the outstanding
Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C
Obligations; and the amount remaining, if any, after the prepayment in full of all L/C Borrowings,
Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization
of the remaining L/C Obligations in full may be retained by the applicable Borrower for use in the
ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash
Collateralized, the funds held as Cash Collateral shall be applied (without any further action by
or notice to or from any Borrower or any other Loan Party) to reimburse the applicable L/C Issuer
or the Revolving Credit Lenders, as applicable.



     2.07 Termination or Reduction of Commitments.



     (a) Optional. The Parent may, upon notice to the Administrative Agent, terminate the
Revolving Credit Facility, the Letter of Credit Sublimit or the Swing Line Sublimit, or any
combination of them, as the case may be, or at any time or from time to time permanently reduce the
Revolving Credit Facility, the Letter of Credit Sublimit or the Swing Line Sublimit, or any
combination of them, as the case may be; provided that (i) any such notice shall be
received by the Administrative Agent not later than 11:00 a.m. three Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount
of



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$10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Parent shall not
terminate or reduce the Revolving Credit Facility if, after giving effect thereto and to any
concurrent prepayments hereunder, the Total Revolving Credit Outstandings would exceed the
Revolving Credit Facility, and (iv) if, after giving effect to any reduction of the Revolving
Credit Facility, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the
Revolving Credit Facility, such Sublimit shall be automatically reduced by the amount of such
excess. The Administrative Agent will promptly notify the Revolving Credit Lenders of any such
notice of termination or reduction of the Revolving Credit Facility. Any reduction of the
Revolving Credit Facility shall be applied to the Revolving Credit Commitment of each Revolving
Credit Lender according to its Applicable Revolving Credit Percentage. All fees accrued until the
effective date of any termination of the Revolving Credit Facility shall be paid on the effective
date of such termination.




     (b) Mandatory. The aggregate Term Commitments shall be automatically and permanently
reduced to zero on the date of, and after giving effect to, the Term Borrowing.



     2.08 Repayment of Loans.



     (a) Each Borrower shall repay to the Revolving Credit Lenders on the Revolving Credit Maturity
Date the aggregate principal amount of Revolving Credit Loans made to such Borrower outstanding on
such date.



     (b) The Parent shall repay each Swing Line Loan on the earlier to occur of (i) the date ten
Business Days after such Loan is made and (ii) the Revolving Credit Maturity Date.



     (c) Each Borrower shall repay to the Term Lenders the aggregate outstanding principal amount
of the Term Loans made to such Borrower as follows: (i) on the last Business Day of each March,
June, September and December, commencing with June 30, 2008, the Borrowers shall repay the Term
Loans in the aggregate principal amount of $20,000,000 (which amount shall be (A) payable ratably
by the Borrowers in accordance with the percentage of the Term Facility advanced to each on the
Closing Date and (B) reduced as a result of the application of prepayments in accordance with the
order of priority set forth in Section 2.06) and (ii) on the Term Loan Maturity Date, each
Borrower shall repay the aggregate principal amount of the Term Loans made to such Borrower
outstanding on such date.



     2.09 Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan under a
Facility shall bear interest on the principal amount thereof from time to time outstanding for each
Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the
Applicable Margin for such Facility; (ii) each Base Rate Loan under a Facility shall bear interest
on the principal amount thereof from time to time outstanding from the applicable borrowing date
and until repaid at a rate per annum equal to the Base Rate plus the Applicable Margin for such
Facility; and (iii) each Swing Line Loan shall bear interest on the principal amount thereof from
time to time outstanding from the applicable borrowing date and until repaid at a rate per annum
equal to the Base Rate minus 1.50% per annum.



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     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
from time to time outstanding shall thereafter bear interest at a fluctuating interest rate per
annum at all times thereafter until paid equal to the Default Rate to the fullest extent permitted
by applicable Laws.




     (ii) If any amount (other than principal of any Loan) payable by either Borrower under
any Loan Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then upon the request of the
Required Lenders, or, with respect to any amounts payable solely in respect of Revolving
Credit Commitments or Letters of Credit, the Required Revolving Credit Lenders, or, with
respect to any amounts payable solely in respect of Term Loans, the Required Term Lenders,
such amount shall thereafter bear interest at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrowers shall pay interest on the principal amount of all outstanding Obligations
hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.




     (iv) 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 by the applicable Borrower 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.



     2.10 Fees. In addition to certain fees described in subsections (i) and (j) of
Section 2.03:



     (a) Commitment Fee. The Parent shall pay to the Administrative Agent for the account
of each Revolving Credit Lender in accordance with its Applicable Revolving Credit Percentage, a
commitment fee equal to the Applicable Margin times the actual daily amount by which the Revolving
Credit Facility exceeds the sum of (i) the Outstanding Amount of Revolving Credit Loans and
(ii) the Outstanding Amount of L/C Obligations. The commitment fee shall accrue at all times
during the Availability Period, including at any time during which one or more of the conditions in
Article IV is not met, 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 on the last day of the Availability Period. The commitment fee
shall be calculated quarterly in arrears, and if there is any change in the Applicable Margin
during any quarter, the actual daily amount shall be computed and multiplied by the Applicable
Margin separately for each period during such quarter that such Applicable Margin was in effect.



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     (b) Other Fees.




     (i) The Borrowers shall pay to the Arranger, any joint book manager, and the
Administrative Agent for their own respective accounts fees in the amounts and at the times
specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.




     (ii) The Borrowers shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.



     2.11 Computation of Interest and Fees.



     (a) All computations of interest for Base Rate Loans when the Base Rate is determined by Bank
of America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall be made on the
basis of a 360-day year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year). 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, subject to Section 2.13(a), bear
interest for one day. Each determination by the Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest error.



     (b) If, as a result of any restatement or other adjustment to the financial statements of the
Parent or for any other reason, the Parent or the Lenders determine that (i) the Consolidated
Leverage Ratio as calculated by the Parent as of any applicable date was inaccurate and (ii) a
proper calculation of the Consolidated Leverage Ratio would have resulted in higher pricing for
such period, the Parent shall immediately and retroactively be obligated to pay to the
Administrative Agent for the account of the applicable Lenders, promptly on demand by the
Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief
with respect to a Borrower under the Bankruptcy Code of the United States, automatically and
without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal
to the excess of the amount of interest and fees that should have been paid for such period over
the amount of interest and fees actually paid for such period. If, as a result of any restatement
or other adjustment to the financial statements of the Parent or for any other reason, the Parent
or the Lenders determine that (i) the Consolidated Leverage Ratio as calculated by the Parent as of
any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio
would have resulted in lower pricing for such period, the amount of any overpayment of interest and
fees actually made shall, upon delivery of an officer’s certificate to the Administrative Agent by
the Parent, demonstrating the amount of such overpayment, be applied as a credit to all subsequent
payments due from any Loan Party under any Loan Document to the applicable Lenders, ratably among
such Lenders, until the amount of such overpayment is eliminated. This paragraph shall not limit
the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under
Section 2.03(c)(iii), 2.03(i) or 2.09(b) or under Article VIII.
The parties’ obligations under this paragraph survive any termination of the Aggregate Commitments
pursuant to Section 8.02.



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     2.12 Evidence of Debt.



     (a) The Credit Extensions 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 Credit Extensions made by the Lenders to each
Borrower and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of either Borrower hereunder to pay
any amount owing with respect to the Obligations. 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, each 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.



     (b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing
Line Loans. In the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.



     2.13 Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by each Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by each 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 3:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (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 3:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by any 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.



     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to
1:00 p.m. on the date of such Borrowing) that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may



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assume that such Lender has made such share available on such date in accordance with
Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made
such share available in accordance with and at the time required by Section 2.02) and may,
in reliance upon such assumption, make available to the applicable Borrower a corresponding amount.
In such event, if a Lender has not in fact made its share of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to
pay to the Administrative Agent forthwith on demand such corresponding amount in immediately
available funds with interest thereon, for each day from and including the date such amount is made
available to the applicable Borrower to but excluding the date of payment to the Administrative
Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees customarily charged by
the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be
made by the applicable Borrower, the interest rate applicable to Base Rate Loans. If the
applicable Borrower and such Lender shall pay such interest to the Administrative Agent for the
same or an overlapping period, the Administrative Agent shall promptly remit to the applicable
Borrower the amount of such interest paid by such Borrower for such period. If such Lender pays
its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Loan included in such Borrowing. Any payment by such Borrower shall be
without prejudice to any claim such Borrower may have against a Lender that shall have failed to
make such payment to the Administrative Agent.




     (ii) Payments by Borrowers; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or an L/C
Issuer hereunder that such Borrower will not make such payment, the Administrative Agent may
assume that such Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable
L/C Issuer, as the case may be, the amount due. In such event, if such Borrower has not in
fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuer,
as the case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or such L/C Issuer, in immediately available
funds with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.



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



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan 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 applicable
Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set
forth in Article IV are not satisfied or waived in accordance with the terms hereof, the



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Administrative Agent shall promptly return such funds (in like funds as received from such
Lender) to such Lender, without interest.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments
pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make
any Loan, to fund any such participation or to make any payment under Section 10.04(c) 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 Loan, to purchase its participation or to make its payment under Section 10.04(c).



     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan 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.



     2.14 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any of the
Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time
in excess of its ratable share (according to the proportion of (i) the amount of such Obligations
due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in
respect of the Facilities due and payable to all Lenders hereunder and under the other Loan
Documents at such time) of payments on account of the Obligations in respect of the Facilities due
and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by
all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not
due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess
of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but
not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in
respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the
other Loan Documents at such time) of payment on account of the Obligations in respect of the
Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan
Documents at such time obtained by all of the Lenders at such time then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for
cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swing
Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of Obligations in respect of the Facilities then due and payable to the Lenders or
owing (but not due and payable) to the Lenders, as the case may be, provided that:




     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by a Borrower pursuant to and in accordance with the express terms of



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this Agreement or (y) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or subparticipations in L/C
Obligations or Swing Line Loans to any assignee or participant, other than to a Borrower or
any Subsidiary thereof (as to which the provisions of this Section shall apply).



     Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Borrower in the amount
of such participation.



     2.15 Increase of Commitments.



     (a) Request for Increase. Provided no Default exists or would result therefrom, upon
notice to the Administrative Agent (which shall promptly notify the Lenders), the Parent may from
time to time, request an increase in the aggregate amount of the Commitments under the Revolving
Credit Facility and/or the Term Loans by an amount not exceeding in the aggregate for all such
requests $125,000,000; provided that any such request for an increase shall be in a minimum
amount of $25,000,000 per applicable Facility. At the time of sending such notice, the Parent (in
consultation with the Administrative Agent) shall specify the time period within which each Lender
under the applicable Facility is requested to respond (which shall in no event be less than ten
Business Days from the date of delivery of such notice to the Lenders).



     (b) Lender Elections to Increase. Each applicable Lender shall notify the
Administrative Agent within such time period whether or not it agrees to increase its Revolving
Credit Commitment and/or Term Loans, as applicable, and, if so, whether by an amount equal to,
greater than, or less than its Applicable Percentage of such requested increase. Any Lender not
responding within such time period shall be deemed to have declined to increase its Revolving
Credit Commitment and/or Term Loans.



     (c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Parent and each Lender under the applicable Facility of the Lenders’
responses to each request made hereunder. To achieve the full amount of a requested increase and
subject to the approval of the Administrative Agent and, in the case of any increase in the
Revolving Credit Commitments, each L/C Issuer and the Swing Line Lender (which approvals shall not
be unreasonably withheld), the Parent may also invite additional Eligible Assignees to become
Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative
Agent and its counsel.



     (d) Effective Date and Allocations. If the aggregate amount of the Revolving Credit
Commitments and/or the Term Loans are increased in accordance with this Section, the Administrative
Agent and the Borrowers shall determine the effective date (the “Increase Effective Date”)
and the final allocation of such increase(s). The Administrative Agent shall promptly notify the
Parent and the Lenders of the final allocation of such increase(s) and the Increase Effective Date.
As of the Increase Effective Date for any increase of the Term Loans, the amortization schedule
for the Term Loans set forth in Section 2.08(c) shall be amended to increase the then-remaining
unpaid installments of principal by an aggregate amount equal to the



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additional Term Loans being made on such date, such aggregate amount to be applied to increase
such installments ratably in accordance with the amounts in effect immediately prior to such
Increase Effective Date. Such amendment may be signed by the Administrative Agent on behalf of the
Lenders.



     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrowers shall deliver to the Administrative Agent a certificate of each Loan Party
dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such
Loan Party approving or consenting to such increase, and (ii) in the case of the Borrowers,
certifying that, before and after giving effect to such increase, (A) the representations and
warranties contained in Article V and the other Loan Documents are true and correct in all
material respects on and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are true
and correct in all material respects as of such earlier date, and except that for purposes of this
Section 2.15, the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01, and (B) no Default exists or would
result from such increase (including pro forma compliance with Section 7.11 hereof giving
effect thereto). The additional Term Loans shall be made by the Term Lenders participating therein
pursuant to the procedures set forth in Section 2.02.



     (f) Ratability. Unless otherwise agreed by the Administrative Agent and all Lenders
under the Revolving Credit Facility, the Parent shall prepay any Revolving Credit Loans outstanding
on the Increase Effective Date (and pay any additional amounts required pursuant to
Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Loans
ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable
increase in the Revolving Credit Commitments under this Section or the addition of new Revolving
Credit Lenders under this Section.



     (g) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.13 or 10.01 to the contrary.



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     2.16 Multiple Borrower Provisions. The Obligations of the Borrowers shall be joint and
several in nature. CDI Vessel hereby irrevocably appoints the Parent as its agent for all purposes
relevant to this Agreement and each of the other Loan Documents, including (i) the giving and
receipt of notices, (ii) the execution and delivery of all documents, instruments and certificates
contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any
Loans made by the Lenders, to CDI Vessel hereunder. Any acknowledgment, consent, direction,
certification or other action which might otherwise be valid or effective only if given or taken by
all Borrowers, or by each Borrower acting singly, shall be valid and effective if given or taken
only by the Parent, whether or not CDI Vessel joins therein. Any notice, demand, consent,
acknowledgement, direction, certification or other communication delivered to the Parent in
accordance with the terms of this Agreement shall be deemed to have been delivered to CDI Vessel.



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of any Borrower hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if a
Borrower shall be required by applicable law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower
shall make such deductions and (iii) such Borrower shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.



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



     (c) Indemnification by the Borrowers. Each Borrower shall indemnify the
Administrative Agent, each Lender and each L/C Issuer, within 10 days after demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or such L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the applicable Borrower by a Lender or an L/C Issuer (with a copy to the Administrative Agent), or
by the Administrative Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be
conclusive absent manifest error.



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     (d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Borrower to a Governmental Authority, such Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.



     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which a Borrower is resident for
tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to such Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
such Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by a Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by such Borrower or the Administrative Agent as will enable such Borrower or
the Administrative Agent to determine whether or not such Lender is subject to backup withholding
or information reporting requirements.



     Without limiting the generality of the foregoing, in the event that a Borrower is resident for
tax purposes in the United States, any Foreign Lender shall deliver to such Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of such Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




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




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the applicable Borrower within the meaning of
Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in
Section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service
Form W-8BEN, or




     (iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit the Borrowers
to determine the withholding or deduction required to be made.



     (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or any L/C
Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other



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Taxes as to which it has been indemnified by a Borrower or with respect to which a Borrower
has paid additional amounts pursuant to this Section, it shall pay to such Borrower an amount equal
to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by
such Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or such L/C
Issuer, as the case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that each Borrower, upon the request
of the Administrative Agent, such Lender or such L/C Issuer, agrees to repay the amount paid over
to such Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or such L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or any L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to any Borrower or any other Person.



     3.02 Illegality. If any Lender determines that any Change in 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 to determine or charge interest
rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars
in the London interbank market, then, on notice thereof by such Lender to the Borrowers 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 Borrowers that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, each 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 such Borrower 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, each Borrower shall also pay accrued interest on the amount
so prepaid or converted by it.



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason 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 London interbank eurodollar market
for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan, or (c) 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 such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrowers and each Lender. Thereafter, the obligation of the Lenders to make or
maintain Eurodollar Rate Loans (i) in respect to the applicable amount and Interest Period referred
to in the preceding clause (a), or (ii) in the circumstances referred to in the preceding clauses
(b) and (c), shall be suspended until the Administrative Agent (upon the instruction of the
Required Lenders) revokes such notice. Upon



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receipt of such notice, the applicable Borrower may revoke any pending request for a Borrowing
of, conversion to 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 Costs; Reserves on Eurodollar Rate Loans.



     (a) Increased Costs Generally. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
contemplated by Section 3.04(e)) or any L/C Issuer;




     (ii) subject any Lender or any L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such
Lender or such L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or such L/C Issuer); or




     (iii) impose on any Lender or any L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C
Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such
Lender or such L/C Issuer, the applicable Borrower or Borrowers will pay to such Lender or such L/C
Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or
such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender or any L/C Issuer determines that any Change
in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such
Lender’s or such L/C Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on
the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below
that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company
could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C
Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with
respect to capital adequacy), then from time to time the



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applicable Borrower or Borrowers will pay to such Lender or such L/C Issuer, as the case may
be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such
Lender’s or such L/C Issuer’s holding company for any such reduction suffered.



     (c) Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Parent shall be conclusive absent manifest error. The Parent shall pay (or cause
to be paid) to such Lender or such L/C Issuer, as the case may be, the amount shown as due on any
such certificate within 10 days after receipt thereof. Upon request by the Parent, a Lender or L/C
Issuer shall also provide a certificate that such Lender or L/C Issuer is generally requesting such
compensation from other borrowers which such Lender or L/C Issuer deems similarly-situated to the
applicable Borrower or Borrowers.



     (d) Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or such L/C Issuer’s right to demand such compensation, provided that no
Borrower shall be required to compensate a Lender or an L/C Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or reductions suffered more than nine
months prior to the date that such Lender or such L/C Issuer, as the case may be, notifies the
Parent of the Change in Law giving rise to such increased costs or reductions and of such Lender’s
or such L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect thereof).



     (e) Reserves on Eurodollar Rate Loans. The Parent shall pay (or cause to be paid) to
each Lender, as long as such 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”), additional interest on the unpaid principal amount of each Eurodollar
Rate Loan equal to the actual costs of such reserves allocated to such 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 Loan, provided the Parent shall
have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender. If a Lender fails to give notice 10 days prior to the
relevant Interest Payment Date, such additional interest shall be due and payable 10 days from
receipt of such notice.



     3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, each 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 Loan to such Borrower other
than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);



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     (b) any failure by such Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by such 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 Parent pursuant to Section 10.13;



including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. Each 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 Borrowers 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 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 Mitigation Obligations; Replacement of Lenders.



     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or any Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. Each Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or gives a notice pursuant to Section 3.02 (which notice is not given
by other similarly situated Lenders) and does not subsequently designate a different Lending Office
or assign its rights and obligations hereunder to another of its offices, branches or affiliates as
provided above, or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Parent
may replace such Lender in accordance with Section 10.13.



     3.07 Survival. All of each Borrower’s obligations under this Article III shall
survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



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ARTICLE IV




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each
Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
either copies transmitted by electronic transmission or telecopies (followed, in each case,
promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer
of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form and substance
satisfactory to the Administrative Agent and each of the Lenders:




     (i) executed counterparts of this Agreement and the Guaranties;




     (ii) a Note executed by each Borrower in favor of each Lender requesting a Note;




     (iii) executed counterparts of the Security Documents, together with:




     (A) certificates representing the Equity Interests pledged pursuant to the
Security Documents (other than certificates representing Equity Interests in
Subsidiaries of Horizon that have been released from encumbrances but have not been
made physically available on the Closing Date), accompanied by undated stock powers
executed in blank and instruments evidencing any indebtedness pledged thereunder,
all indorsed in blank,




     (B) proper financing statements, duly prepared for filing under the Uniform
Commercial Code of all jurisdictions that the Administrative Agent may deem
necessary or reasonably desirable in order to perfect the liens and security
interests created under the Security Documents covering the Collateral described in
the Security Documents,




     (C) any landlord waivers and access letters reasonably requested by the
Administrative Agent with respect to real property interests of the Borrowers and
their Subsidiaries (including Horizon);




     (D) completed lien searches, dated on or before the date of the initial Credit
Extension, listing all effective financing statements filed in the jurisdictions
referred to in clause (B) above that name any Loan Party or any Subsidiary of any
Loan Party as debtor, together with copies of such other financing statements, and




     (E) evidence that all other action that the Administrative Agent may reasonably
deem necessary in order to perfect the liens and security interests



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created under the Security Documents has been completed (other than the filings
referred to in clause (B) above);




     (iv) an incumbency certificate executed by the Responsible Officer(s) of each Loan
Party evidencing the identity, authority and capacity of each Responsible Officer authorized
to act as a Responsible Officer in connection with each Loan Document to which such Loan
Party is a party;




     (v) copies, certified by the Secretary or Assistant Secretary (or other appropriate
Responsible Officer) of the applicable Loan Party, of all resolutions and other appropriate
authorizing actions taken or to be taken by or on behalf of each Loan Party authorizing and
approving the execution, delivery and performance of all Loan Documents to which such Loan
Party is a party, which resolutions or authorizing actions have not been revoked, modified,
amended or rescinded and are in full force and effect as of the Closing Date;




     (vi) such Organizational Documents, certified by the Secretary or Assistant Secretary
(or other appropriate Responsible Officer) of the applicable Loan Party, and/or certificates
of good standing or similar certificates or instruments as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or formed, and that
each Borrower and each Guarantor is validly existing, in good standing and (if applicable)
qualified to engage in business in each jurisdiction where its ownership, lease or operation
of properties or the conduct of its business requires such qualification, except to the
extent that failure to do so could not reasonably be expected to have a Material Adverse
Effect;




     (vii) a favorable legal opinion of (A) Fulbright & Jaworski L.L.P., counsel to the Loan
Parties, and (B) General Counsel of the Parent, each addressed to the Administrative Agent
and each Lender, as to such matters concerning the Loan Parties (or any of them) and the
Loan Documents as the Administrative Agent may reasonably request;




     (viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all material consents, licenses and approvals required to be obtained by any Loan
Party in connection with the execution, delivery and performance by such Loan Party and the
validity against such Loan Party of the Loan Documents to which it is a party, and such
consents, licenses and approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;




     (ix) a certificate signed by a Responsible Officer of each Borrower certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have been satisfied and
(B) a calculation of the pro forma Consolidated Leverage Ratio as of the last day of the
fiscal quarter of the Parent most recently ended as of the Closing Date, giving pro forma
effect to the Transaction;




     (x) evidence that all insurance required to be maintained pursuant to the Loan
Documents has been obtained and is in effect;



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     (xi) endorsements naming the Administrative Agent, on behalf of the Lenders, as an
additional insured or loss payee, as the case may be, under all insurance policies required
to be maintained pursuant to the Loan Documents with respect to the properties of the
Borrowers and their Subsidiaries (including Horizon) forming part of the Collateral; and




     (xii) evidence that the Existing Credit Agreement has been or concurrently with the
Closing Date is being terminated and all Liens securing obligations under the Existing
Credit Agreement have been or concurrently with the Closing Date are being released.



     (b) The Lenders shall have received, in form and substance satisfactory to each of them, such
financial, business and other information regarding each of the Borrowers, Horizon and their
respective Subsidiaries and businesses as they shall have timely and reasonably requested,
including, if so requested, information as to possible contingent liabilities, tax matters,
collective bargaining agreements, compensation and retention agreements with the management of
Horizon, and other arrangements with employees, certain material agreements, and the annual (or
other audited) financial statements of the Parent and its Subsidiaries and Horizon and its
Subsidiaries for the fiscal years ended 2004, 2005, and 2006;



     (c) The following shall have occurred:




     (i) All conditions precedent to the Horizon Acquisition shall have been, or shall be
concurrently with the Closing Date, satisfied or waived in accordance with the terms of the
Horizon Merger Agreement (other than the deposit of the cash portion of the Aggregate
Consideration with the Exchange Agent (as such terms are defined in the Horizon Merger
Agreement), which deposit shall be made concurrently with the making of the initial Credit
Extensions hereunder and, concurrently with the making of the Credit Extensions hereunder,
the Horizon Acquisition shall be consummated in all material respects in accordance with the
terms of the Horizon Merger Agreement (which shall not have been amended, supplemented, or
otherwise modified in any material respect, or any material condition therein waived without
the prior written consent of the Lenders) and in compliance in all material respects with
the applicable law and regulatory approvals;




     (ii) The Administrative Agent shall have received evidence that the Horizon Credit
Agreements, have been or concurrently with the Closing Date are being terminated and all
Liens securing obligations under each such agreements have been or concurrently with the
Closing Date are being released;




     (iii) The Administrative Agent shall have received, or shall receive substantially
concurrently, certified copies of a certificate of merger or other confirmation satisfactory
to the Administrative Agent of the consummation of the Horizon Acquisition in accordance
with the laws of the State of Delaware.



     (d) The Lenders shall be reasonably satisfied (i) with the pro forma capital and ownership
structure and the shareholder arrangements of each of the Borrowers and each of the Guarantors,
including, without duplication of any other requirement of this Section 4.01, the charter
and bylaws of each such Borrower and each such Guarantor and each agreement or



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instrument relating thereto, and (ii) that the common equity issuance by the Parent in
exchange, in part, for the equity securities of Horizon, comprising part of the Aggregate
Consideration (as defined in the Horizon Merger Agreement) has occurred;



     (e) There shall not have occurred any change, occurrence or development that could reasonably
be expected to have a material adverse effect on (i) the business, operations, results of
operations, or financial condition of Horizon and its Subsidiaries taken as a whole or (ii) the
ability of Horizon to consummate the Horizon Acquisition and all related transactions contemplated
by the Horizon Merger Agreement by the Termination Date (as defined in the Horizon Merger
Agreement), except, in each case, for any such effect attributable to (x) general regulatory or
economic conditions (including prevailing interest rate and stock market levels) in the United
States or the other countries in which Horizon operates, (y) changes in, or events or conditions
generally affecting the industries in which Horizon operates (including changes to commodity
prices), or (z) the negotiation, announcement, execution, delivery, or consummation of the
transactions contemplated by, or in compliance with, the Horizon Merger Agreement, since December
31, 2006;



     (f) The Lenders shall have received certification as to the financial condition and Solvency
of the Parent and its Subsidiaries from the chief financial officer of the Parent after giving
effect to the consummation of the Transaction (to the extent not completed as of the Closing Date)
and the incurrence of indebtedness related thereto;



     (g) There shall be no action, suit, investigation or proceeding pending or, to the knowledge
of either Borrower or Horizon, threatened against Horizon in any court or before any arbitrator or
Governmental Authority that could reasonably be expected to have a Material Adverse Effect on
Horizon;



     (h) Receipt of all consents and approvals of Governmental Authorities, shareholders and third
parties (including Hart-Scott-Rodino clearance) and approvals necessary in connection with the
Transaction and the related financings and other transactions contemplated hereby and expiration of
all applicable waiting periods without any action being taken by any authority that could restrain,
prevent or impose any material adverse conditions on any Borrower, Horizon, or their Subsidiaries
or such other transactions or that could seek or threaten any of the foregoing;



     (i) The Administrative Agent shall be satisfied that all Loans made by the Lenders to any
Borrower shall be in full compliance with the Federal Reserve’s margin regulations;



     (j) [Intentionally left blank];



     (k) [Intentionally left blank];



     (l) The Lenders shall be reasonably satisfied that (i) the Borrowers and their Subsidiaries
(including Horizon) will be able to meet their obligations under all employee and retiree welfare
plans as they are reasonably expected to accrue and mature, (ii) the employee benefit plans of the
Borrowers and their ERISA Affiliates (including Horizon) are, in all material respects, funded in
accordance with the minimum statutory requirements, (iii) no “reportable event” (as defined in
Section 4043(c) of ERISA, but excluding events for which reporting has been waived) has occurred as
to any such employee benefit plan, and (iv) no termination of, or



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withdrawal from, any such employee benefit plan has occurred or is contemplated that could
reasonably be expected to result in a liability that is material to the Borrowers and their
Subsidiaries taken as a whole (giving effect to the Transaction);



     (m) The Lenders shall have received and be satisfied with a pro forma consolidated balance
sheet for the Parent and Horizon on a combined basis as of September 30, 2007;



     (n) The Lenders shall have received pro forma forecasts prepared by management of the Parent,
in form and substance satisfactory to the Lenders and based upon such assumptions, information,
qualifications and other matters as the Parent’s management may have reasonably relied in good
faith (including financial information regarding Horizon and its Subsidiaries provided to it), of
consolidated balance sheets, income statements and cash flow statements of the Parent and Horizon
on a combined basis, on a quarterly basis for the Parent’s 2007 fiscal year, and on an annual basis
for the Parent’s fiscal years 2008 through and including 2011;



     (o) The Administrative Agent shall have received copies of all previously prepared
environmental reports, if any, and appraisals (which appraisals shall not be greater than two (2)
years old) of the vessels of the Parent and its Subsidiaries (including Horizon);



     (p) [Intentionally left blank];



     (q) [Intentionally left blank];



     (r) The Administrative Agent shall have received, in form and substance reasonably
satisfactory to the Administrative Agent and each of the Lenders, such other assurances,
certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the
Swing Line Lender or the Required Lenders reasonably may require and timely request;



     (s) Any fees required to be paid on or before the Closing Date shall have been paid unless the
receipt thereof on or before the Closing Date is or has been waived by the recipient thereof;



     (t) The Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to
the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the
extent invoiced in a reasonably detailed statement and received by the Borrowers prior to or at a
reasonable time on the Closing Date, plus such additional amounts of such fees, charges and
disbursements as shall constitute its reasonable estimate of such reasonable fees, charges and
disbursements 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); and



     (u) The Closing Date shall have occurred on or before December 31, 2007.



     Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this 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 required thereunder to be consented to or approved



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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.



     4.02 Conditions to all Credit Extensions. The obligation of each Lender and L/C Issuer to
honor any Request for Credit Extension (other than, for the avoidance of doubt, a Loan Notice
requesting only a conversion of Loans to the other Type, or a continuation of Eurodollar Rate
Loans) is subject to the following conditions precedent:



     (a) The representations and warranties of each Borrower and each other Loan Party contained in
Article V or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and correct in all material
respects on and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they shall be
true and correct in all material respects as of such earlier date, and except that for purposes of
this Section 4.02, the representations and warranties contained in subsections (a) and (b)
of Section 5.05 shall be deemed to refer, after the Closing Date, to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, (but
giving effect to any knowledge qualifier in such Section with respect to Horizon and its
Subsidiaries only for periods ending prior to the Closing Date, and only for so long as and to the
extent that the information for such periods is included in the information provided pursuant to
the applicable Section). For the avoidance of doubt, each reference to the “Loan Parties” or
“Subsidiaries” in the representations and warranties made on and as of the date of the initial
Credit Extension shall include Horizon and its applicable Subsidiaries, other than the references
to “Subsidiaries” in Sections 5.05(a) and (b), which references are qualified as therein provided.



     (b) No Default shall exist, or would result from such proposed Credit Extension or from the
application of the proceeds thereof.



     (c) The Administrative Agent and, if applicable, the applicable L/C Issuer or the Swing Line
Lender shall have received a Request for Credit Extension in accordance with the requirements
hereof.



     Each Request for Credit Extension (other than, for the avoidance of doubt, a Loan Notice
requesting only a conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans)
submitted by a Borrower shall be deemed to be a representation and warranty that the conditions
specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of
the applicable Credit Extension.



ARTICLE V




REPRESENTATIONS AND WARRANTIES




     Each Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01 Existence, Qualification and Power. Each Loan Party and each Subsidiary thereof (a) is
duly organized or formed, validly existing and, if applicable, in good standing under the Laws of
the jurisdiction of its incorporation or organization, (b) has all requisite corporate or
equivalent power and authority and all requisite governmental licenses,



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authorizations, consents and approvals to (i) own or lease its assets and carry on its
business as now conducted and (ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party, and (c) is duly qualified and is licensed and, if applicable, in
good standing under the Laws of each jurisdiction where its ownership, lease or operation of its
properties or the conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i), or (c), to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.



     5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or equivalent action, and do not and will not (a) violate the terms of any of
such Person’s Organizational Documents; (b) conflict with or result in any breach of or default
(however denominated) under, or the creation of any Lien under, or require any payment to be made
under any security issued by, or any loan agreement, indenture or other material agreement to which
such Person is a party or which is binding on its properties; (c) violate any order, injunction,
writ or decree of any Governmental Authority or any arbitral award to which such Person or its
property is subject; or (d) violate any Law applicable to it.



     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required to be made by any Loan Party in connection with (a) the
execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or
any other Loan Document, or for the consummation of the Transaction, (b) the grant by any Loan
Party of the Liens granted by it pursuant to the Security Documents to which it is a party or
(c) following delivery of the Security Documents pursuant to Section 6.13, the perfection
or maintenance of the Liens created under the Security Documents to which it is a party except for
(i) such authorizations, approvals, actions, notices and filings which have been duly obtained,
taken, given or made and are in full force and effect, and (ii) filings or other requisite actions
necessary to perfect or establish the priority of Liens created under the Security Documents, to
the extent not required by such Security Documents. All applicable waiting periods in connection
with that portion of the Transaction occurring under the Horizon Merger Agreement and in connection
with the Loan Parties’ performance under the remainder of the Transaction have expired without any
action having been taken by any Governmental Authority restraining, preventing or imposing
materially adverse conditions upon such portion of the Transaction or the rights of the Loan
Parties or their Subsidiaries to transfer or otherwise dispose of, or to create any Lien on, any
properties now owned or hereafter acquired by any of them.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of each Loan Party that is a party hereto or thereto, as the
case may be, enforceable against such Loan Party in accordance with its terms, except as such
enforcement may be limited by Debtor Relief Laws and similar Laws affecting creditors’ rights
generally or providing relief for debtors and subject to general principles of equity.




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     5.05 Financial Statements; No Material Adverse Effect; No Internal Control Event.



     (a) Each of the Initial Financial Statements, and to the best knowledge of each Borrower, the
Horizon Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly
presents the consolidated financial condition of the Parent and its Subsidiaries and Horizon and
its Subsidiaries, as applicable, as of the date thereof and their consolidated results of
operations for the period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; and (iii) show all
material indebtedness and other liabilities, direct or contingent, of the Parent and its
Subsidiaries and Horizon and its Subsidiaries, as applicable, as of the date thereof, including any
such liabilities for taxes, material commitments and Indebtedness.



     (b) The unaudited consolidated balance sheet of the Parent and its Subsidiaries and, to the
best knowledge of each Borrower, Horizon and its Subsidiaries, as applicable, dated June 30, 2007,
and the related consolidated statements of income or operations, shareholders’ equity and cash
flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the consolidated financial condition of the Parent and its
Subsidiaries and Horizon and its Subsidiaries, as applicable, as of the date thereof and their
consolidated results of operations for the period covered thereby, subject, in the case of clauses
(i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.



     (c) [Intentionally left blank.]



     (d) Since the date of the most recent financial statements furnished pursuant to Section
6.01(a) (or, until the date of the initial delivery of financial statements pursuant to such
Section, since the date of the Initial Financial Statements), there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.



     (e) To the best knowledge of the Parent, no Internal Control Event exists or has occurred
since the date of the Initial Financial Statements that has resulted in or could reasonably be
expected to result in a misstatement in any material respect, in any material financial information
delivered or to be delivered to the Administrative Agent or the Lenders, of (i) covenant compliance
calculations provided hereunder or (ii) the assets, liabilities, financial condition or results of
operations of the Parent and its Subsidiaries on a consolidated basis.



     (f) The consolidated forecasted balance sheet and statements of income and cash flows of the
Parent and its Subsidiaries delivered pursuant to Section 4.01 or Section 6.01(c)
were prepared in good faith on the basis of the assumptions stated therein, which assumptions were
reasonable in light of the conditions existing when made and, and represented, at the time of
delivery, the Parent’s or CDI Vessel’s, as applicable, good faith best estimate of its future
financial condition and performance.



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     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge any Borrower threatened, at law, in equity, in arbitration or before any Governmental
Authority, by or against any Borrower or any of their Subsidiaries or against any of their
properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan
Document, or any of the transactions contemplated hereby, or (b) either individually or in the
aggregate, if determined adversely to such Loan Party, could reasonably be expected to have a
Material Adverse Effect.



     5.07 No Default. Neither any Loan Party nor any Subsidiary thereof is in default under, or in
breach of, any Contractual Obligation to which it is a party or by which it is bound that could,
either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
No Default has occurred and is continuing or would result from the consummation of the transactions
contemplated by this Agreement or any other Loan Document.



     5.08 Ownership of Property; Liens. The Borrowers and their Subsidiaries have good and
defensible title to, or valid leasehold interests in, all real property necessary or used in the
ordinary conduct of its business, except for such defects in title as could not, individually or in
the aggregate, reasonably be expected to materially detract from the value thereof to, or the use
thereof in, the business of the Parent, CDI Vessel and their Subsidiaries. The property of
Borrowers and their Subsidiaries is subject to no Liens, other than Liens permitted by
Section 7.01.



     5.09 Environmental Compliance.



     (a) The Borrowers and their Subsidiaries are in compliance with all applicable Environmental
Laws, and have no liability under any Environmental Laws, except for such non-compliance or
liability which would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.



     (b) The Borrowers and their Subsidiaries hold all Environmental Permits (each of which is in
full force and effect) necessary for the operation of its business and for the use of any property
owned, leased, or otherwise operated by them, except for such Environmental Permits the failure to
hold which would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.



     (c) There (i) are no pending or, to the knowledge of any Borrower, threatened, claims against
any Borrower or any of their Subsidiaries under any Environmental Laws, and, (ii) neither Borrower
nor any of their Subsidiaries has received any written notice of alleged non-compliance with
applicable Environmental Laws or Environmental Permits which, in each case, would, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.



     5.10 Insurance. The properties of the Borrowers and their Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Parent, in such amounts,
with such deductibles and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the applicable



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Borrower or the applicable Subsidiary operates, except to the extent that reasonable self
insurance meeting the same standards is maintained with respect to such risks.



     5.11 Taxes. The Borrowers and their Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all Federal, state and other
material 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
any Borrower or any of their Subsidiaries that would, if made, have a Material Adverse Effect.
Except as set forth on Schedule 5.11, neither any Loan Party nor any Subsidiary thereof is
party to any tax sharing agreement with any Person that is not a Loan Party or Subsidiary thereof.



     5.12 ERISA Compliance.



     (a) Except where the failure to comply therewith, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect, each Plan is in compliance with
applicable Laws. Except as could not reasonably be expected to have a Material Adverse Effect,
each Borrower and each ERISA Affiliate have made all required contributions to each Plan subject to
Section 4.12 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 Pension
Plan.



     (b) There are no pending or, to the best knowledge of any Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.



     (c) (i) No ERISA Event has occurred that would reasonably be expected to result in an Event of
Default and (ii) in each case except as could not reasonably be expected to have a Material Adverse
Effect, either individually or in the aggregate, (A) neither Borrower nor any ERISA Affiliate has
incurred 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), (B) neither Borrower nor any ERISA
Affiliate has incurred any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA
with respect to a Multiemployer Plan, and (C) neither Borrower nor any ERISA Affiliate has engaged
in a transaction that is subject to Section 4069 or 4212(c) of ERISA.



     (d) The aggregate actuarial present value of accumulated plan benefit liabilities of each
Pension Plan (determined utilizing the assumptions specified for funding purposes in the most
recent actuarial valuation for each such Pension Plan) did not, as of the end of the most recent
plan year, exceed the aggregate fair market value of the assets of such Pension Plan by an amount
that is material to the Parent and its Subsidiaries, taken as a whole. The aggregate actuarial
present value of all accumulated post-retirement benefit obligations of the Parent and its



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ERISA Affiliates (determined utilizing the assumptions used for purposes of Statement of
Financial Accounting Standards No. 106) under Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA), as of the most recent valuation dates reflected in the Parent’s annual
financial statements contained in the Parent’s most recent Form 10-K (or, prior to delivery by the
Parent of its initial 10-K, contained in the Initial Financial Statements), are reflected on such
financial statements in accordance with the Statement of Financial Accounting Standards No. 106.



     5.13 Subsidiaries; Equity Interests. As of the Closing Date, the Borrowers have no
Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13, and all
of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid
and nonassessable and are owned by a Loan Party in the amounts specified on Part (a) of
Schedule 5.13 free and clear of all Liens (other than those created under the Security
Documents and any applicable Permitted Liens). As of the Closing Date, the Borrowers have no
equity investments in any other corporation or entity other than those specifically disclosed in
Part(b) of Schedule 5.13. All of the outstanding Equity Interests in the Borrowers have
been validly issued and are fully paid and nonassessable.



     5.14 Margin Regulations; Investment Company Act.



     (a) No Borrower is engaged or will engage, principally or as one of its important activities,
in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued
by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following
the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more
than 25% of the value of the assets (either of any Borrower individually or of any Borrower and its
Subsidiaries on a consolidated basis) subject to the provisions of Section 7.01 or
Section 7.05 or subject to any restriction contained in any agreement or instrument between
any Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the
scope of Section 8.01(e) will be margin stock.



     (b) None of the Borrowers, any Person Controlling any Borrower, or any Subsidiary is or is
required to be registered as an “investment company” under the Investment Company Act of 1940.



     5.15 Disclosure. The Borrowers have disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which either of them or any of their
Subsidiaries is a party or by which either of them is bound, and all other matters known to either
of them, that, individually or in the aggregate, could, if breached or violated by, enforced
against, or adversely determined in relation to, any Borrower or any of their Subsidiaries,
reasonably be expected to result in a Material Adverse Effect. No report, financial statement,
certificate or other information furnished (whether in writing or orally) by or on behalf of any
Loan Party to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other
Loan Document (in each case, as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial



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information, each Borrower represents only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time.



     5.16 Compliance with Laws. Each Borrower and its Subsidiaries is in compliance in all
material respects with the requirements of all Laws and all orders, writs, injunctions and decrees
binding on it or to its properties, except in such instances in which (a) such requirement of Law
or order, writ, injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.



     5.17 Taxpayer Identification Number. As of the Closing Date, each Borrower’s true and correct
U.S. taxpayer identification number is set forth on Schedule 10.02, and after the Closing
Date, as disclosed by such Borrower in writing to the Administrative Agent.



     5.18 Intellectual Property; Licenses, Etc. The Borrowers and their Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person unless such failure to own or possess the
right to use such IP Rights would not reasonably be expected to have a Material Adverse Effect. To
the best knowledge of each Borrower, no slogan or other advertising device, product, process,
method, substance, part or other material now employed, or now contemplated to be employed, by any
Borrower or any of their Subsidiaries infringes upon any rights held by any other Person in a
manner that would reasonably be expected to have a Material Adverse Effect. No claim or litigation
regarding any of the foregoing is pending or, to the best knowledge of each Borrower, threatened,
against any Borrower or any of their Subsidiaries, or their use thereof, which, either individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect.



     5.19 Intentionally Left Blank.



     5.20 Solvency. Each Loan Party is, individually and together with its Subsidiaries on a
consolidated basis, Solvent.



     5.21 Off-Balance Sheet Liabilities. Except to the extent that any lease by the Parent or any
of its Subsidiaries of the Port of Iberia facility following its sale constitutes an Off-Balance
Sheet Liability, neither Borrower nor any of their Subsidiaries has any liability in respect of any
Off-Balance Sheet Liabilities.



     5.22 Casualty, Etc. Neither the businesses nor the properties of any Loan Party or any of its
Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance) that, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.



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ARTICLE VI




AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
each Borrower shall, and shall (except in the case of the covenants set forth in Sections
6.01, 6.02, and 6.03) cause each of its Subsidiaries to:



     6.01 Financial Statements. Deliver to the Administrative Agent and each Lender:



     (a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Parent, a consolidated balance sheet of the Parent and its Subsidiaries as at the end of such
fiscal year, and the related consolidated statements of income or operations, shareholders’ equity
and cash flows for such fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, all prepared in accordance with GAAP, audited and accompanied by (i) a
report and opinion of a Registered Public Accounting Firm of nationally recognized standing
selected by the Parent and reasonably acceptable to the Required Lenders, which report and opinion
shall be prepared in accordance with generally accepted auditing standards and applicable
Securities Laws and shall not be subject to any “going concern” or like qualification or exception
or any qualification or exception as to the scope of such audit or with respect to the absence of
any material misstatement and (ii) an opinion of such Registered Public Accounting Firm
independently assessing the Parent’s internal controls over financial reporting in accordance with
Item 308 of SEC Regulation S-K, PCAOB Auditing Standard No. 2, and Section 404 of Sarbanes-Oxley,
in each case, so long as the foregoing are in effect and so long as therein required and applicable
to the Parent, and expressing a conclusion that contains no statement that there is a material
weakness in such internal controls, except for such material weaknesses as to which the Required
Lenders do not object;



     (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 Parent, a consolidated balance sheet of the Parent
and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements
of income or operations and cash flows for such fiscal quarter and for the portion of the Parent’s
fiscal year then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, certified by a Responsible Officer of the Parent as
fairly presenting the financial condition, results of operations, shareholders’ equity and cash
flows of the Parent and its Subsidiaries in accordance with GAAP, subject only to normal year-end
audit adjustments and the absence of footnotes;



     (c) as soon as available, but in any event within 30 days following the end of each fiscal
year of the Parent (i) forecasts prepared by management of the Parent, in form reasonably
satisfactory to the Administrative Agent and the Required Lenders, of consolidated balance sheets
and statements of income or operations and cash flows of the Parent and its respective Subsidiaries
for each of the immediately succeeding three years and (ii) the business plan of the Parent and its
respective Subsidiaries for the immediately following fiscal year; and



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As to any information contained in materials furnished pursuant to Section 6.02(c), the
Parent shall not be separately required to furnish such information under clause (a) or (b) above,
but the foregoing shall not be in derogation of the obligation of the Parent to furnish the
information and materials described in clauses (a) and (b) above at the times specified therein.



     6.02 Certificates; Other Information. Deliver to the Administrative Agent and each Lender
(except as provided in Section 6.02(a)):



     (a) 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 Parent and delivered to the Administrative Agent;



     (b) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of directors
(or the audit committee of the board of directors) of any Borrower by independent accountants in
connection with the accounts or books of the Parent or any Subsidiary, or any audit of any of them;



     (c) promptly after the same are publicly available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the Parent, and
copies of all annual, regular, periodic and special reports and registration statements which the
Parent may file or be required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent
pursuant hereto;



     (d) promptly after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required to be furnished to the
Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;



     (e) promptly, and in any event within five Business Days after receipt thereof by any Loan
Party or any Subsidiary thereof, copies of each notice or other correspondence received from the
SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or
possible investigation or other inquiry by such agency regarding financial or other operational
results of any Loan Party or any Subsidiary thereof; and



     (f) promptly, such additional information regarding the business, financial or corporate
affairs of the Parent 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.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(b), (c), (d), or (e) (to the extent any such documents
are included in materials otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the Parent posts such
documents, or provides a link thereto on the Parent’s website on the Internet at the website
address listed on Schedule 10.02; or (ii) on which such documents are posted on the
Parent’s behalf on an Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-



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party website or whether sponsored by the Administrative Agent); provided that:
(i) the Parent shall, upon request of the Administrative Agent, deliver paper copies of such
documents to the Administrative Agent for any Lender that requests paper copies until the
Administrative Agent notifies the Parent to cease delivering paper copies and (ii) the Parent shall
notify the Administrative Agent (by telecopier or electronic mail) of the posting by it of any such
documents and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every
instance the Parent shall be required to provide paper copies of the Compliance Certificates
required by Section 6.02(a) to the Administrative Agent. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Parent with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies of such documents.



     Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuers materials and/or information provided by or on
behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Parent or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Person’s securities. Each Borrower hereby agrees
that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly
and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the
Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C
Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public
information (although it may be sensitive or proprietary) with respect to the Borrowers or their
securities for purposes of United States Federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.07); (y) all Borrower Materials so marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public Investor;” and
(z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials
that are not so marked “PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Investor.”



     6.03 Notices. Promptly notify the Administrative Agent and each Lender:




     (a) of the occurrence of any Default;



     (b) of any occurrence or event that has resulted or could reasonably be expected to result in
a Material Adverse Effect, including, if any of the same resulted in or could be reasonably be
expected to result in a Material Adverse Effect, (i) breach or non-performance of, or any default
under, a Contractual Obligation of a Borrower or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between a Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any



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litigation or proceeding affecting a Borrower or any Subsidiary, including pursuant to any
applicable Environmental Laws;



     (c) of the occurrence of any ERISA Event, upon any Borrower obtaining knowledge thereof;



     (d) of any material change in accounting policies or financial reporting practices by the
Parent and the Subsidiaries taken as a whole;



     (e) of the determination by the Registered Public Accounting Firm providing the opinion
required under Section 6.01(a)(ii) (in connection with its preparation of such opinion) or
the Parent’s determination at any time of the occurrence or existence of any Internal Control
Event; and



     (f) any public offering of Equity Interests of the Parent, each such notice to be delivered to
the Administrative Agent not less than five Business Days after the occurrence of such event.



     Each notice pursuant to this Section 6.03 other than Section 6.03(f) shall be
accompanied by a statement of a Responsible Officer of the Parent or CDI Vessel setting forth
details of the occurrence referred to therein and stating what action the Parent or CDI Vessel has
taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a)
shall describe with particularity any and all provisions of this Agreement and any other Loan
Document that have been breached.



     6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its obligations and liabilities, including (a) 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 Parent, CDI Vessel or such Subsidiary; (b) all lawful claims which, if
unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.



     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
except in a transaction permitted by Section 7.04 or 7.05; (b) take all reasonable
action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable
in the normal conduct of its business, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its
registered patents, trademarks, trade names and service marks, the non-preservation of which could
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, in each case, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.



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     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Parent, 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 and providing for not less than 30 days’ prior notice to the
Administrative Agent of termination, lapse or cancellation of such insurance, except to the extent
reasonable self insurance meeting the same standards is maintained. Each Loan Party shall cause
the Administrative Agent to be named at all times as loss payee for the benefit of the Lenders in
respect of each property or casualty insurance policy that such Loan Party is required to maintain
under this Section with respect to the Collateral, and at all times as an additional insured party
in respect of each liability insurance policy that such Loan Party is required to maintain under
this Section.



     6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, writ, injunction or decree
is being contested in good faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.



     6.09 Books and Records. (a)  Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Parent, CDI Vessel 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 Parent, CDI Vessel or such Subsidiary, as the case may be.



     6.10 Inspection Rights. Permit representatives of the Administrative Agent and each Lender to
visit and inspect 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 such reasonable times during
normal business hours and as often as may be reasonably desired, upon reasonable advance notice to
the Parent or CDI Vessel, as applicable, and subject to applicable safety standards, applicable
privilege and confidentiality restrictions, and restrictions of owners of such records or
properties who are neither the Parent nor any Subsidiary; provided, however, 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
Borrowers at any time during normal business hours and without advance notice.



     6.11 Use of Proceeds. (a) Use the proceeds of the Credit Extensions made on the Closing Date
to (i) finance in part the Horizon Acquisition, (ii) refinance certain Indebtedness of the
Borrowers, Horizon and their Subsidiaries existing on the Closing Date (including without
limitation existing Indebtedness of CDI Vessel under the Existing Credit Agreement), (iii) pay fees
and expenses incurred in connection with the foregoing, the related equity issuance by the Parent,
the entering into and funding of the Facilities, and all related transactions, or (iv) any
combination of the foregoing matters; and (b) use the proceeds of all other Revolving Credit Loans
and use the Letters of Credit to provide ongoing working capital and for other general



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corporate purposes, including future Acquisitions, of the Borrowers and their Subsidiaries not
in violation of any Law or of any Loan Document.



     6.12 Material Contracts. Perform and observe all the terms and provision of each Material
Contract to be performed and observed by it, maintain each such Material Contract in full force and
effect and enforce each such Material Contract in accordance with its terms, except, in any case
described in this Section 6.12, where the failure to do so, either individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.



     6.13 Collateral; etc.



     (a) With respect to any property (other than any Excluded Property) acquired after the Closing
Date by any Loan Party, including without limitation pursuant to Section 7.02(h), and any
property that ceases to be Excluded Property promptly (i) execute and deliver to the Administrative
Agent such amendments or addendums to the Security Documents or such other documents as the
Administrative Agent reasonably deems necessary to grant to the Administrative Agent, for the
benefit of the Secured Parties, a security interest in such property and (ii) take all actions
necessary to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected
first priority security interest in such property (subject only to applicable Permitted Liens),
including without limitation, the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Security Documents or by law or as may be reasonably
requested by the Administrative Agent, in each case within a reasonable time following the
applicable requests of the Administrative Agent and receipt of applicable documents, if any.



     (b) With respect to any new Subsidiary (other than, (y) a Subsidiary that, promptly upon its
formation incurs Indebtedness pursuant to Section 7.03(h), to the extent such Subsidiary is
prohibited under the documents governing such Indebtedness from taking any of the following actions
and (z) in the case of clause (iii) below, a Foreign Subsidiary, and in the case of all clauses
below, an Immaterial Foreign Subsidiary or an Excluded Foreign Subsidiary) created or acquired
after the Closing Date, including without limitation pursuant to Section 7.02(h), (which,
for the purposes of this paragraph, shall include any existing Subsidiary that ceases to be an
Immaterial Foreign Subsidiary or an Excluded Foreign Subsidiary), by any Loan Party, promptly
(i) execute and deliver to the Administrative Agent such amendments or addendums to the Security
Documents as the Administrative Agent deems necessary to grant to the Administrative Agent, for the
benefit of the Secured Parties, a perfected first priority security interest in the Equity
Interests of such new Subsidiary that is owned by such Loan Party (subject only to applicable
Permitted Liens), (ii) deliver to the Administrative Agent the certificates (if any) representing
such Equity Interests, together with undated stock powers or share transfer forms, in blank,
executed and delivered by a duly authorized officer of the applicable Loan Party, (iii) cause such
new Subsidiary (A) to become a party to the Subsidiary Guaranty and the Security Documents and
(B) to take such actions necessary to grant to the Administrative Agent for the benefit of the
Secured Parties a perfected first priority security interest in the collateral described in the
Security Documents with respect to such new Subsidiary (subject only to applicable Permitted
Liens), including, without limitation, the filing of Uniform Commercial Code financing statements
in such jurisdictions as may be required by the Security Documents or by law or as may be
reasonably requested by the Administrative Agent, and (iv) if requested by



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the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the
matters described above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent, in each case within a reasonable time
following the applicable requests of the Administrative Agent and receipt of applicable documents,
if any.



     (c) With respect to (i) any new Excluded Foreign Subsidiary (other than an Immaterial Foreign
Subsidiary) created or acquired after the Closing Date by any Loan Party, including without
limitation pursuant to Section 7.02(h), and (ii) any Excluded Foreign Subsidiary of a Loan
Party which Subsidiary is existing on the Closing Date but whose Equity Interests are not subject
to a Foreign Pledge Agreement, if such Excluded Foreign Subsidiary ceases to be an Immaterial
Foreign Subsidiary, promptly (A) execute and deliver to the Administrative Agent such amendments or
addendums to the Security Documents or such other documents as the Administrative Agent deems
necessary and requests in order to grant to the Administrative Agent, for the benefit of the
Secured Parties, a perfected first priority security interest (subject only to applicable Permitted
Liens) in the Equity Interests of such Subsidiary that is owned by the applicable Loan Party,
(provided that in no event shall more than 66% of the total outstanding Equity Interests of any
such Excluded Foreign Subsidiary be required to be so pledged), and (B) deliver to the
Administrative Agent the certificates (if any) representing such Equity Interests, together with
undated stock powers or share transfer forms, in blank, executed and delivered by a duly authorized
officer of the applicable Loan Party, and take such other action as may be necessary or, in the
reasonable opinion of the Administrative Agent, desirable to perfect the Lien of the Administrative
Agent thereon, and (C) if requested by the Administrative Agent, deliver to the Administrative
Agent legal opinions relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative Agent, in each case
within a reasonable time following the applicable requests of the Administrative Agent and the
receipt of any applicable documents.



     (d) In the event that the Parent does not consummate a sale of its Port of Iberia facility
within twelve months of the Closing Date, the Parent shall promptly after the end of such twelve
month period (or such longer period as may be agreed to by the Administrative Agent in its sole
discretion), (a) execute and deliver to the Administrative Agent a Mortgage with respect to such
Port of Iberia facility, and (b) do, execute, acknowledge, deliver, record, re-record, file,
re-file, register and re-register any and all such further acts, deeds, certificates, assurances
and other instruments as the Administrative Agent may reasonably require in order to perfect and
maintain the validity, effectiveness and priority of such Mortgage and the Liens intended to be
created thereunder.



     6.14 Governmental Authorizations. If any filing, notice to, registration with, or consent or
other action of any Governmental Authority is required to be made or obtained by any Borrower or
any of their Subsidiaries under Law applicable to any of them to permit any Foreign Subsidiary to
make payments on any intercompany note made by it or any Restricted Payments to any other
Subsidiary or any Borrower, as applicable, promptly take such actions as are reasonably necessary
to obtain permission for such Foreign Subsidiary to make such note payments or Restricted Payments
without further Governmental Authority approval.



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     6.15 Compliance with Environmental Laws. In each case, to the extent that the failure to do
or cause to be done any of the following actions would reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect: (i) comply, and cause all lessees and other
Persons operating or occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; (ii) obtain and renew all Environmental
Permits necessary for its operations and properties; and (iii) conduct any investigation, study,
sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to
remove and clean up all Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that neither Borrower
nor any of their Subsidiaries shall be required to undertake any such cleanup, removal, remedial or
other action to the extent that its obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained with respect to such circumstances
in accordance with GAAP.



     6.16 Further Assurances. Promptly upon request by, and receipt of any applicable information
and documents from, the Administrative Agent, or any Lender through the Administrative Agent,
(a) correct any material defect or error that may be discovered in any Loan Document or in the
execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any and all such further acts,
deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender
through the Administrative Agent, may reasonably require from time to time in order to (i) carry
out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by
applicable law, subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights or
interests to the Liens now or hereafter intended to be covered by any of the Security Documents,
(iii) perfect and maintain the validity, effectiveness and priority of any of the Security
Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant,
assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the
rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan
Document or under any other instrument executed in connection with any Loan Document to which any
Loan Party or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to
do so.



ARTICLE VII




NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
neither Borrower shall, nor shall either permit any of its Subsidiaries to, directly or indirectly:



     7.01 Liens. Create, incur, assume or permit to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following:



     (a) Liens created pursuant to any Loan Document;



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     (b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) neither the property nor the description of the property
covered thereby is changed other than as a result of Maintenance Capital Expenditures, (ii) the
amount secured or benefited thereby is not increased other than as contemplated by
Section 7.03(b), (iii) the direct or any contingent obligor with respect thereto is not
changed other than in a transaction that is not prohibited by Section 7.04, and (iv) any
renewal or extension of the obligations secured or benefited thereby is permitted by
Section 7.03(b);



     (c) Liens for taxes, assessments, other governmental charges or levies 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, vendors’, landlords’,
or other like Liens, including common law maritime Liens or Liens under the Federal Maritime Lien
Act or similar state statutes, arising in the ordinary course of business for amounts 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 in accordance with GAAP 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 and appeal bonds, 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 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 not constituting an Event of Default
under Section 8.01(h);



     (i) Liens securing Indebtedness permitted under Section 7.03(e) or Section
7.03(j); provided that (i) such Liens do not at any time encumber any property other
than the property financed by such Indebtedness and (ii) the principal amount of the Indebtedness
secured thereby does not exceed the cost or fair market value, whichever is lower, of the property
being acquired on the date of acquisition;



     (j) [Intentionally left blank];




     (k) [Intentionally left blank];



     (l) [Intentionally left blank];



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     (m) Liens on leasehold interests of any Borrower or any Subsidiary created by the lessor of
the applicable leased premises in favor of a mortgagee of such premises;



     (n) [Intentionally left blank];



     (o) Liens for salvage or general average for amounts which are not delinquent 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;



     (p) Liens incurred in the ordinary course of business of any Borrower or any Subsidiary
arising from vessel chartering, operations, drydocking, maintenance, the furnishing of supplies or
fuel to vessels and crews wages, in each case (i) of a maritime lien nature and (ii)  for amounts
which are not delinquent 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;



     (q) Liens on the property or assets of a Person which becomes a Subsidiary after the date
hereof securing Indebtedness permitted by Section 7.03(n); provided that (i) such
Liens existed at the time such Person became a Subsidiary and were not created in anticipation
thereof, (ii) no such Lien is spread to cover any additional property or assets after the time such
Person becomes a Subsidiary, and (iii) the amount of Indebtedness secured thereby is not increased;



     (r) Liens securing Indebtedness (other than Guaranties) permitted under Section
7.03(h); provided that (i) such Liens do not at any time encumber any property other than the
property financed by such indebtedness and (ii) the principal amount of the Indebtedness secured
thereby does not exceed the amount of the costs and expenses of engineering, procurement,
construction, and financing of the applicable asset;



     (s) Liens in favor of a banking or brokerage institution arising by operation of law or
otherwise encumbering deposits or securities (including the right of set-off) held by such
institution, in each case which arise in the ordinary course of business in connection with the
provision of deposit or security account services and are within the general parameters customary
in the banking or brokerage industry; and



     (t) Liens (other than blanket Liens) not otherwise permitted by any other clause of this
Section 7.01, encumbering assets other than vessels, which secure Indebtedness in an
aggregate outstanding principal amount not exceeding $20,000,000 at any time.



     7.02 Investments. Make any Investments, except:




     (a) Investments existing on the date hereof and listed on Schedule 7.02;



     (b) Investments held by any Borrower or any Subsidiary in the form of Cash Equivalents;



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     (c) Investments consisting of loans or advances to officers, directors and employees of any
Borrower and its Subsidiaries in an aggregate amount not to exceed $5,000,000 at any time
outstanding, for ordinary business purposes;



     (d) Investments of the Parent or CDI Vessel in the Parent, CDI Vessel or any Subsidiary
Guarantor or in any Person that becomes a Subsidiary Guarantor contemporaneously with such
Investment, or, subject to the final clause of this Section 7.02, any Foreign Subsidiary,
and Investments of any Subsidiary in the Parent or CDI Vessel or in another Subsidiary Guarantor or
in any Person that becomes a Subsidiary Guarantor substantially contemporaneously with the making
of such Investment, or, subject to the final clause of this Section 7.02, any Foreign
Subsidiary;



     (e) Investments (i) consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
(ii) received in satisfaction or partial satisfaction thereof from financially troubled customers
and suppliers to the extent reasonably necessary in order to prevent or limit loss or received in
connection with the bankruptcy or reorganization of its customers and suppliers;



     (f) (i) Guarantees permitted by Section 7.03, and (ii) Guarantees by any Borrower or
any Subsidiary for the performance or payment obligations of any Borrower or any Wholly Owned
Subsidiary, which obligations were incurred in the ordinary course of business and do not
constitute Indebtedness;



     (g) Investments in joint ventures, if each of the following conditions is satisfied:
(i) immediately before and after giving effect to such Investment, no Default shall have occurred
and be continuing and (ii) the aggregate amount of all such Investments, net of the aggregate
amount of consideration received from the Dispositions of all Investments theretofore made pursuant
to this Section 7.02(g), shall not exceed $100,000,000 on a cumulative basis since the
Closing Date;



     (h) Investments as a result of Acquisitions, if each of the following conditions is satisfied:
(i) immediately before and after giving effect to such Acquisition, no Default shall have occurred
and be continuing, (ii) the Consolidated Leverage Ratio, calculated on a pro forma basis after
giving effect to such Acquisition, including any Indebtedness incurred in connection therewith,
shall be less than 2.75 to 1.00, (iii) such Acquisition shall not be opposed by the board of
directors or similar governing body of the Person or assets being acquired, (iv) the acquired
Person or assets are in substantially the same business as the Parent or any of its Subsidiaries or
any business reasonably related or incidental thereto and (v) the Parent or CDI Vessel complies (or
causes compliance with) all requirements of Section 6.13 with respect to the acquired
Person or assets;



     (i) cash Investments consisting of Capital Expenditures permitted pursuant to
Section 7.12;



     (j) Investments in any Person to the extent such Investment represents the non-cash portion of
consideration received for a Disposition of any property that was made pursuant to and in
compliance with Section 7.05;



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     (k) any Investments received solely in exchange for Equity Interests consisting of common
stock of the Parent (excluding any Equity Interests that would constitute Indebtedness);



     (l) Swap Contracts conforming to the description in Section 7.03(d);



     (m) Investments consisting of intercompany Indebtedness permitted to be incurred under, and
complying with the requirements of, Section 7.03; and



     (n) Investments not otherwise permitted by any other clause of this Section 7.02 which
do not exceed, in the aggregate, $50,000,000 on a cumulative basis since the Closing Date.


Notwithstanding anything in this Section 7.02 or elsewhere in this Agreement to the
contrary, in no event shall aggregate Investments in all Subsidiaries that are neither Loan Parties
nor Foreign Subsidiaries whose Equity Interests are pledged pursuant to a Foreign Pledge Agreement,
including Investments as a result of Acquisitions, exceed $50,000,000.




     7.03 Indebtedness. Create, incur, assume or permit to exist any Indebtedness, except:




     (a) Indebtedness under the Loan Documents;



     (b) Indebtedness existing on the date hereof and listed on Schedule 7.03 and any
refinancings, refundings, renewals or extensions thereof; provided that (i) the amount of such
Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension
and by an amount equal to any existing commitments unutilized thereunder, (ii) the terms relating
to principal amount, amortization, maturity, collateral (if any), and other material terms taken as
a whole, of any such refinancing, refunding, renewal or extending Indebtedness, and of any
agreement entered into and of any instrument issued in connection therewith, are no more
restrictive in any material respect to the Loan Parties than the terms of any agreement or
instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the
interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness
does not exceed the range of the market interest rates then available to the obligor thereunder for
comparable transactions, and (iii) if such Indebtedness is subordinated to the Obligations, the
terms relating to subordination of any such refinancing, refunding, renewal or extending
Indebtedness are no less favorable to the Lenders than the terms of any agreement or instrument
governing the Indebtedness being refinanced, refunded, renewed or extended;



     (c) Guarantees of any Borrower or any Subsidiary in respect of (i) Indebtedness otherwise
permitted hereunder and (ii) Indebtedness of joint ventures in which such Person owns Equity
Interests in an aggregate amount not to exceed $50,000,000;



     (d) obligations (contingent or otherwise) of any Borrower or any Subsidiary existing or
arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by
such Person in the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such Person, and not



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for purposes of speculation or taking a “market view” and (ii) such Swap Contract does not
contain any provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party other than as a result of offset or similar
rights;



     (e) Indebtedness in respect of capital leases, and purchase money obligations for fixed or
capital assets within the limitations set forth in Section 7.01(i); provided,
however, that the aggregate amount of all such Indebtedness at any one time outstanding
shall not exceed $30,000,000, and refinancings, refundings, extensions and renewals of any such
Indebtedness; provided that (i) the amount of such Indebtedness is not increased at
the time of such refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing, refunding, renewal or extension, (ii) the terms relating to
principal amount, amortization, maturity, collateral (if any), and other material terms taken as a
whole, of any such refinancing, refunding, renewal or extending Indebtedness, and of any agreement
entered into and of any instrument issued in connection therewith, are no more restrictive in any
material respect to the Loan Parties than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to
any such refinancing, refunding, renewing or extending Indebtedness does not exceed the range of
the market interest rates then available to the obligor thereunder for comparable transactions, and
(iii) if such Indebtedness is subordinated to the Obligations, the terms relating to subordination
of any such refinancing, refunding, renewal or extending Indebtedness are no less favorable to the
Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced,
refunded, renewed or extended;



     (f) unsecured Indebtedness in an aggregate principal amount not to exceed $20,000,000 at any
time outstanding;



     (g) unsecured Indebtedness that (A) at the time of its incurrence, has no maturity earlier
than 12 months after the Term Loan Maturity Date and the Revolving Loan Maturity Date, (B) does not
require any scheduled repayment, defeasance, or redemption of any principal amount thereof prior to
maturity, and (C) is subject to covenants, terms, and conditions which are no more restrictive than
the covenants, terms, and conditions of this Agreement;



     (h) Indebtedness incurred by a Wholly Owned Subsidiary of the Parent for the construction of a
vessel, provided that (i) such Subsidiary is a Domestic Subsidiary created for the purpose of
constructing and owning such vessel and owns no other material assets, (ii) such Subsidiary is the
sole owner of such vessel, (iii) neither the Parent nor any of its other Subsidiaries (A) provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) for such Indebtedness or (B) is directly or indirectly liable as a
guarantor or otherwise of such Indebtedness, except that the Parent or any Subsidiary may provide
an unsecured Guarantee in favor of the United States Maritime Administration with respect to any
such Indebtedness Guaranteed by the United States Maritime Administration, (iv) all expenditures
with respect to the construction of the vessel are made in compliance with Section 7.12;
and (v) the aggregate amount of all such Indebtedness incurred pursuant to this Section
7.03(h) shall not exceed $150,000,000 at any one time outstanding;



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     (i) in the case of the Parent, CDI Vessel or any Subsidiary which is a Loan Party,
Indebtedness owed to the Parent, CDI Vessel or any other Loan Party, provided that in each case
such Indebtedness shall (i) be permitted by Section 7.02 and (ii) be subordinated to the
Obligations on the terms set forth on Annex I to Schedule 7.03, or on other terms
reasonably acceptable to the Administrative Agent;



     (j) Indebtedness in respect of sale and leaseback transactions to the extent otherwise
permitted under Section 7.01(i) and Section 7.05(e);



     (k) [Intentionally left blank];



     (l) [Intentionally left blank];



     (m) [Intentionally left blank]; and



     (n) Indebtedness of a Person which becomes a Subsidiary after the date hereof in an aggregate
outstanding principal amount not exceeding, together with all the aggregate outstanding principal
amount of all other Indebtedness pursuant to this Section 7.03(n), $50,000,000 at any time,
provided that (i) such indebtedness existed at the time such Person became a Subsidiary and
was not created in anticipation thereof, (ii) neither Borrower nor any of its other Subsidiaries
(A) provides credit support of any kind (including any undertaking, agreement or instrument that
would constitute Indebtedness) for such Indebtedness or (B) is directly or indirectly liable as a
guarantor or otherwise of such Indebtedness, and (iii) immediately after giving effect to the
acquisition of such Person by the Parent, CDI Vessel or any of its Subsidiaries no Default or Event
of Default shall have occurred and be continuing.



     7.04 Fundamental Changes. Other than (i) a merger of the Parent, CDI Vessel or a Domestic
Subsidiary to effectuate a reincorporation or statutory conversion in another state of the United
States or (ii) a statutory conversion in any state of the United States, in either case upon at
least 30 days’ prior written notice to the Administrative Agent, merge, dissolve, liquidate,
consolidate with or into another Person, or Dispose of (whether in one transaction or in a series
of related transactions) all or substantially all of its assets (whether now owned or hereafter
acquired) to or in favor of any Person, except that, so long as no Default exists or would result
therefrom:



     (a) any Subsidiary may merge with or dissolve into (i) the Parent or CDI Vessel,
provided that the Parent or CDI Vessel, as applicable, shall be the continuing or surviving
Person, or (ii) any one or more other Subsidiaries, provided that when any Subsidiary Guarantor is
merging with or dissolving into another Subsidiary, the Subsidiary Guarantor shall be the
continuing or surviving Person;



     (b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Parent or CDI Vessel or to another Subsidiary, and may thereafter
liquidate or dissolve if applicable; provided that if the transferor in such a transaction
is a Subsidiary Guarantor, then the transferee must either be the Parent, CDI Vessel or a
Subsidiary Guarantor;



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     (c) the Parent or CDI Vessel or any of the Subsidiaries may merge with another Person to
effectuate an Acquisition permitted by Section 7.02(h); provided that the Parent,
CDI Vessel or the applicable Subsidiary is the acquiring or surviving entity (or, with respect to
any merger by a Subsidiary other than CDI Vessel, the surviving entity becomes a Subsidiary in the
transaction); and provided further that if such merging Subsidiary is a Guarantor,
the surviving entity becomes a Guarantor and complies with the requirements for new Guarantors
under Section 6.13; and



     (d) the Parent or any Subsidiary may Dispose of all of the Equity Interests of any Subsidiary
in accordance with Section 7.05(n).



     7.05 Dispositions. Make any Disposition or enter into any agreement to make any Disposition,
except (without duplication):



     (a) Dispositions of obsolete, surplus or worn out property or property that is no longer used
or useful for the business of the Parent, CDI Vessel or any Subsidiary, whether now owned or
hereafter acquired, in each case in the ordinary course of business;



     (b) Dispositions of inventory and Cash Equivalents, charters of vessels, and leases of
equipment, in each case in the ordinary course of business;



     (c) Dispositions of property to the Parent, CDI Vessel or a Wholly Owned Subsidiary; provided
that if the transferor of such property is the Parent, CDI Vessel, or a Subsidiary Guarantor, the
transferee thereof must either be the Parent, CDI Vessel or a Subsidiary Guarantor;



     (d) (i) Dispositions permitted by Section 7.04, and (ii) Restricted Payments permitted
by Section 7.06;



     (e) Dispositions in connection with any sale and leaseback transaction otherwise permitted
hereunder in an amount not to exceed $10,000,000 in the aggregate for any fiscal year;



     (f) Dispositions in the ordinary course of business, in one transaction or a series of related
transactions, of assets (other than Equity Interests of Subsidiaries) of either Borrower or its
Subsidiaries with a fair market value not exceeding $2,500,000 for each such Disposition and
$2,500,000 in the aggregate for all such Dispositions in any fiscal year;



     (g) [Intentionally left blank];




     (h) the Disposition of assets received pursuant to Section 7.02(e)(ii);



     (i) the grant in the ordinary course of business of any non-exclusive license of patents,
trademarks, registrations therefor and other similar intellectual property;



     (j) any Disposition of assets pursuant to (i) a condemnation, appropriation, seizure or
similar taking or proceeding by a Governmental Authority or (ii) the requirement of, or at the
direction of, a Governmental Authority;



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     (k) [Intentionally left blank];



     (l) Dispositions of assets, other than Collateral, constituting non-cash contributions to a
joint venture to the extent such Investment is permitted pursuant to Section 7.02(g) (for
the purpose of determining compliance with the limitations of such Section, the assets shall be
valued at the value attributed thereto in the applicable joint venture agreement or, if greater,
fair market value);



     (m) The exchange of any vessel (other than a vessel that is subject to a Vessel Mortgage) for
any vessel of equivalent value (including any cash or Cash Equivalents necessary in order to
achieve an exchange of equivalent value);



     (n) The Parent or any Subsidiary may Dispose of (including by means of a merger of such
Subsidiary) the Equity Interests of a Subsidiary (other than CDI Vessel); provided that (i) no less
than all of the Equity Interests of the Parent and its Subsidiaries in the applicable Subsidiary
are Disposed of concurrently, (ii) all such Dispositions shall be made for fair market value and
(iii) the Subsidiary so Disposed of shall not, on an aggregate basis with all other Subsidiaries
Disposed of pursuant to this Section 7.05(n), account for (y) assets having an aggregate
book value of greater than 5% of the consolidated total assets of the Parent and its Subsidiaries
or (z) Consolidated EBITDA exceeding 5% of the Consolidated EBITDA of the Parent, in each case
determined as of the end of the fiscal quarter most recently ended;



     (o) The granting of any Lien permitted hereunder and dispositions of property subject to any
such Lien that is transferred to the lienholder or its designee in satisfaction or settlement of
such lienholder’s claim;



     (p) Dispositions of assets (other than a vessel that is subject to a Vessel Mortgage) not
otherwise permitted under this Section 7.05; provided that (i) at the time of such
Disposition, no Default shall exist or would result from such Disposition and (ii) the aggregate
book value of all assets Disposed of in reliance on this clause (p) from and after the Closing
Date, together with the aggregate book value of the assets of all Subsidiaries Disposed of pursuant
to clause (n) above since the Closing Date, shall not exceed 15% of the total book value of all
assets of the Parent and its Subsidiaries as of the end of the most recent fiscal quarter of the
Parent;


provided, however, that any Disposition pursuant to clauses (a) through (e),
(j)(ii), (m), (n) and (p) shall be for fair market value.



For purposes of determining compliance with this Section 7.05, the fair market value of any
property Disposed of for consideration not consisting entirely of cash shall be the sum of the cash
portion of the consideration, if any, and the fair market value of the non-cash portion of the
consideration, as reasonably determined by the Parent in good faith.




     7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that:



     (a) each Subsidiary may declare and make Restricted Payments to the Parent, CDI Vessel, the
Guarantors and any other Person that owns an Equity Interest in such Subsidiary,



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ratably according to their respective holdings of the type of Equity Interest in respect of
which such Restricted Payment is being made;



     (b) the Parent, CDI Vessel and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity Interests of such Person;
and



     (c) so long as no Default shall have occurred and be continuing or would occur as a result
thereof (i) the Parent, CDI Vessel and each Subsidiary may purchase, redeem or otherwise acquire
Equity Interests issued by it with the proceeds received from the substantially concurrent issue of
new shares of its common stock or other common Equity Interests and (ii) the Parent may purchase,
redeem or otherwise acquire Equity Interests issued by it provided that with respect to
this clause (ii) the aggregate price paid for all such purchased, redeemed, or otherwise acquired
Equity Interests after the Closing Date may not exceed, on a cumulative basis since the Closing
Date, $100,000,000.



     7.07 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Parent, CDI Vessel and the Subsidiaries on
the date hereof or any business reasonably related or incidental thereto.



     7.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate
of the Parent, whether or not in the ordinary course of business, other than on fair and reasonable
terms substantially as favorable to the Parent, CDI Vessel or such Subsidiary as would be
obtainable by the Parent, CDI Vessel or such Subsidiary at the time in a comparable arm’s length
transaction with a Person other than an Affiliate, provided that the foregoing restriction
shall not apply to transactions as follows: (i) transactions between or among the Parent, CDI
Vessel and any Subsidiary Guarantor or between and among any Subsidiary Guarantors; (ii) any
Restricted Payment permitted by Section 7.06; (iii) Investments permitted under
Section 7.02(d); (iv) loans and advances permitted under Section 7.02(c) and
Guarantees permitted under Section 7.02(f); (v) the performance of employment, equity
award, equity option or equity appreciation agreements, plans or other similar compensation or
benefit plans or arrangements (including vacation plans, health and insurance plans, deferred
compensation plans and retirement or savings plans) entered into by the Parent, CDI Vessel or any
Subsidiary in the ordinary course of its business with its employees, officers and directors;
(vi) the performance of any agreement set forth under Schedule 7.08 and as in effect on the
date hereof or as otherwise in a form as provided on such Schedule; and (vii) fees and compensation
to, and indemnity provided on behalf of, officers, directors, and employees of the Parent, CDI
Vessel or any Subsidiary in their capacity as such, to the extent such fees and compensation are
customary.



     7.09 Burdensome Agreements. Except for restrictions and conditions (1) imposed by Law,
(2) existing on the date hereof, together with each extension, renewal, amendment or modification
to the extent it does not expand the scope of any such restriction or condition or otherwise make
the same more restrictive, (3) of a customary nature contained in agreements relating to the
Disposition of a Subsidiary otherwise permitted under this Agreement pending such Disposition,
provided such restrictions and conditions apply only to the Subsidiary that is to be
Disposed of, or (4) contained in joint venture agreements or other similar agreements entered into
in the ordinary course of business in respect to the Disposition or distribution of assets of



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such joint venture, enter into any Contractual Obligation (other than this Agreement or any
other Loan Document, or any related document, instrument or agreement) that (a) limits the ability
(i) of any Subsidiary to make Restricted Payments to the Parent, CDI Vessel or any Guarantor or to
otherwise transfer property to the Parent, CDI Vessel or any Guarantor, (ii) of any Subsidiary to
Guarantee the Indebtedness of the Parent or CDI Vessel or (iii) of the Parent, CDI Vessel or any
Subsidiary to create, incur, assume or permit to exist Liens on its property to secure the
Obligations; provided, however, that this clause (iii) shall not (A) prohibit any
negative pledge incurred or provided in favor of any holder of a Lien permitted by Section
7.01(f), (i), (q), (r), (s) or (t) and secured
Indebtedness permitted under Section 7.03(e), (h), or (n) solely to the
extent any such negative pledge relates to the property financed by or the subject of such
Indebtedness and (B) apply to customary provisions in leases, licenses and similar contracts
restricting the assignment, encumbrance, sub-letting or transfer thereof; or (b) requires the grant
of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation
of such Person.



     7.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.



     7.11 Financial Covenants.



     (a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of the Parent to be less than (a) for each fiscal quarter
ending on or prior to September 30, 2009, 2.50 to 1.00 and (b) thereafter, 2.75 to 1.00.



     (b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end
of any fiscal quarter of the Parent to be greater than 3.75 to 1.00.



     7.12 Capital Expenditures. Commencing January 1, 2008, make or become legally obligated to
make any Capital Expenditure, except for Capital Expenditures in the ordinary course of business
not exceeding, in the aggregate for the Parent, CDI Vessel and the Subsidiaries during each fiscal
year $200,000,000; provided however that so long as no Default has occurred and is
continuing or would result from such expenditure, any portion of any amount set forth above, if not
expended in the fiscal year for which it is permitted above, may be carried over for expenditure in
the next following fiscal year; and provided further that if any such amount is so carried
over, it will be deemed used in the applicable subsequent fiscal year before the $200,000,000
permitted above for such fiscal year.



     7.13 Amendment of Organizational Documents. Amend any of its Organizational Documents other
than any such amendment (a) made solely in connection with a transaction that is otherwise
permitted under this Agreement and (b) that would not reasonably be expected to have a Material
Adverse Effect.



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     7.14 Accounting Changes. Make any change in (a) accounting policies or reporting practices,
except (i) as required or permitted by GAAP or (ii) as the Parent reasonably deems necessary to
comply with any Law, or (b) fiscal year.



     7.15 Prepayments, Etc. of Indebtedness. (a) Make any payment, or prepay, redeem, purchase,
defease or otherwise satisfy or make any unscheduled payment, in each case, prior to the scheduled
maturity thereof in any manner (whether directly or indirectly) any Indebtedness for borrowed
money, other than (i) intercompany Indebtedness, (ii) Indebtedness in connection with a
refinancing, refunding, extension or renewal to the extent such refinancing, refunding, extension
or renewal is permitted by Section 7.03(b), or (e), (iii) Indebtedness under Swap
Contracts permitted by Section 7.03(d), (iv) secured Indebtedness that becomes due as a
result of the Disposition of the property securing such Indebtedness to the extent that such
Disposition is permitted by Section 7.05, and (v) payments in respect of the Obligations;
or (b) make any payment in violation of any subordination terms of any Indebtedness for borrowed
money.



     7.16 Partnerships, Etc. Become a general partner in any general or limited partnership or
joint venture, other than (i) any such interest in any Subsidiary which is, directly or indirectly,
a Wholly Owned Subsidiary of the Parent or (ii) pursuant to an Investment permitted by Section
7.02 (a), or (g).



     7.17 Off-Balance Sheet Liabilities. Create, incur, assume or suffer to exist any Off-Balance
Sheet Liabilities, except to the extent that any lease by the Parent or any of its Subsidiaries of
the Port of Iberia facility following its sale constitutes an Off-Balance Sheet Liability.



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. Any Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or
(ii) within three days after the same becomes due, any interest on any Loan or on any L/C
Obligation, or any fee due hereunder, or (iii) within five days after the same becomes due, any
other amount payable hereunder or under any other Loan Document; or



     (b) Specific Covenants. Any Loan Party fails to perform or observe any term, covenant
or agreement contained in any of Section 6.01, 6.03, 6.05 (with respect to
any Borrower) 6.10, or Article VII; or



     (c) Other Defaults. Any Loan Party 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 unremedied for 30 days after the earlier of
(i) the date on which any Borrower or such Loan Party obtains, or reasonably should have had,
knowledge of such failure and (ii) the date on which any Borrower or such Loan Party receives
notice thereof from the Administrative Agent; or



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     (d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of any Borrower or any other Loan Party
herein, in any other Loan Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any material respect when made or deemed made; or



     (e) Cross-Default. (i) Any Borrower or any Subsidiary (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness
under Swap Contracts) having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or contained in 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 Guarantee (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or 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 such Guarantee to become
payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap
Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event
of default under such Swap Contract as to which any Borrower or any Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such
Swap Contract as to which any Borrower or any Subsidiary is an Affected Party (as so defined) and,
in either event, the Swap Termination Value owed by such Borrower or such Subsidiary as a result
thereof is greater than the Threshold Amount; or



     (f) Insolvency Proceedings, Etc. (i) Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of 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 (ii) 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 (iii) 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



     (g) Inability to Pay Debts; Attachment. (i) Any 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 all or any material part of the property of any such Person and is not released, vacated or
fully bonded within 30 days after its issue or levy; or



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     (h) Judgments. There is entered against any Borrower or any Subsidiary one or more
final judgments or orders for the payment of money in an aggregate amount (as to all such judgments
or orders) exceeding the Threshold Amount (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), and (i) enforcement proceedings are
commenced by any creditor upon such judgment or order, or (ii) 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. (i) An ERISA Event occurs that, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to subject any Borrower or any Subsidiary
to liability individually or in the aggregate in excess of the Threshold Amount, or (ii) any
Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability under Section 4201 of
ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or



     (j) Invalidity of Loan Documents. Any Loan Document, at any time after its execution
and delivery and for any reason other than as expressly permitted hereunder or thereunder or
satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan
Party or any other Person contests in any manner the validity or enforceability of any Loan
Document; or any Loan Party denies that it has any or further liability or obligation under any
Loan Document, or purports to revoke, terminate or rescind any Loan Document; or



     (k) Change of Control. There occurs any Change of Control.



     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 or all of the following actions:



     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuers
to make L/C Credit Extensions 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 each Borrower;



     (c) require that the Borrowers Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and



     (d) exercise on behalf of itself, the Lenders and the L/C Issuers all rights and remedies
available to it, the Lenders and the L/C Issuers under the Loan Documents;


provided, however, that upon the occurrence of an Event of Default under Section
8.01(f), the obligation of each Lender to make Loans and any obligation of the L/C Issuers to make
L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically become due and





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payable, and the obligation of the Borrowers to Cash Collateralize the L/C Obligations as aforesaid
shall automatically become effective, in each case without further act of the Administrative Agent
or any Lender.




     8.03 Application of Funds. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and payable and
the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the
proviso to Section 8.02), 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 fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest, commitment fees and Letter of Credit Fees)
payable to the Lenders (other than in their capacities as Hedge Banks) and the L/C Issuers
(including fees, charges and disbursements of counsel to the respective Lenders and L/C Issuers and
amounts payable under Article III), ratably among them in proportion to the respective
amounts described in this clause Second payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees, commitment fees and interest on the Loans, L/C Borrowings and other
Obligations, ratably among the Lenders (other than in their capacities as Hedge Banks) and the L/C
Issuers 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, L/C Borrowings and Obligations with respect to Secured Hedge Agreements, ratably among
the Lenders, the L/C Issuers and the Hedge Banks in proportion to the respective amounts described
in this clause Fourth held by them;



     Fifth, to the Administrative Agent for the account of the L/C Issuers, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit, ratably among the L/C Issuers in proportion to the respective amounts described in this
clause Fifth held by them;



     Sixth, to payment of Obligations with respect to Secured Cash Management Agreements,
ratably among the Cash Management Banks in proportion to the respective amounts described in this
clause Sixth held by them; and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrowers or as otherwise required by Law.


Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral
after all





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Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.




ARTICLE IX




ADMINISTRATIVE AGENT




     9.01 Appointment and Authority.



          (a) Each of the Lenders and the L/C Issuers hereby irrevocably appoints Bank of America to act
on its behalf as the Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and neither any
Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such
provisions, other than the consultation rights expressly afforded the Borrowers in Section
9.06.




          (b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if
applicable), potential Hedge Bank and potential Cash Management Bank) and the L/C Issuers hereby
irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and
such L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Loan Parties to secure any of the Obligations, together with such powers and
discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as
“collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the
Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien
on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising
any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled
to the benefits of all provisions of this Article IX and Article X (including
Section 10.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the
“collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.




     9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with any Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.



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     9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:



     (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and



     (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
any Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or
(ii) in the absence of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by a Borrower, a Lender or the applicable L/C Issuer.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



     9.04 Reliance by Administrative Agent.



     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise



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authenticated by the proper Person. The Administrative Agent also may rely upon any statement
made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be
fulfilled to the satisfaction of a Lender or an L/C Issuer, the Administrative Agent may presume
that such condition is satisfactory to such Lender or such L/C Issuer unless the Administrative
Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the
making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult
with legal counsel (who may be counsel for either Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.



     9.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or through any one or
more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and powers by or through
their respective Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.



     9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuers and the Borrowers. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, in consultation with the
Borrowers, to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuers, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrowers and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuers under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the applicable L/C Issuer directly, until such time
as the Required Lenders appoint a successor Administrative Agent as provided for above in this
Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees payable by the
Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor
unless



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otherwise agreed among the Borrowers and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 10.04 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the
successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and each L/C Issuer
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender and each L/C Issuer also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.



     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Book
Managers, Arrangers or Syndication or Documentation Agents, if any, listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an L/C
Issuer hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation 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 any Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations 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, the L/C Issuers and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers



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and the Administrative Agent and their respective agents and counsel and all other amounts due
the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.03(i) and
(j), 2.10 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 and each L/C Issuer 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 and the L/C Issuers, 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 2.10 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 or any L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any
L/C Issuer or to authorize the Administrative Agent to vote in respect of the claim of any Lender
of the L/C Issuer in any such proceeding.



     9.10 Collateral and Guaranty Matters. The Lenders and the L/C Issuers irrevocably authorize
the Administrative Agent, at its option and in its discretion,



     (a) to release any Lien on any property granted to or held by the Administrative Agent under
any Loan Document (i) upon termination of the Aggregate Commitments, payment in full of all
Obligations (other than contingent indemnification Obligations and any Obligations under any
Secured Cash Management Agreement or Secured Hedge Agreement which are not then due and payable),
and expiration or termination of all Letters of Credit, (ii) that is Disposed of or to be Disposed
of as part of or in connection with any Disposition permitted hereunder or under any other Loan
Document or (iii) subject to Section 10.01, if approved, authorized or ratified in writing
by the Required Lenders;



     (b) to subordinate any Lien on any property granted to or held by the Administrative Agent
under any Loan Document to the holder of any Lien on such property that is permitted by
Section 7.01(i);



     (c) to release any Guarantor from its obligations under the Loan Documents if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder; and



     (d) to release any Liens, or to release any Guarantor from its obligations under the Loan
Documents, in each case in accordance with Section 10.17.



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of property, or to release any Guarantor from its obligations under the applicable
Loan Documents pursuant to this Section 9.10.



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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 any Borrower or any other Loan Party therefrom,
shall be effective unless in writing signed by the Required Lenders and the Borrowers or the
applicable Loan Party, 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, however, that no such amendment, waiver or
consent shall:



     (a) waive any condition set forth in Section 4.01 or, in the case of the initial
Credit Extension, Section 4.02, without the written consent of each Lender, or amend,
modify or waive any condition precedent set forth in Section 4.02 to any Credit Extension
under the Revolving Credit Facility (including, without limitation, the waiver of an existing
Default or Event of Default required to be waived in order for such Credit Extension to be made)
without the consent of the Required Revolving Credit Lenders;



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of
them) hereunder or under any other Loan Document without the written consent of each Lender
entitled to such payment;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (v) of the proviso immediately following clause (i) of this
Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender entitled to such amount; provided,
however, that only the consent of the Required Lenders shall be necessary (i) to amend the
definition of “Default Rate” or (ii) to amend any financial covenant hereunder (or any defined term
used therein) even if the effect of such amendment would be to reduce the rate of interest on any
Loan or L/C Borrowing or to reduce any fee payable hereunder; and provided,
further, that only the consent of the Required Revolving Credit Lenders or Required Term
Lenders, as the case may be, shall be necessary to waive any obligation of the Borrowers to pay
interest or Letter of Credit Fees at the Default Rate with respect to Loans or Letters of Credit
under the applicable Facility;



     (e) change (i) Section 2.14 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of each Lender or (ii)
the order of application of any reduction in the Commitments or any prepayment of Loans among the
Facilities from the application thereof set forth in the applicable provisions of Section
2.06(d) in any manner that materially and adversely affects the Lenders under a Facility
without the written consent of (x) if such Facility is the Term Facility, the Required Term
Lenders, and (y) if such Facility is the Revolving Credit Facility, the Required Revolving Credit
Lenders;



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     (f) change any provision of this Section or the definition of “Required Lenders,” “Required
Revolving Credit Lenders,” “Required Term Lenders” or any other provision hereof specifying the
number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder
or make any determination or grant any consent hereunder without the written consent of each Lender
under the applicable Facility;



     (g) release all or substantially all of the Collateral (other than as permitted by the Loan
Documents) in any transaction or series of related transactions, without the written consent of
each Lender;



     (h) release all or substantially all of the value of any Guaranty (other than as permitted by
the Loan Documents) without the written consent of each Lender;



     (i) impose any greater restriction on the ability of any Lender under a Facility to assign any
of its rights or obligations hereunder without the written consent of (i) if such Facility is the
Term Facility, the Required Term Lenders and (ii) if such Facility is the Revolving Credit
Facility, the Required Revolving Credit Lenders;


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the applicable L/C Issuer in addition to the Lenders required above, affect
the rights or duties of such L/C Issuer under this Agreement or any Issuer Document relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless
in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect
the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document; (iv) Section 10.06(h) may not be amended, waived or otherwise modified
without the consent of each Granting Lender all or any part of whose Loans are being funded by an
SPC at the time of such amendment, waiver or other modification; and (v) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only by the parties
thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any
right to approve or disapprove any amendment, waiver or consent hereunder or any other Loan
Document, nor shall a Defaulting Lender’s vote or status as a Lender be required in determining
majority, unanimity or other condition or effect of any vote, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender.




     If any Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender and that has been approved by
the Required Lenders, the Borrowers may replace such non-consenting Lender in accordance with
Section 10.13; provided that such amendment, waiver, consent or release can be
effected as a result of the assignment contemplated by such Section (together with all other such
assignments required by the Borrowers to be made pursuant to this paragraph).



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     10.02 Notices; Effectiveness; Electronic Communication.



     (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier or
other electronic transmission as follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable telephone number, as
follows:




     (i) if to a Borrower, the Administrative Agent, an L/C Issuer or the Swing Line Lender,
to the address, telecopier number, electronic mail address or telephone number specified for
such Person on Schedule 10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).




     (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuers hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or any L/C Issuer
pursuant to Article II if such Lender or such L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or any Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to particular
notices or communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



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     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to any Borrower, any
Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of any Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to any Borrower, any Lender, any L/C Issuer or any other Person for
indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual
damages).



     (d) Change of Address, Etc. Each of the Borrowers, the Administrative Agent, each L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the Borrowers, the Administrative Agent, each other L/C Issuer and the Swing Line
Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to
ensure that the Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each
Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at
all times have selected the “Private Side Information” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable Law, including United
States Federal and state securities Laws, to make reference to Borrower Materials that are not made
available through the “Public Side Information” portion of the Platform and that may contain
material non-public information with respect to any Borrower or its securities for purposes of
United States Federal or state securities Laws.



     (e) Reliance by Administrative Agent, L/C Issuers and Lenders. The Administrative
Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf
of a Borrower even if (i) such notices were not made in a manner specified herein, were incomplete
or were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The Borrowers shall
indemnify the Administrative Agent, each L/C Issuer, each Lender and the Related Parties of each of
them from all losses, costs, expenses and liabilities resulting from the



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reliance by such Person on each notice purportedly given by or on behalf of a Borrower. All
telephonic notices to and other telephonic communications with the Administrative Agent made
pursuant to this Agreement 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, any L/C Issuer 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 provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.



     10.04 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Parent shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by any L/C Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, any Lender or any L/C Issuer (including the fees, charges and
disbursements of any counsel for the Administrative Agent, any Lender or any L/C Issuer) in
connection with the enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in connection with
the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.



     (b) INDEMNIFICATION BY THE BORROWERS. EACH OF THE BORROWERS SHALL INDEMNIFY THE
ADMINISTRATIVE AGENT (AND ANY SUB-AGENT THEREOF), EACH LENDER AND EACH L/C ISSUER, AND EACH RELATED
PARTY OF ANY OF THE FOREGOING PERSONS (EACH SUCH PERSON BEING CALLED AN “INDEMNITEE”) AGAINST, AND
HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED
EXPENSES (INCLUDING THE REASONABLE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR ANY
INDEMNITEE) INCURRED BY ANY INDEMNITEE OR ASSERTED AGAINST ANY INDEMNITEE BY ANY THIRD PARTY OR BY
EITHER BORROWER OR ANY OTHER LOAN PARTY ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF
(I) THE EXECUTION OR DELIVERY OF THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR
INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR
RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER, THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, INCLUDING THE



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TRANSACTION, OR, IN THE CASE OF THE ADMINISTRATIVE AGENT (AND ANY SUB-AGENT THEREOF) AND ITS
RELATED PARTIES ONLY, THE ADMINISTRATION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, (II) ANY
LOAN OR LETTER OF CREDIT OR THE USE OR PROPOSED USE OF THE PROCEEDS THEREFROM (INCLUDING ANY
REFUSAL BY A L/C ISSUER TO HONOR A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF THE DOCUMENTS
PRESENTED IN CONNECTION WITH SUCH DEMAND DO NOT STRICTLY COMPLY WITH THE TERMS OF SUCH LETTER OF
CREDIT), (III) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY
PROPERTY OWNED OR OPERATED BY ANY BORROWER OR ANY OF ITS SUBSIDIARIES, OR ANY ENVIRONMENTAL
LIABILITY RELATED IN ANY WAY TO ANY BORROWER OR ANY OF ITS SUBSIDIARIES, OR (IV) ANY ACTUAL OR
PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING,
WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY, WHETHER BROUGHT BY A THIRD PARTY OR BY ANY
BORROWER OR ANY OTHER LOAN PARTY, AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO, IN
ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE,
CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO
ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR
RELATED EXPENSES (X) 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
(Y) RESULT FROM A CLAIM BROUGHT BY ANY BORROWER OR ANY OTHER LOAN PARTY AGAINST AN INDEMNITEE FOR
BREACH IN BAD FAITH OF SUCH INDEMNITEE’S OBLIGATIONS HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT, IF
SUCH BORROWER OR SUCH LOAN PARTY HAS OBTAINED A FINAL AND NONAPPEALABLE JUDGMENT IN ITS FAVOR ON
SUCH CLAIM AS DETERMINED BY A COURT OF COMPETENT JURISDICTION.



     (c) Reimbursement by Lenders. To the extent that any Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), any L/C Issuer or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), such L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or such L/C Issuer in its capacity as
such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or
any such sub-agent) or such L/C Issuer in connection with such capacity. The obligations of the
Lenders under this subsection (c) are subject to the provisions of Section 2.13(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, neither Borrower shall assert, and each hereby waives, any claim against any



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Indemnitee, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed to such unintended recipients by such Indemnitee through telecommunications, electronic
or other information transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for direct or actual
damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined
by a final and nonappealable judgment of a court of competent jurisdiction.



     (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the L/C Issuers and the Swing Line Lender, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of any Borrower is
made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent, any
L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such
setoff 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, such L/C Issuer 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 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 setoff had not occurred, and (b) each Lender and each L/C Issuer severally agrees to
pay to the Administrative Agent upon demand its applicable share (without duplication) 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. The obligations of the Lenders and the L/C Issuers under clause
(b) of the preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.



     10.06 Successors and Assigns.



     (a) Successors and Assigns Generally. 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 neither Borrower may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of
this Section, (iii) by way of pledge or assignment of a security interest subject to the
restrictions



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of subsection (f) of this Section, or (iv) to an SPC in accordance with the provisions of
subsection (h) of this Section (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the
extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the
L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.



     (b) Assignments by Lenders. 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 the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that
any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment under any Facility and the Loans at the time owing to
it under such Facility, no minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the outstanding
principal 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, in the case of any assignment in respect of the Revolving Credit
Facility, and $1,000,000, in the case of any assignment in respect of the Term
Facility, in each case, unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Parent, otherwise consents
(each such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single assignee (or to
an Eligible Assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been met;




     (ii) Proportionate Amounts. 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, except that this
clause (ii) shall not (A) apply to the Swing Line Lender’s rights and obligations in respect
of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights
and obligations among separate Facilities on a non-pro rata basis;



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     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:




     (A) the consent of the Parent (such consent not to be unreasonably withheld or
delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
(i) any Term Commitment or Revolving Credit Commitment if such assignment is to a
Person that is not a Lender with a Commitment in respect of the applicable Facility,
an Affiliate of such Lender or an Approved Fund with respect to such Lender or (ii)
any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an
Approved Fund;




     (C) the consent of the L/C Issuers (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Letters of
Credit (whether or not then outstanding); and




     (D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required by any assignment of any Revolving Credit
Commitment.




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. For the avoidance of doubt, no part of
any such processing and recordation fee shall be payable by or otherwise for the account of
any Loan Party, directly or indirectly. The Eligible Assignee, if it is not a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to any
Borrower or any Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement 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




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cease to be a party hereto) but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances
occurring prior to the effective date of such assignment. Upon request, each Borrower (at its
expense) shall execute and deliver a Note to the assignee Lender. The assignor shall, if its
entire Commitment was assigned, return each cancelled original Note of such assignor to the
applicable Borrower following a request therefor. Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with subsection (d) of this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers, 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 and L/C Obligations 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 Borrowers, 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 Borrowers and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural
person, a competitor of any Borrower (as defined below), or any Borrower or any 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 (including such Lender’s participations in L/C Obligations and/or Swing Line 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 Borrowers, the Administrative Agent, the Lenders and the L/C Issuers
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. As used above, a “competitor” of a Borrower shall mean any
Person principally engaged in the business of providing contracting services to others with respect
to oil and/or gas exploration and production. Each Borrower shall, upon request of any Lender,
advise such Lender as to whether such Borrower considers a proposed Participant to be a competitor.
Any such determination shall be made by such Borrower promptly and in good faith.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this Section,
the Borrowers agree 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. To the extent permitted by
law, each Participant also



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shall be entitled to the benefits of Section 10.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.14 as though it were a
Lender.



     (e) Limitations upon Participant Rights. 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 Parent’s prior written
consent, which consent shall constitute the express waiver by the Borrowers of the foregoing
limitation. 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 Parent is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 3.01(e) as though it were a Lender.



     (f) Certain Pledges. 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 such Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto, and all costs, fees and expenses related to any such pledge, including the release thereof,
shall be for the sole account of such Lender (without, for the avoidance of doubt, direct or
indirect reimbursement from any Loan Party).



     (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     (h) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding
vehicle of such Granting Lender identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Parent (an “SPC”) the option to provide all or
any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to
this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund
any Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or
any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the
terms hereof or, if it fails to do so, to make such payment to the Administrative Agent as is
required under Section 2.13(b)(ii). Each party hereto hereby agrees that (i) neither the
grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or
otherwise increase or change the obligations of the Borrowers under this Agreement (including its
obligations under Section 3.04), (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be liable, and (iii) the Granting
Lender shall for all purposes, including the approval of any amendment, waiver or other
modification of any provision of any Loan Document, remain the lender of record



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hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior debt of any SPC, it will not
institute against, or join any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United
States or any State thereof. Notwithstanding anything to the contrary contained in this
Section 10.06, any SPC may (i) with notice to, but without prior consent of the Parent and
the Administrative Agent and with the payment of a processing fee in the amount of $3,500 (which
processing fee may be waived by the Administrative Agent in its sole discretion), assign all or any
portion of its right to receive payment with respect to any Loan to its Granting Lender and
(ii) disclose on a confidential basis as provided herein any non-public information relating to its
funding of Loans to any rating agency, commercial paper dealer or provider of any surety or
Guarantee or credit or liquidity enhancement to such SPC.



     (i) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) of this Section, Bank of America may, (i) upon 30
days’ notice to the Parent and the Lenders, resign as an L/C Issuer and/or (ii) upon 30 days’
notice to the Parent, resign as Swing Line Lender. In the event of any such resignation as an L/C
Issuer or Swing Line Lender, the Parent shall be entitled to appoint from among the Lenders a
successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the
Parent to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer
or Swing Line Lender, as the case may be. If Bank of America resigns as an L/C Issuer, it shall
retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to
all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all
L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If
Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line
Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders to make Base Rate
Loans or fund risk participations in outstanding Swing Line Loans pursuant to
Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender,
(a) such successor shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the
successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if
any, issued by Bank of America outstanding at the time of such succession or make other
arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of
America with respect to such Letters of Credit.



Additionally, if at any time any other Lender serving as an L/C Issuer hereunder assigns all of its
Commitment and Revolving Credit Loans pursuant to subsection (b) of this Section, such Lender
shall, upon 30 days’ notice to the Administrative Agent and the Parent, resign as L/C Issuer. In
the event of any such resignation as L/C Issuer, the Parent shall be entitled to appoint from among
the Lenders a successor L/C Issuer; provided, however, that no failure by the Parent to appoint any
such successor shall affect the resignation of such Lender as L/C Issuer. If such



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Lender resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of an
L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of
its resignation as an L/C Issuer and all L/C Obligations with respect thereto (including the right
to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts
pursuant to Section 2.03(c)). Upon the appointment of a successor L/C Issuer, (a) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring L/C Issuer, and (b) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, issued by such retiring L/C Issuer and outstanding
at the time of such succession or make other arrangements satisfactory to such retiring L/C Issuer
to effectively assume the obligations of such retiring L/C Issuer with respect to such Letters of
Credit.



     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent,
the Lenders and the L/C Issuers agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process (and in each such case, such Person shall, if permitted by law,
notify the Parent of such occurrence as soon as reasonably practicable following the service of any
such process on such Person), (d)  to any other party hereto, (e) in connection with the exercise
of any remedies hereunder or under any other Loan Document or any action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as those of this Section,
to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender
pursuant to Section 2.15(c), (ii) any pledgee referred to in Section 10.06(f), or
(iii) any actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to any Borrower and its obligations, (g) with the consent of the applicable
Borrower or (h) to the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the Administrative Agent, any
Lender, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a
source other than the Borrowers.



     For purposes of this Section, “Information” means all information received from any
Borrower or any Subsidiary relating to the Borrowers or any Subsidiary, or any Affiliate of any of
them, or any of their respective businesses, other than any such information that is available to
the Administrative Agent, any Lender or any L/C Issuer on a nonconfidential basis prior to
disclosure by any Borrower or any Subsidiary, provided that, in the case of information
received from any Borrower or any Subsidiary after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



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     Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the
Information may include material non-public information concerning any Borrower or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including United States Federal and state securities Laws.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by applicable law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final, in whatever currency)
at any time held and other obligations (in whatever currency) at any time owing by such Lender,
such L/C Issuer or any such Affiliate to or for the credit or the account of any Borrower against
any and all of the obligations of the Borrowers now or hereafter existing under this Agreement or
any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such
Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan
Document and although such obligations of the Borrowers may be contingent or unmatured or are owed
to a branch or office of such Lender or such L/C Issuer different from the branch or office holding
such deposit or obligated on such indebtedness. The rights of each Lender, each L/C Issuer and
their respective Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates
may have. Each Lender and the L/C Issuer agrees to notify the Borrowers and the Administrative
Agent promptly after any such setoff and application, provided that the failure to give
such notice shall not affect the validity of such setoff and application.



     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest (including amounts not so denominated but deemed to be “interest” under
applicable law) charged, paid, collected, taken, reserved, or agreed to be paid under any Loan
Document shall not exceed the maximum amount or maximum rate of non-usurious interest permitted to
be contracted for, charged, collected, reserved, taken or received by applicable Law (the
“Maximum Amount and the “Maximum Rate”, as the case may be). If the Administrative
Agent, any L/C Issuer or any Lender shall contract for, charge, collect, reserve, take or receive
such interest in an amount that exceeds the Maximum Amount or calculated at 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 Borrowers, and in no event shall any Person ever be liable for the
payment of unearned interest on, or in respect or as a part of, the Obligations. In determining
whether the interest contracted for, charged, collected, reserved, taken or received exceeds the
Maximum Amount or an amount calculated at 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.



     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.



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This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or electronic transmission
shall be effective as delivery of an original manually executed counterpart of this Agreement.




     10.11 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.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.



     10.12 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.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04
or gives a notice pursuant to Section 3.02 (which notice is not given by other similarly
situated Lenders) and does not subsequently designate a different Lending Office or assign its
rights and obligations hereunder to another of its offices, branches or affiliates as provided in
Section 3.06(a), or if any Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, if
any Lender is a Defaulting Lender, or if any other circumstance exists hereunder that gives the
Parent the right to replace a Lender as a party hereto then the Parent may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 10.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided that:



     (a) the Parent shall have paid to the Administrative Agent the assignment fee specified in
Section 10.06(b);



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     (b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or
the applicable Borrower or Borrowers (in the case of all other amounts);



     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04, a notice pursuant to Section 3.02 (which notice is not given by other
similarly situated Lenders) not followed by the designation of a different Lending Office or
assignment to another office, branch or affiliate as provided in Section 3.06(a), or
payments required to be made pursuant to Section 3.01, such assignment will result in a
reduction in such compensation or payments thereafter; and



     (d) such assignment does not conflict with applicable Laws.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Parent to require
such assignment and delegation cease to apply.



     10.14 Governing Law; Jurisdiction; Etc.



     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK SITTING IN NEW YORK CITY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY LEGAL ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST EITHER OF THE
BORROWERS OR ANY OF THEIR PROPERTIES IN THE COURTS OF ANY JURISDICTION.



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     (c) WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each Borrower acknowledges and agrees that:
(i)(A) the arranging and other services regarding this Agreement provided by the Administrative
Agent and the Arranger, are arm’s-length commercial transactions between the Borrowers and their
respective Affiliates, on the one hand, and the Administrative Agent and the Arranger, on the other
hand, (B) each Borrower has consulted its own legal, accounting, regulatory and tax advisors to the
extent it has deemed appropriate, and (C) each Borrower is capable of evaluating, and understands
and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the
other Loan Documents; (ii)(A) the Administrative Agent and the Arranger each is and has been acting
solely as a principal and, except as expressly agreed in writing by the relevant parties, has not
been, is not, and will not be acting as an advisor, agent or fiduciary for either Borrower or any
of their respective Affiliates or any other Person and (B) neither the Administrative Agent nor the
Arranger has any obligation to either Borrower or any of their respective Affiliates with respect
to the transactions contemplated hereby except those obligations expressly set forth herein and in
the other Loan Documents; and



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(iii) the Administrative Agent and the Arranger and their respective Affiliates may be engaged
in a broad range of transactions that involve interests that differ from those of either Borrower
and their respective Affiliates, and neither the Administrative Agent nor the Arranger has any
obligation to disclose any of such interests to either Borrower or any of their respective
Affiliates. To the fullest extent permitted by law, each Borrower hereby waives and releases any
claims that it may have against the Administrative Agent and the Arranger with respect to any
breach or alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.




     10.17 Collateral and Guaranty Matters.



     (a) Liens granted to or held by the Administrative Agent under any Loan Document shall be
released as follows: (i) with respect to all such Liens, upon termination of the Aggregate
Commitments, payment in full of all Obligations (other than contingent indemnification Obligations
and any Obligations under any Secured Cash Management Agreement or Secured Hedge Agreement which
are not then due and payable), and expiration or termination of all Letters of Credit; (ii) with
respect to any Lien on property that is Disposed of or to be Disposed of as part of or in
connection with any Disposition permitted hereunder or under any other Loan Document, automatically
upon such Disposition thereof; and (iii) with respect to any other Lien, and subject to
Section 10.01, upon approval, authorization or ratification in writing by the Required
Lenders of such release thereof.



     (b) Guarantors shall be released from their respective Obligations under the Loan Documents as
follows: (i) with respect to all Guarantors, upon termination of the Aggregate Commitments,
payment in full of all Obligations (other than contingent indemnification Obligations and any
Obligations under any Secured Cash Management Agreement or Secured Hedge Agreement which are not
then due and payable), and expiration or termination of all Letters of Credit (provided
that the foregoing release shall not apply to any obligations that expressly survive the
termination of the applicable Loan Document, repayment of the Obligations or termination of the
Aggregate Commitments); (ii) with respect to any Person that ceases to be a Subsidiary as a result
of a transaction permitted hereunder, automatically upon such Person so ceasing to be a Subsidiary,
and (iii) with respect to any other release of a Guarantor, and subject to Section 10.01,
upon approval, authorization or ratification in writing by the Required Lenders of such release
thereof.



     (c) The Administrative Agent will, at the Borrowers’ expense, timely execute and deliver such
documents and notices and take such other actions as the Borrowers may reasonably request to
evidence the release of any Lien or Guarantor in accordance with this Section 10.17.



     10.18 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined)
and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the
Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies each Borrower, which information includes the name and address
of such Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify such Borrower in accordance with the Act.




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



#17760.14




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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	CDI VESSEL HOLDINGS LLC

 	 
	 	By:  	 	 
	 	 	G. Kregg Lunsford 	 
	 	 	Vice President and Treasurer 	 
	 



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	 	CAL DIVE INTERNATIONAL, INC.

 	 
	 	By:  	 	 
	 	 	G. Kregg Lunsford 	 
	 	 	Executive Vice President, Chief Financial

Officer and Treasurer 	 
	 


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

 	 
	 	By:  	 	 
	 	 	Michael Brashler 	 
	 	 	Vice President 	 
	 



Signature
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	 	BANK OF AMERICA, N.A., as Lender, L/C

Issuer and Swing Line Lender

 	 
	 	By:  	 	 
	 	 	David A. Batson 	 
	 	 	Senior Vice President 	 
	 



Signature
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	 	 	DNB NOR BANK ASA, as Co-Documentation
	 	 	Agent and Lender
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 




Signature
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	 	 	THE BANK OF NOVA SCOTIA, as Co-
	 	 	Documentation Agent and Lender
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 




Signature
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	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION,
	 	 	as Co-Documentation
Agent and Lender
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 




Signature
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	 	 	[LENDERS]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





Signature
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