Exhibit
10.2




 





 


Published CUSIP Number:                  


 


LETTER OF CREDIT FACILITY
AGREEMENT


 


Dated as of July 29,
2008


 


among


 


GT SOLAR INTERNATIONAL, INC.,


as the Borrower,


 


BANK OF AMERICA, N.A.,


as Administrative Agent and L/C Issuer,


 


and


 


THE OTHER LENDERS PARTY
HERETO


 


Arranged By:


 


BANC OF AMERICA SECURITIES
LLC,


 


as Sole Lead Arranger and Book Manager




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE
  I  DEFINITIONS AND ACCOUNTING TERMS

  	
  1

  
	
  1.01

  	
  Defined Terms

  	
  1

  
	
  1.02

  	
  Other Interpretive Provisions

  	
  11

  
	
  1.03

  	
  Accounting Terms

  	
  12

  
	
  1.04

  	
  [Reserved]

  	
  12

  
	
  1.05

  	
  Determination of Delivery or Due Dates and Times of Day

  	
  12

  
	
  1.06

  	
  Letter of Credit Amounts

  	
  13

  
	
  ARTICLE
  II  THE COMMITMENTS AND CREDIT
  EXTENSIONS

  	
  13

  
	
  2.01

  	
  Letters of Credit

  	
  13

  
	
  2.03

  	
  Termination or Reduction of Aggregate Revolving Commitments

  	
  21

  
	
  2.04

  	
  Interest

  	
  21

  
	
  2.05

  	
  Computation of Interest and Fees

  	
  21

  
	
  2.06

  	
  Evidence of Debt

  	
  21

  
	
  2.07

  	
  Payments Generally; Administrative Agent’s Clawback

  	
  22

  
	
  2.08

  	
  Sharing of Payments by Lenders

  	
  22

  
	
  2.09

  	
  Extension of Stated Maturity Date

  	
  23

  
	
  ARTICLE
  III  TAXES, YIELD PROTECTION AND
  ILLEGALITY

  	
  24

  
	
  3.01

  	
  Taxes

  	
  24

  
	
  3.02

  	
  [Reserved]

  	
  26

  
	
  3.03

  	
  [Reserved]

  	
  26

  
	
  3.04

  	
  Increased Costs

  	
  26

  
	
  3.05

  	
  Mitigation Obligations; Replacement of Lenders

  	
  28

  
	
  3.06

  	
  Survival

  	
  28

  
	
  ARTICLE
  IV  GUARANTY

  	
  28

  
	
  [RESERVED]

  	
  28

  
	
  ARTICLE
  V  CONDITIONS PRECEDENT TO CREDIT
  EXTENSIONS

  	
  28

  
	
  5.01

  	
  Conditions of Effectiveness

  	
  28

  
	
  5.02

  	
  Conditions to all L/C Credit Extensions

  	
  29

  
	
  ARTICLE VI  REPRESENTATIONS AND WARRANTIES

  	
  31

  
	
  6.01

  	
  Existence, Qualification and Power

  	
  31

  
	
  6.02

  	
  Authorization; No Contravention

  	
  31

  
	
  6.03

  	
  Governmental Authorization; Other Consents

  	
  31

  
	
  6.04

  	
  Binding Effect

  	
  31

  
	
  6.05

  	
  Financial Statements; No Material Adverse Effect

  	
  31

  
	
  6.06

  	
  Litigation

  	
  32

  
	
  6.07

  	
  No Default

  	
  32

  
	
  6.08

  	
  Margin Regulations; Investment Company Act

  	
  32

  
	
  6.09

  	
  Disclosure

  	
  32

  
	
  ARTICLE
  VII  AFFIRMATIVE COVENANTS

  	
  33

  
	
  7.01

  	
  Financial Statements

  	
  33

  
	
  7.02

  	
  Certificates; Other Information

  	
  34

  
	
  7.03

  	
  Notices

  	
  35

  
	
  7.04

  	
  Payment of Taxes

  	
  35

  
	
  7.05

  	
  Preservation of Existence

  	
  35

  



 

















 


	
  7.06

  	
  Maintenance of Properties

  	
  36

  
	
  7.07

  	
  Maintenance of Insurance

  	
  36

  
	
  7.08

  	
  Compliance with Laws

  	
  36

  
	
  7.09

  	
  Books and Records

  	
  36

  
	
  7.10

  	
  Use of Proceeds

  	
  36

  
	
  ARTICLE
  VIII  NEGATIVE COVENANTS

  	
  37

  
	
  8.01

  	
  Liens on Cash Collateral

  	
  37

  
	
  8.02

  	
  Fundamental Changes

  	
  37

  
	
  8.03

  	
  Dispositions

  	
  37

  
	
  8.04

  	
  Change in Nature of Business

  	
  37

  
	
  8.05

  	
  Use of Proceeds

  	
  37

  
	
  ARTICLE
  IX  EVENTS OF DEFAULT AND REMEDIES

  	
  37

  
	
  9.01

  	
  Events of Default

  	
  37

  
	
  9.02

  	
  Remedies Upon Event of Default

  	
  39

  
	
  9.03

  	
  Application of Funds

  	
  40

  
	
  ARTICLE
  X  ADMINISTRATIVE AGENT

  	
  41

  
	
  10.01

  	
  Appointment and Authority

  	
  41

  
	
  10.02

  	
  Rights as a Lender

  	
  41

  
	
  10.03

  	
  Exculpatory Provisions

  	
  41

  
	
  10.04

  	
  Reliance by Administrative Agent

  	
  42

  
	
  10.05

  	
  Delegation of Duties

  	
  42

  
	
  10.06

  	
  Resignation of Administrative Agent

  	
  43

  
	
  10.07

  	
  Non-Reliance on Administrative Agent and Other Lenders

  	
  44

  
	
  10.08

  	
  No Other Duties; Etc.

  	
  44

  
	
  10.09

  	
  Administrative Agent May File Proofs of Claim

  	
  44

  
	
  10.10

  	
  Collateral Matters

  	
  45

  
	
  10.11

  	
  Intercreditor Agreement

  	
  45

  
	
  ARTICLE
  XI  MISCELLANEOUS

  	
  45

  
	
  11.01

  	
  Amendments, Etc.

  	
  45

  
	
  11.02

  	
  Notices; Effectiveness; Electronic Communications

  	
  47

  
	
  11.03

  	
  No Waiver; Cumulative Remedies; Enforcement

  	
  48

  
	
  11.04

  	
  Expenses; Indemnity; and Damage Waiver

  	
  49

  
	
  11.05

  	
  Payments Set Aside

  	
  50

  
	
  11.06

  	
  Successors and Assigns

  	
  51

  
	
  11.07

  	
  Treatment of Certain Information; Confidentiality

  	
  54

  
	
  11.08

  	
  Set-off

  	
  55

  
	
  11.09

  	
  Interest Rate Limitation

  	
  55

  
	
  11.10

  	
  Counterparts; Integration; Effectiveness

  	
  55

  
	
  11.11

  	
  Survival of Representations and Warranties

  	
  56

  
	
  11.12

  	
  Severability

  	
  56

  
	
  11.13

  	
  Replacement of Lenders

  	
  56

  
	
  11.14

  	
  Governing Law; Jurisdiction; Etc.

  	
  57

  
	
  11.15

  	
  Waiver of Right to Trial by Jury

  	
  58

  
	
  11.16

  	
  No Advisory or Fiduciary Responsibility

  	
  58

  
	
  11.17

  	
  Electronic Execution of Assignments and Certain Other Documents

  	
  58

  
	
  11.18

  	
  USA PATRIOT Act

  	
  59

  



 

















 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  Customary
  Fee of L/C Issuer

  	
   

  
	
  2.01

  	
  Commitments
  and Applicable Percentages

  	
   

  
	
  11.02

  	
  Certain
  Addresses for Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  5.02

  	
  Form of
  Security Agreement

  	
   

  
	
  11.06-1

  	
  Form of
  Assignment and Assumption

  	
   

  
	
  11.06-2

  	
  Form of
  Administrative Questionnaire

  	
   

  



 

















 


LETTER OF CREDIT FACILITY
AGREEMENT


 


This
LETTER OF CREDIT FACILITY AGREEMENT is entered into as of July 29, 2008
among GT SOLAR INTERNATIONAL, INC., a Delaware corporation (the “Borrower”),
the Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative Agent
and L/C Issuer.


 


The
Borrower has requested that the Lenders provide a $150 million cash secured
letter of credit facility for the purposes set forth herein, 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:


 


“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 11.02 or such other
address or account as the Administrative Agent may from time to time notify to
the Borrower and the Lenders.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in substantially the
form of Exhibit 11.06-2 or any other form approved 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
Revolving Commitments” means the Revolving Commitments of all the
Lenders.  The initial amount of the
Aggregate Revolving Commitments in effect on the Closing Date is ONE HUNDRED
FIFTY MILLION DOLLARS ($150,000,000).


 


“Agreement”
means this Letter of Credit Facility Agreement.


 


“Applicable
Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Revolving Commitments
represented by such Lender’s Revolving Commitment at such time; provided that
if the commitment of the obligation of the L/C Issuer to make L/C Credit
Extensions has been terminated pursuant to Section 9.02 or if the
Aggregate Revolving Commitments have expired, then the Applicable Percentage of
each Lender shall be determined based on the Applicable Percentage of such
Lender most recently in effect, giving effect to any subsequent
assignments.  The initial Applicable
Percentage of each Lender 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
Rate” means 0.25% per annum.


 


“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 sole lead arranger and book manager.


 


“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 assignee (with the consent of any party whose consent is required by Section 11.06(b)),
and accepted by the Administrative Agent, in substantially the form of Exhibit 11.06-1
or any other form approved by the Administrative Agent.


 


“Audited
Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended March 31, 2008,
and the related consolidated statements of income or operations, shareholders’
equity and cash flows of the Borrower and its Subsidiaries for such fiscal
year, including the notes thereto.


 


“Availability
Period” means, with respect to the Revolving Commitments, the period from
and including the Closing Date to the earliest of (a) the Maturity Date, (b) the
date of termination of the Aggregate Revolving Commitments pursuant to Section 2.03,
and (c) the date of termination of the obligation of the L/C Issuer to
make L/C Credit Extensions pursuant to Section 9.02.


 


“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 0.50% 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 the “prime 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.


 


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


 


“Borrower Materials” has the meaning
specified in Section 7.02.


 


“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.


 


“Cash
Collateral” means cash and Cash Equivalents held in the Cash Collateral
Account.


 


“Cash
Collateral Account” means a deposit account or securities account of the
Borrower that (a) is maintained with the Administrative Agent or an
Affiliate of the Administrative Agent, (b) is subject to a Lien granted
under the Collateral Documents to secure the Obligations, (c) is
specifically designated by the Borrower as a collateral account and (d) if
such deposit account or securities account is maintained with an Affiliate of
the Administrative Agent, is subject to a Control Agreement.


 


2

















 


“Cash
Collateralize” means, with respect to any Letter of Credit, to deposit into
the Cash Collateral Account cash and Cash Equivalents in an amount equal to
100% of the amount of such Letter of Credit (as determined in accordance with Section 1.06).


 


“Cash
Equivalents” means (a) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than twelve months
from the date of acquisition and (b) money market mutual funds subject to Rule 2a-7
of the Investment Company Act of 1940.


 


“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, to the extent having the force of law, in the administration,
interpretation or application thereof by any Governmental Authority or (c) the
making or issuance of any request, guideline or directive 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 (x) any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan and (y) GFI) 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 Equity Interests 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 thirty-five percent (35%) or more of the Equity Interests of the
Borrower entitled to vote for members of the board of directors or equivalent
governing body of the Borrower 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 24 consecutive months, a
majority of the members of the board of directors or other equivalent governing
body of the Borrower cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of such
period, (ii) whose election or nomination to that board or equivalent
governing body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of
that board or equivalent governing body or (iii) whose election or
nomination to that board or other equivalent governing body was approved by
individuals 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).


 


“Closing
Date” means the date hereof.


 


“Collateral”
means a collective reference to all property with respect to which Liens in
favor of the Administrative Agent, for the benefit of itself and the Lenders,
are purported to be granted pursuant to and in accordance with the terms of the
Collateral Documents.


 


3

















 


“Collateral
Documents” means a collective reference to the Security Agreement and other
security documents as may be executed and delivered by the Borrower pursuant to
the terms of this Agreement or any other Loan Document.


 


“Commitment”
means, as to each Lender, the Revolving Commitment of such Lender.


 


“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.


 


“Control
Agreement” means an agreement among the Borrower, the Administrative
Agent and the Person maintaining the Cash Collateral Account, in form and
substance reasonably satisfactory to the Administrative Agent, granting control
to the Administrative Agent over the Cash Collateral Account.


 


“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.


 


“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 rate equal to the Applicable Rate plus 2% per annum.


 


“Defaulting
Lender” means any Lender that (a) has failed to fund participations in
L/C Obligations 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 or insolvency proceeding.


 


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


 


“Eligible Assignee” means any Person that
meets the requirements to be an assignee under Sections 11.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be
required under Section 11.06(b)(iii)).


 


“Environmental
Laws” means any and all federal, state, local, foreign and other applicable
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 the Borrower or any 


 


4

















 


Subsidiary
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 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.


 


“Equity
Interests”  means, with respect to
any Person, all of the shares of capital stock of (or other ownership or profit
interests 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 the Borrower within the meaning of Section 414(b) or
(c) of the Internal Revenue Code (and Sections 414(m) and (o) of
the Internal Revenue Code for purposes of provisions relating to Section 412
of the Internal Revenue Code).


 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Section 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.


 


“Event
of Default” has the meaning specified in Section 9.01.


 


“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any
obligation of the 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 the Borrower is located, (c) any backup withholding
tax that is required by the Internal Revenue Code to be withheld from amounts
payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii),
and (d) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 11.13), any United
States withholding tax that (i) is required to be imposed on amounts
payable to such Foreign Lender pursuant to the Laws in force at the time such
Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is
attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to 


 


5

















 


comply
with clause (B) of Section 3.01(e)(ii), 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 the Borrower with respect to such withholding tax pursuant to Section 3.01(a)(i) or (ii).


 


“Federal
Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers on such day, as
published by the Federal Reserve Bank 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.


 


“Foreign Lender” means any Lender that is
organized under the Laws of a jurisdiction other than that in which the
Borrower is resident for tax purposes (including such a Lender when acting in
the capacity of the L/C Issuer).  For purposes
of this definition, the United States, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.


 


“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 activities.


 


“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, consistently
applied and as in effect from time to time.


 


“GFI”
means, collectively, OCM/GFI Power Opportunities Fund II, L.P. and OCM/GFI
Power Opportunities Fund II (Cayman), L.P. and their Affiliates.


 


“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).


 


“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.


 


“Honor
Date” means, with respect to any payment by the L/C Issuer under a Letter
of Credit, the date of such payment or, if notice of such payment is not
provided to the Borrower by the L/C Issuer prior to 11:00 a.m. on the date
of such payment, the first Business Day for which notice of such is provided by
the L/C Issuer to the Borrower prior to 11:00 a.m.


 


“Indemnified Taxes” means Taxes other than
Excluded Taxes.


 


6
















 


“Indemnitees” has the meaning specified in Section 11.04(b).


 


“Information” has the meaning specified in Section 11.07.


 


“Intercreditor
Agreement” means the Intercreditor Agreement dated as of the Closing Date
among the Borrower, the Administrative Agent and the administrative agent under
the Revolving Credit Agreement.


 


“Internal Revenue Code” means the Internal
Revenue Code of 1986.


 


“IRS” means the United States Internal
Revenue Service.


 


“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
the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C
Issuer and relating to such Letter of Credit.


 


“Laws”
means, collectively, all international, foreign, federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged with
the enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
having the force of law.


 


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


 


“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 Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit 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 not
be deemed to have expired and shall be deemed to be “outstanding” in the amount
so remaining available to be drawn.


 


“Lenders”
means each of the Persons identified as a “Lender” on the signature pages hereto,
each other Person that becomes a “Lender” in accordance with this Agreement and
their successors and assigns.


 


7

















 


“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 Borrower and the
Administrative Agent.


 


“Letter
of Credit” means any standby letter of credit issued hereunder.


 


“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
L/C Issuer.


 


“Letter
of Credit Fee” has the meaning specified in Section 2.01(i).


 


“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or
other security interest or preferential arrangement 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
Documents” means this Agreement, each Issuer Document, the Collateral
Documents and the Intercreditor Agreemeent.


 


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual
or contingent) or financial condition of the Borrower and its Subsidiaries
taken as a whole; (b) a material impairment on the rights and remedies of
the Administrative Agent and the Lenders under the Loan Documents; (c) a
material impairment on the ability of the Borrower to perform its obligations under
any Loan Document; or (d) a material adverse effect upon the legality,
validity, binding effect or enforceability against the Borrower of any Loan
Document.


 


“Material
Indebtedness” means any Indebtedness (as such term is defined in the
Revolving Credit Agreement as in effect on the date hereof but excluding
Indebtedness arising under the Loan Documents and Indebtedness arising 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.


 


“Maturity
Date” means the earlier of (a) the Stated Maturity Date and (b) the
date of the termination or expiration of the commitments under, or the
refinancing or replacement of, the Revolving Credit Agreement.


 


“Multiemployer
Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years, has made or been
obligated to make contributions.


 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, the Borrower arising under any Loan Document or otherwise with
respect to any 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 the Borrower or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming 


 


8

















 


such
Person as the debtor in such proceeding, regardless of whether such interest
and fees are allowed claims in such proceeding.


 


“Organization
Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation 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, 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 the Borrower of Unreimbursed Amounts.


 


“Participant” has the meaning specified in Section 11.06(d).


 


“PBGC” means the Pension Benefit Guaranty
Corporation or any successor thereto.


 


“Pension
Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.


 


“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) established by the Borrower or, with respect to any such plan that is
subject to Section 412 of the Internal Revenue Code or Title IV of ERISA,
any ERISA Affiliate.


 


“Platform”
has the meaning specified in Section 7.02.


 


“Public
Lender” has the meaning specified in Section 7.02.


 


“Register” has the meaning specified in Section 11.06(c).


 


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


 


9

















 


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


 


“Required
Lenders” means, at any time, Lenders holding in the aggregate more than 50%
of (a) the unfunded Commitments and the outstanding L/C Obligations and
participations therein or (b) if the Commitments have been terminated, the
outstanding L/C Obligations and participations therein.  The unfunded Commitments of, and the
outstanding L/C Obligations and participations therein held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.


 


“Responsible
Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of the Borrower and any other officer of the Borrower so
designated by any of the foregoing officers in a notice to the Administrative
Agent.  Any document delivered hereunder
that is signed by a Responsible Officer of the Borrower shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of the Borrower and such Responsible Officer shall be
conclusively presumed to have acted on behalf of the Borrower.


 


“Revolving
Commitment” means, as to each Lender, its obligation to 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 Lender’s name
on Schedule 2.01 or in the Assignment and Assumption pursuant to which
such Lender becomes a party hereto or in any documentation executed by such
Lender pursuant to Section 2.02, as applicable, as such amount may
be adjusted from time to time in accordance with this Agreement.


 


“Revolving
Credit Agreement” means the Credit Agreement dated as of the Closing Date
among the Borrower, the Subsidiaries identified therein, the lenders identified
therein and Bank of America, as administrative agent.


 


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


 


“Security
Agreement” means the security agreement executed in favor of the
Administrative Agent by the Borrower in substantially the form of Exhibit 5.02
(with such changes thereto as the Administrative Agent and the Borrower may
agree).


 


“Stated
Maturity Date” means July 29, 2011; provided, however,
that if such date is not a Business Day, the Stated Maturity Date shall be the
next preceding Business Day


 


“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 Voting
Stock is at the time beneficially owned, or the management of which is
otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. 
Unless otherwise specified, all references herein to a “Subsidiary” or
to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the
Borrower.  For purposes of the Loan
Documents (other than Section 7.01(a) and Section 7.01(b) of this Agreement), Permitted Joint Ventures
(as defined in the Revolving Credit Agreement) shall not constitute
Subsidiaries of the Borrower.


 


“Swap
Contract” means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or 


 


10

















 


forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master
Agreement.


 


“Swap
Termination Value” means, in respect of any one or more Swap Contracts,
after taking into account the effect of any legally enforceable netting
agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s) determined
in accordance therewith, such termination value(s) and (b) for any
date prior to the date referenced in 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).


 


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


 


“Threshold Amount” means $5 million.


 


“Unfunded
Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension
Plan’s assets, determined in accordance with the assumptions used for funding
that Pension Plan pursuant to Section 412 of the Internal Revenue Code for
the applicable plan year.


 


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


 


“Unreimbursed Amount” has the meaning
specified in Section 2.01(c)(i).


 


“Voting
Stock” means, with respect to any Person, Equity Interests issued by such
Person the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even though the right so to vote has been suspended
by the happening of such a contingency.


 


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.”  Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other 


 


11

















 


document
(including any Organization 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, (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.  Except as otherwise
specifically prescribed herein, 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 Audited
Financial Statements except for changes concurred in by the Borrower’s
independent certified public accountants.


 


(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 Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders
and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided  that,
until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in
GAAP.


 


1.04                           [Reserved].


 


1.05                           Determination of Delivery
or Due Dates and Times of Day.


 


If
any financial statement, notice, certificate or other document required
pursuant to any Loan Document becomes due or is deliverable on a day other than
a Business Day, then the delivery date or due 


 


12

















 


date
of such financial statement, notice, certificate or other deliverable shall be
extended to the next succeeding Business Day. 
Unless otherwise specified, all references herein to times of day shall
be references to Eastern 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 (a) 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 (b) if the stated amount of any Letter of Credit has been permanently
reduced, then for purposes of this Section 1.06 the stated amount
of such Letter of Credit shall be reduced by the amount of such permanent
reduction.


 


ARTICLE II


 


THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01                           Letters of Credit.


 


(a)                                  The Letter of Credit Commitment.


 


(i)                                     Subject to the terms and conditions set forth
herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the
Lenders set forth in this Section 2.01, (1) from time to time
on any Business Day during the period from the Closing Date until the Maturity
Date, to issue Letters of Credit in Dollars for the account of the Borrower or
any Subsidiary, 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; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of the Borrower or its
Subsidiaries and any drawings thereunder; provided that after giving
effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the
aggregate Outstanding Amount of all L/C Obligations shall not exceed the
Aggregate Revolving Commitments and (y) the aggregate Outstanding Amount
of any Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations shall not exceed such Lender’s Revolving Commitment.  Each request by the Borrower for the issuance
or amendment of a Letter of Credit shall be deemed to be a representation by
the 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, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the 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.


 


(ii)                                  The L/C Issuer shall not issue any Letter of
Credit if:


 


(A)                              subject to Section 2.01(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
Lenders have approved such expiry date; or


 


13

















 


(B)                                the expiry date of such requested Letter of
Credit would occur more than twelve months after the Maturity Date, unless all
the Lenders have approved such expiry date.


 


(iii)                               The L/C Issuer shall not 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 the L/C Issuer from issuing such Letter of Credit, or any Law
applicable to the L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over the
L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the
issuance of letters of credit generally or such Letter of Credit in particular
or shall impose upon the L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the 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 the L/C Issuer applicable to borrowers
generally;


 


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


 


(D)                               such Letter of Credit is to be denominated in
a currency other than Dollars; or


 


(E)                                 a default of any Lender’s obligations to fund
under Section 2.01(c) exists or any Lender is at such time a Defaulting Lender hereunder,
unless the L/C Issuer has entered into satisfactory arrangements with the
Borrower or such Lender to eliminate the L/C Issuer’s risk with respect to such
Lender.


 


(iv)                              The L/C Issuer shall not amend any Letter of Credit if the 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)                                 The L/C Issuer shall be under no obligation
to amend any Letter of Credit if (A) the L/C Issuer would have no
obligation at such time to issue such Letter of Credit 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)                              The 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 the L/C Issuer shall have all of the benefits and
immunities (A) provided to the Administrative Agent in Article X
with respect to any acts taken or omissions suffered by the 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 X included the L/C
Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the L/C Issuer.


 


14

















 


(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 Borrower delivered to the
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 Borrower.  Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m. at least two (2) Business Days (or such later
date and time as the Administrative Agent and the 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 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 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; (G) the purpose and nature
of the requested Letter of Credit; and (H) such other matters as the L/C
Issuer may 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 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 the L/C Issuer may
require. Additionally, the Borrower shall furnish to the 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 the L/C Issuer or the Administrative Agent may reasonably
require.


 


(ii)                                  Promptly after receipt of any Letter of
Credit Application, the 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 Borrower and, if not, the L/C
Issuer will provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received written
notice from any Lender, the Administrative Agent or the Borrower, 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 V shall not be satisfied, then, subject to the terms and
conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter
of Credit for the account of the Borrower or the applicable Subsidiary or enter
into the applicable amendment, as the case may be, in each case in accordance
with the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter
of Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk participation in
such Letter of Credit in an amount equal to the product of such Lender’s
Applicable Percentage times the amount of such Letter of Credit.


 


(iii)                               If the Borrower so requests in any applicable Letter of Credit
Application, the 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 the 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 L/C Issuer,
the Borrower shall not be required to make a specific request to the L/C Issuer
for any such extension.  Once an
Auto-Extension 


 


15

















 


Letter
of Credit has been issued, the Lenders shall be deemed to have authorized (but
may not require) the L/C Issuer to permit the extension of such Letter of
Credit at any time to an expiry date not later than the date twelve months
after the Maturity Date; provided, however, that the L/C Issuer
shall not permit any such extension if (A) the 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 2.01(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 Lender or the Borrower
that one or more of the applicable conditions specified in Section 5.02
is not then satisfied, and in each case directing the L/C Issuer not to permit
such extension.


 


(iv)                              If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree to
issue a Letter of Credit that permits the automatic reinstatement of all or a
portion of the stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement
Letter of Credit”).  Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a
specific request to the L/C Issuer to permit such reinstatement.  Once an Auto-Reinstatement Letter of Credit
has been issued, except as provided in the following sentence, the Lenders
shall be deemed to have authorized (but may not require) the L/C Issuer to
reinstate all or a portion of the stated amount thereof in accordance with the
provisions of such Letter of Credit. 
Notwithstanding the foregoing, if such Auto-Reinstatement Letter of
Credit permits the L/C Issuer to decline to reinstate all or any portion of the
stated amount thereof after a drawing thereunder by giving notice of such
non-reinstatement within a specified number of days after such drawing (the “Non-Reinstatement
Deadline”), the L/C Issuer shall not permit such reinstatement if it has
received a notice (which may be by telephone or in writing) on or before the
day that is seven Business Days before the Non-Reinstatement Deadline (A) from
the Administrative Agent that the Required Lenders have elected not to permit
such reinstatement or (B) from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in Section 5.02
is not then satisfied (treating such reinstatement as an L/C Credit Extension
for purposes of this clause) and, in each case, directing the L/C Issuer not to
permit such reinstatement.


 


(v)                                 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 L/C Issuer will also deliver to the
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 drawing under such Letter of Credit, the L/C
Issuer shall notify the Borrower and the Administrative Agent thereof.  On the date of any payment by the L/C Issuer
under a Letter of Credit, the Administrative Agent shall, automatically and
without any notice, cure or grace period to the Borrower, setoff against and
apply Cash Collateral in an amount sufficient to reimburse the L/C Issuer in
full of the amount of such drawing.  If
the Cash Collateral is insufficient to reimburse the L/C Issuer in full for the
amount of such drawing, then by not later than 11:00 a.m. on the Honor
Date the Borrower shall reimburse the L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing (less any portion
thereof reimbursed with Cash Collateral) plus, if the Honor Date occurs after
the date of such drawing, interest on the amount of such drawing from the date
of such drawing at a rate equal to the Base Rate plus the Applicable 


 


16

















 


Rate.  If the Borrower fails to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly notify each Lender
of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed
Amount”), and the amount of such Lender’s Applicable Percentage
thereof.  Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.01(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 Lender shall upon any notice pursuant to
Section 2.01(c)(i) make funds available to the Administrative Agent for the account of the
L/C Issuer at the Administrative Agent’s Office in an amount equal to its
Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m.
on the Business Day specified in such notice by the Administrative Agent.  The Administrative Agent shall remit the
funds so received to the L/C Issuer.


 


(iii)                               With respect to any Unreimbursed Amount that is not fully reimbursed
for any reason (including if the Cash Collateral is insufficient to reimburse
the L/C Issuer in full for the Unreimbursed Amount), the Borrower shall be
deemed to have incurred from the 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
Lender’s payment to the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.01(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 2.01.


 


(iv)                              Until each Lender funds its L/C Advance pursuant to this Section 2.01(c) to reimburse the L/C Issuer for any amount
drawn under any Letter of Credit, interest in respect of such Lender’s
Applicable Percentage of such amount shall be solely for the account of the L/C
Issuer.


 


(v)                                 Each Lender’s obligation to make L/C Advances
to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.01(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 L/C Issuer, the 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.  No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided herein.


 


(vi)                              If any Lender fails to make available to the Administrative Agent for
the account of the L/C Issuer any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.01(c) by the time specified in Section 2.01(c)(ii),
the 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 the L/C Issuer at a rate per annum equal to the
greater of the Federal Funds Rate and a rate determined by the L/C Issuer in
accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by the 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 L/C Advance in respect of the
relevant L/C Borrowing, as the case may be. 
A certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi) shall
be conclusive absent manifest error.


 


17
















 


(d)                                 Repayment of Participations.


 


(i)                                     At any time after the L/C Issuer has made a
payment under any Letter of Credit and has received from any Lender such Lender’s
L/C Advance in respect of such payment in accordance with Section 2.01(c),
if the Administrative Agent receives for the account of the L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Applicable 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 the L/C Issuer pursuant to Section 2.01(c)(i) is required to be returned under any of the
circumstances described in Section 11.05 (including pursuant to any
settlement entered into by the L/C Issuer in its discretion), each Lender shall
pay to the Administrative Agent for the account of the L/C Issuer its
Applicable 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 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 the Borrower to reimburse the L/C Issuer for each drawing under
each Letter of Credit 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 the 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),
the 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 the 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 the 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


 


18

















 


(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, the Borrower or any Subsidiary.


 


The
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 Borrower’s instructions or other irregularity, the
Borrower will promptly notify the L/C Issuer. 
The Borrower shall be conclusively deemed to have waived any such claim
against the L/C Issuer and its correspondents unless such notice is given as
aforesaid.


 


(f)                                    Role of L/C Issuer.  Each
Lender and the Borrower agree that, in paying any drawing under a Letter of
Credit, the L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by
such 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
the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer shall
be liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence of
gross negligence, willful misconduct or bad faith; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document.  The 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 the 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 the
L/C Issuer, the Administrative Agent, any of their respective Related Parties
nor any correspondent, participant or assignee of the L/C Issuer shall be
liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.01(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have
a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the L/C Issuer’s willful misconduct, gross negligence or
bad faith or the L/C Issuer’s willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter
of Credit.  In furtherance and not in
limitation of the foregoing, the 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 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.


 


(i)                                     Cash Collateral shall, at the direction of
the Borrower, be invested in Cash Equivalents selected by the Borrower.


 


(ii)                                  Within two (2) Business Days following
notice by the Administrative Agent to the Borrower that for any reason the
aggregate Outstanding Amount of all L/C Obligations exceed the Cash Collateral,
the Borrower shall deposit Cash Collateral in an amount equal to such excess
into the Cash Collateral Account.


 


19

















 


(iii)                               If the Cash Collateral Account is maintained with or held by an
Affiliate of the Administrative Agent, cause the Cash Collateral Account to be
subject to a Control Agreement at all times.


 


(h)                                 Applicability of ISP. 
Unless otherwise expressly agreed by the L/C Issuer and the Borrower
when a Letter of Credit is issued, the rules of the ISP shall apply to
each standby Letter of Credit.


 


(i)                                     Letter of Credit Fees.  The
Borrower shall pay to the Administrative Agent for the account of each Lender
in accordance with its Applicable Percentage a Letter of Credit fee (the “Letter
of Credit Fee”) for each Letter of Credit equal to the Applicable Rate 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 Maturity Date and thereafter on demand and (ii) computed
on a quarterly basis in arrears.  If
there is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while any Event of
Default exists, all Letter of Credit Fees shall accrue at the Default Rate.


 


(j)                                     Customary Fees of L/C Issuer.  The
Borrower will pay to the L/C Issuer, for its own account, the reasonable and
customary issuance, presentation, amendment and other processing fees, and
other reasonable and standard costs and charges, of the L/C Issuer relating to
letters of credit as from time to time in effect.  The issuance, presentation, amendment and
other processing fees, and other standard cost and charges, of the L/C Issuer
in effect on the Closing Date are as set forth on Schedule 1.01.


 


(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 Subsidiaries. 
Notwithstanding that a Letter of Credit issued or outstanding hereunder
is in support of any obligations of, or is for the account of, a Subsidiary,
the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any
and all drawings under such Letter of Credit. 
The Borrower hereby acknowledges that the issuance of Letters of Credit
for the account of Subsidiaries inures to the benefit of the Borrower, and that
the Borrower’s business derives substantial benefits from the businesses of
such Subsidiaries.


 


2.02                           Increases in Aggregate Revolving Commitments.


 


The
Borrower shall have the right, upon at least five (5) Business Days’ prior
written notice to the Administrative Agent, to increase the Aggregate Revolving
Commitments by up to $50 million in the aggregate in up to three increases at
any time prior to the date that is six (6) months prior to the Maturity
Date, subject, however, in any such case, to satisfaction of the
following conditions precedent:


 


(A)                              no Default shall have occurred and be continuing on the date on which
such increase is to become effective;


 


(B)                                such increase shall be in a minimum amount of $10 million and in
integral multiples of $5 million in excess thereof;


 


20

















 


(C)                                such requested increase shall only be effective upon receipt by the
Administrative Agent of (x) additional Commitments in a corresponding
amount of such requested increase from either existing Lenders and/or one or
more other Persons that qualify as Eligible Assignees (it being understood and
agreed that no existing Lender shall be required to provide an additional
Commitment) and (y) documentation from each Person providing an additional
Commitment evidencing its additional Commitment and its obligations under this
Agreement in form and substance reasonably acceptable to the Administrative Agent;
and


 


(D)                               the Administrative Agent shall have received all documents (including
resolutions of the board of directors of the Borrower and the Guarantors) it
may reasonably request relating to the corporate or other necessary authority
for such increase and the validity of such increase in the Aggregate Revolving
Commitments, and any other matters relevant thereto, all in form and substance
reasonably satisfactory to the Administrative Agent.


 


2.03                           Termination or Reduction
of Aggregate Revolving Commitments.


 


The
Borrower may, upon notice to the Administrative Agent, terminate the Aggregate
Revolving Commitments, or from time to time permanently reduce the Aggregate
Revolving Commitments to an amount not less than the Outstanding Amount of L/C
Obligations; provided that (i) any such notice shall be received by
the Administrative Agent not later than 12:00 noon five (5) Business Days
prior to the date of termination or reduction and (ii) any such partial
reduction shall be in an aggregate amount of $5,000,000 or any whole multiple
of $1,000,000 in excess thereof.  The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Revolving Commitments.  Any reduction of the Aggregate Revolving
Commitments shall be applied to the Revolving Commitment of each Lender
according to its Applicable Percentage. 
All fees accrued with respect thereto until the effective date of any
termination of the Aggregate Revolving Commitments shall be paid on the
effective date of such termination.


 


2.04                           Interest.


 


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.


 


2.05                           Computation of Interest
and Fees.


 


All
computations of interest based on the Base Rate 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 L/C Borrowing for the day on which the L/C Borrowing is
deemed made, and shall not accrue on an L/C Borrowing, or any portion thereof,
for the day on which such L/C Borrowing or such portion is paid, provided
that any L/C Borrowing that is repaid on the same day on which it is made
shall, subject to Section 2.07(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.


 


2.06                           Evidence of Debt.


 


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.  In the event of any conflict
between the accounts and records maintained by the Administrative 


 


21

















 


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.


 


2.07                           Payments Generally;
Administrative Agent’s Clawback.


 


(a)                                  General.  All payments to be made by the
Borrower shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff.  Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 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 2:00 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 the Borrower
shall come due on a day other than a Business Day, payment shall be made on the
next following Business Day, and such extension of time shall be reflected on
computing interest or fees, as the case may be.


 


(b)                                 Payments by Borrower; Presumptions by
Administrative Agent.  Unless the Administrative Agent shall have
received notice from the Borrower prior to the time at which any payment is due
to the Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the L/C Issuer, as the case may be, the amount due.  In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the 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 the 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 the Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest
error.


 


(c)                                  Obligations of Lenders Several.  The
obligations of the Lenders hereunder to fund participations in Letters of
Credit and to make payments pursuant to Section 11.04(c) are several and not joint.  The failure of any Lender to fund any such
participation or to make any payment under Section 11.04(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
purchase its participation or to make its payment under Section 11.04(c).


 


(d)                                 Insufficient Funds.  If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all amounts
of principal, L/C Borrowings, interest and fees then due hereunder, such funds
shall be applied (i) first, toward payment of interest and fees
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (ii) second,
toward payment of principal and L/C Borrowings then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
and L/C Borrowings then due to such parties.


 


22

















 


2.08                           Sharing of Payments by
Lenders.


 


If
any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
the participations in L/C Obligations held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of participations and
accrued interest thereon greater than its pro  rata share thereof
as provided herein, then the Lender receiving such greater proportion shall (a) notify
the Administrative Agent of such fact, and (b) purchase (for cash at face
value) subparticipations in L/C Obligations 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 principal of and accrued interest on their respective
amounts owing them, provided that:


 


(i)                                     if any such subparticipations are purchased
and all or any portion of the payment giving rise thereto is recovered, such
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 (A) any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or (B) any
payment obtained by a Lender as consideration for the assignment of or sale of
a subparticipation in L/C Obligations to any assignee or participant, other
than to the Borrower or any Subsidiary (as to which the provisions of this Section shall
apply).


 


The
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 the Borrower rights of
setoff and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such
participation.


 


2.09                           Extension of Stated
Maturity Date.


 


(a)                                  Requests for Extension.  The
Borrower may, by notice to the Administrative Agent (who shall promptly notify
the Lenders) not earlier than 60 days and not later than 45 days
prior to the Stated Maturity Date then in effect, request that each Lender
extend the Stated Maturity Date then in effect by one (1) year.  Each Lender, acting in its sole and
individual discretion, shall, by notice to the Administrative Agent given not
later than the date that is 30 days prior to the Stated Maturity Date then
in effect (the “Notice Date”), advise the Administrative Agent whether
or not such Lender agrees to such extension. 
The Stated Maturity Date then in effect shall be extended by one year if
each Lender agrees to such extension. 
Any Lender that does not so advise the Administrative Agent by the
Notice Date shall be deemed to have not approved such extension.  The election of any Lender to agree to such
extension shall not obligate any other Lender to so agree.  The Borrower may request only two extensions
of the Stated Maturity Date


 


(b)                                 Conditions to Effectiveness of Extensions. 
Notwithstanding the foregoing, the extension of the Stated Maturity Date
pursuant to this Section shall not be effective unless:


 


(i)                                     no Default shall exist; and


 


(ii)                                  the representations and warranties of the
Borrower contained in Article VI 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 on and as of the date
of such 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 as of such earlier date.


 


23

















 


ARTICLE III


 


TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01                           Taxes.


 


(a)                                  Payments Free of Taxes – Obligation to
Withhold: Payments on Account of Taxes.


 


(i)                                     Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall to
the extent permitted by applicable Laws be made free and clear of and without
reduction or withholding for any Taxes. If, however, applicable Laws require
the Borrower or the Administrative Agent to withhold or deduct any Tax, such
Tax shall be withheld or deducted in accordance with such Laws as determined by
the Borrower or the Administrative Agent, as the case may be, upon the basis of
the information and documentation to be delivered pursuant to subsection (e) below.


 


(ii)                                  If the Borrower or the Administrative Agent
shall be required by the Internal Revenue Code to withhold or deduct any Taxes,
including both United States Federal backup withholding and withholding taxes,
from any payment, then (A) the Administrative Agent shall withhold or make
such deductions as are determined by the Administrative Agent to be required
based upon the information and documentation it has received pursuant to
subsection (e) below, (B) the Administrative Agent shall timely pay
the full amount withheld or deducted to the relevant Governmental Authority in
accordance with the Internal Revenue Code, and (C) to the extent that the
withholding or deduction is made on account of Indemnified Taxes or Other
Taxes, the sum payable by the Borrower shall be increased as necessary so that
after any required withholding or the making of all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, any Lender or the L/C Issuer, as the case may be,
receives an amount equal to the sum it would have received had no such
withholding or deduction been made.


 


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


 


(c)                                  Tax Indemnifications.


 


(i)                                     Without limiting the provisions of subsection
(a) or (b) above, the Borrower shall, and does hereby indemnify the
Administrative Agent, each Lender and the L/C Issuer, and shall make payment in
respect thereof 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) withheld or deducted by the Borrower or the Administrative Agent or
paid by the Administrative Agent, such Lender or the 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.  The Borrower shall also, and
does hereby, indemnify the Administrative Agent, and shall make payment in
respect thereof within 10 days after demand therefor, for any amount which a
Lender or the L/C Issuer for any reason fails to pay indefeasibly to the
Administrative Agent as required by clause (ii) of this subsection.  A certificate as to the amount of any such
payment or liability delivered to the Borrower by a Lender or the L/C Issuer
(with a copy to the Administrative Agent), or by the 


 


24

















 


Administrative
Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.


 


(ii)                                  Without limiting the provisions of subsection
(a) or (b) above, each Lender and the L/C Issuer shall, and does
hereby, indemnify the Borrower and the Administrative Agent, and shall make
payment in respect thereof within 10 days after demand therefor, against any
and all Taxes and any and all related losses, claims, liabilities, penalties,
interest and expenses (including the reasonable and documented fees, charges
and disbursements of any counsel for the Borrower or the Administrative Agent)
incurred by or asserted against the Borrower or the Administrative Agent by any
Governmental Authority as a result of the failure by such Lender or the L/C
Issuer, as the case may be, to deliver, or as a result of the inaccuracy,
inadequacy or deficiency of, any documentation required to be delivered by such
Lender or the L/C Issuer, as the case may be, to the Borrower or the
Administrative Agent pursuant to subsection (e).  Each Lender and the L/C Issuer hereby
authorizes the Administrative Agent to set off and apply any and all amounts at
any time owing to such Lender or the L/C Issuer, as the case may be, under this
Agreement or any other Loan Document against any amount due to the
Administrative Agent under this clause (ii). 
The agreements in this clause (ii) shall survive the resignation
and/or replacement of the Administrative Agent, any assignment of rights by, or
the replacement of, a Lender or the L/C Issuer, the termination of the
Commitments and the repayment, satisfaction or discharge of all other
Obligations.


 


(d)                                 Evidence of Payments.  Upon
request by the Borrower or the Administrative Agent, as the case may be, after
any payment of Taxes by the Borrower or by the Administrative Agent to a
Governmental Authority, as provided in this Section 3.01, the
Borrower shall deliver to the Administrative Agent or the Administrative Agent
shall deliver to the Borrower, as the case may be, the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of any return required by Law to report such payment or other
evidence of such payment reasonably satisfactory to the Borrower or the
Administrative Agent, as the case may be.


 


(e)                                  Status of Lenders: Tax Documentation.


 


(i)                                     Each Lender shall deliver to the Borrower and
to the Administrative Agent, at the time or times prescribed by applicable Laws
or when reasonably requested by the Borrower or the Administrative Agent, such
properly completed and executed documentation prescribed by applicable Laws or
by the taxing authorities of any jurisdiction and such other reasonably
requested information as will permit the Borrower or the Administrative Agent,
as the case may be, to determine (A) whether or not payments made
hereunder or under any other Loan Document are subject to Taxes, (B) if
applicable, the required rate of withholding or deduction, and (C) such
Lender’s entitlement to any available exemption from, or reduction of,
applicable Taxes in respect of all payments to be made to such Lender by the
Borrower pursuant to this Agreement or otherwise to establish such Lender’s
status for withholding tax purposes in the applicable jurisdiction.


 


(ii)                                  Without limiting the generality of the
foregoing, if the Borrower is a resident for tax purposes in the United States


 


(A)                              any Lender that is a “United States person”
within the meaning of Section 7701(a)(30) of the Internal Revenue Code
shall deliver to the Borrower and the Administrative Agent executed originals
of Internal Revenue Service Form W-9 or such other documentation or
information prescribed by applicable Laws or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the 


 


25

















 


Administrative
Agent, as the case may be, to determine whether or not such Lender is subject
to backup withholding or information reporting requirements; and


 


(B)                                each Foreign Lender that is entitled under
the Internal Revenue Code or any applicable treaty to an exemption from or
reduction of withholding tax with respect to payments hereunder or under any
other Loan Document shall deliver to the 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 the Borrower or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do
so), whichever of the following is applicable:


 


(I)                                    executed originals 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)                                executed originals of Internal Revenue Service Form W-8ECI,


 


(III)                            executed originals of Internal Revenue Service Form W-8IMY and all
required supporting documentation,


 


(IV)                            in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under section 881(c) of the Internal Revenue 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 Internal Revenue Code, (B) a
“10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled
foreign corporation” described in section 881(c)(3)(C) of the Internal
Revenue Code and (y) executed originals of Internal Revenue Service Form W-8BEN,
or


 


(V)                                executed originals of any other form prescribed by applicable Laws as a
basis for claiming exemption from or a reduction in United States Federal
withholding tax together with such supplementary documentation as may be
prescribed by applicable Laws to permit the Borrower or the Administrative
Agent to determine the withholding or deduction required to be made.


 


(iii)                               Each Lender shall promptly (A) notify the Borrower and the
Administrative Agent of any change in circumstances which would modify or
render invalid any claimed exemption or reduction, and (B) take such steps
as shall not be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the re-designation
of its Lending Office) to avoid any requirement of applicable Laws of any
jurisdiction that the Borrower or the Administrative Agent make any withholding
or deduction for taxes from amounts payable to such Lender.


 


3.02                           [Reserved].


 


3.03                           [Reserved].


 


3.04                           Increased Costs.


 


26

















 


(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 or the L/C Issuer;


 


(ii)                                  subject any Lender or the L/C Issuer to any
tax of any kind whatsoever with respect to this Agreement, any Letter of Credit
or any participation in a Letter of Credit, or change the basis of taxation of
payments to such Lender or the 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 the L/C Issuer); or


 


(iii)                               impose on any Lender or the L/C Issuer any
other condition, cost or expense affecting this Agreement 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
or the 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 the L/C Issuer hereunder (whether of principal, interest or any
other amount) then, upon request of such Lender or the L/C Issuer, the Borrower
will pay to such Lender or the L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or the L/C Issuer, as the case
may be, for such additional costs incurred or reduction suffered.


 


(b)                                 Capital Requirements.  If
any Lender or the L/C Issuer determines that any Change in Law affecting such
Lender or the L/C Issuer or any Lending Office of such Lender or such Lender’s
or the 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 the
L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s
holding company, if any, as a consequence of this Agreement, the Commitments of
such Lender, or participations in Letters of Credit held by such Lender, or the
Letters of Credit issued by the L/C Issuer, to a level below that which such
Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company
could have achieved but for such Change in Law (taking into consideration such
Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the
L/C Issuer’s holding company with respect to capital adequacy), then from time
to time the Borrower will pay to such Lender or the L/C Issuer, as the case may
be, such additional amount or amounts as will compensate such Lender or the L/C
Issuer or such Lender’s or the L/C Issuer’s holding company for any such
reduction suffered.


 


(c)                                  Certificates for Reimbursement.  A
certificate of a Lender or the L/C Issuer, together with reasonable supporting
documentation or calculations, setting forth the amount or amounts necessary to
compensate such Lender or the 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 Borrower shall be conclusive absent manifest error.  The Borrower shall pay such Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.


 


(d)                                 Delay in Requests. 
Failure or delay on the part of any Lender or the L/C Issuer to demand
compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand
such compensation, provided that the Borrower shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more
than six months prior to the date that such Lender or the L/C Issuer, as the
case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the L/C Issuer’s
intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions


 


27
















 


is retroactive, then the six month period
referred to above shall be extended to include the period of retroactive effect
thereof).


 


3.05                           Mitigation Obligations;
Replacement of Lenders.


 


(a)                                  Designation of a Different Lending Office.  If
any Lender requests compensation under Section 3.04, or the
Borrower is required to pay any additional amount to any Lender, the L/C
Issuer, or any Governmental Authority for the account of any Lender or the L/C
Issuer pursuant to Section 3.01, then such Lender or the L/C Issuer
shall, as applicable, use reasonable efforts to designate a different Lending
Office for funding or booking its participations in L/C Obligations hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender or the L/C Issuer,
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, and (ii) in each case, would not subject such Lender or
the L/C Issuer, as the case may be, to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the
case may be.  The Borrower hereby agrees
to pay all reasonable out-of-pocket costs and expenses incurred by any Lender
or the L/C Issuer in connection with any such designation or assignment.


 


(b)                                 Replacement of Lenders.  If
any Lender requests compensation under Section 3.04, or if the
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 Borrower may replace such Lender in accordance with Section 11.13.


 


3.06                           Survival.


 


All of the Borrower’s
obligations under this Article III shall survive termination of the
Aggregate Revolving Commitments, repayment of all other Obligations hereunder
and resignation of the Administrative Agent.


 


ARTICLE IV


 


GUARANTY


 


[RESERVED]


 


ARTICLE V


 


CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


5.01                           Conditions of
Effectiveness.


 


This Agreement shall be
effective upon satisfaction of the following conditions precedent:


 


(a)                                  Loan Documents. 
Receipt by the Administrative Agent of executed counterparts of this
Agreement and the other Loan Documents, each properly executed by a Responsible
Officer of the Borrower and, in the case of this Agreement, by each Lender.


 


(b)                                 Opinions of Counsel. Receipt by the Administrative Agent of
favorable opinions of legal counsel to the Borrower, addressed to the
Administrative Agent and each Lender, dated as of the Closing Date, and in form
and substance reasonably satisfactory to the Administrative Agent.


 


28

















 


(c)                                  Organization Documents, Resolutions, Etc. 
Receipt by the Administrative Agent of the following, in form and
substance reasonably satisfactory to the Administrative Agent:


 


(i)                                     copies of the Organization Documents of the
Borrower certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction of its
incorporation or organization, where applicable, and certified by a secretary
or assistant secretary of the Borrower to be true and correct as of the Closing
Date;


 


(ii)                                  such certificates of resolutions or other
action, incumbency certificates and/or other certificates of Responsible
Officers of the Borrower as the Administrative Agent may reasonably require
evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents; and


 


(iii)                               such documents and certifications as the Administrative Agent may
reasonably require to evidence that the Borrower is duly organized or formed,
and is validly existing, in good standing and qualified to engage in business
in its state of organization or formation, the state of its principal place of
business and each other 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.


 


(d)                                 Revolving Credit Agreement.  The
Revolving Credit Agreement shall have closed and become effective.


 


(e)                                  Fees.  Receipt by the Administrative
Agent, the Arranger and the Lenders of any fees required to be paid on or
before the Closing Date.


 


(f)                                    Attorney Costs.  The
Borrower shall have paid all reasonable and documented fees, charges and
disbursements of counsel to the Administrative Agent (directly to such counsel
if requested by the Administrative Agent) to the extent invoiced prior to or on
the Closing Date, plus such additional amounts of such fees, charges and
disbursements as shall constitute its reasonable estimate of such 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).


 


Without limiting the
generality of the provisions of the last paragraph of Section 10.04,
for purposes of determining compliance with the conditions specified in this Section 5.01,
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 hereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


5.02                           Conditions to all L/C
Credit Extensions.


 


The obligation of the L/C
Issuer to make any L/C Credit Extension is subject to the following conditions
precedent:


 


(a)                                  The representations and warranties of the
Borrower contained in Article VI or any other Loan Document, or
which are contained in any document executed by the Borrower 


 


29

















 


and 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 L/C 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.


 


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


 


(c)                                  The Borrower shall not have sufficient
availability under the Revolving Credit Agreement to obtain the requested L/C
Credit Extension under the Revolving Credit Agreement.


 


(d)                                 The Borrower shall have Cash Collateralized
such Letter of Credit.


 


(e)                                  The Administrative Agent and the L/C Issuer
shall have received a Letter of Credit Application in accordance with the
requirements hereof.


 


(f)                                    If the requested L/C Credit Extension is the
initial request for an L/C Credit Extension under this Agreement, then:


 


(i)                                     The Administrative Agent shall have received
executed counterparts of the Security Agreement properly executed by a
Responsible Officer of the Borrower.


 


(ii)                                  The Borrower shall have opened the Cash
Collateral Account.


 


(iii)                               If the Cash Collateral Account is maintained with an Affiliate of the
Administrative Agent, then the Administrative Agent shall have received
a Control Agreement properly executed by the Borrower and the Person
maintaining the Cash Collateral Account.


 


(iv)                              The Administrative Agent shall have received a favorable opinion of
legal counsel to the Borrower, addressed to the Administrative Agent and each
Lender, dated as of the date of the Security Agreement, and in form and
substance reasonably acceptable to the Administrative Agent.


 


(v)                                 The Administrative Agent shall have received
such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of the Borrower as the
Administrative Agent may reasonably require evidencing the identity, authority
and capacity of the Responsible Officer executing and delivering the Security
Agreement.


 


Each Letter of Credit
Application submitted by the Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections 5.02(a), (b) and (c) have been satisfied on and as of the date of
the applicable L/C Credit Extension.


 


30

















 


ARTICLE VI


 


REPRESENTATIONS AND WARRANTIES


 


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


 


6.01                           Existence, Qualification
and Power.


 


The Borrower and each of its
Subsidiaries (a) is duly organized or formed, validly existing and, as
applicable, in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority
and all requisite governmental licenses, authorizations, consents and approvals
to (i) own or lease its assets and carry on its business 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, as applicable, in
good standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification or license; 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.


 


6.02                           Authorization; No
Contravention.


 


The execution, delivery and
performance by the Borrower of each Loan Document have been duly authorized by
all necessary corporate or other organizational action, and do not (a) contravene
the terms of any of the Borrower’s Organization Documents; (b) conflict
with or result in any breach or contravention of, or the creation of any Lien
under, or require any payment to be made under (i) any material
Contractual Obligation to which the Borrower is a party or affecting the
Borrower or the properties of the Borrower or any of its Subsidiaries or (ii) any
order, injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject; or (c) violate any
Law.


 


6.03                           Governmental
Authorization; Other Consents.


 


No material 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
in connection with the execution, delivery or performance by, or enforcement
against, the Borrower of this Agreement or any other Loan Document other than (i) those
that have already been obtained and are in full force and effect and (ii) filings
to perfect the Liens created by the Collateral Documents.


 


6.04                           Binding Effect.


 


Each Loan Document has been
duly executed and delivered by the Borrower. 
Each Loan Document constitutes a legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance with its terms,
except as such enforceability may be limited by (i) applicable Debtor
Relief Laws and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).


 


6.05                           Financial Statements; No
Material Adverse Effect.


 


(a)                                  The 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
present in all material respects the financial condition of the Borrower and
its Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP 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
Borrower and its Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.


 


31

















 


(b)                                 From the date of the Audited Financial
Statements to and including the Closing Date, there has been no disposition
(voluntary or involuntary) of any material part of the business or property of
the Borrower and its Subsidiaries, taken as a whole, and no purchase or other
acquisition by any of them of any business or property (including any Equity
Interests of any other Person) material in relation to the consolidated
financial condition of the Borrower and its Subsidiaries, taken as a whole, in
each case, which is not reflected in the foregoing financial statements or in
the notes thereto or has not otherwise been disclosed in writing to the Lenders
on or prior to the Closing Date.


 


(c)                                  The financial statements delivered pursuant
to Section 7.01(a) and (b) have been prepared in accordance with GAAP (except as may
otherwise be permitted under Section 7.01(a) and (b)) and present fairly (on the
basis disclosed in the footnotes to such financial statements) the consolidated
financial condition, results of operations and cash flows of the Borrower and
its Subsidiaries as of the dates thereof and for the periods covered thereby.


 


(d)                                 Since the date of the Audited Financial
Statements, there has been no event or circumstance that has had or could
reasonably be expected to have a Material Adverse Effect.


 


6.06                           Litigation.


 


There are no actions, suits,
proceedings, claims or disputes pending or, to the knowledge of the Borrower
after reasonable investigation, threatened or contemplated, at law, in equity,
in arbitration or before any Governmental Authority, by or against the Borrower
or any Subsidiary 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) could reasonably be expected
to have a Material Adverse Effect.


 


6.07                           No Default.


 


(a)                                  Neither the Borrower nor any Subsidiary is in
default under or with respect to any Contractual Obligation that could
reasonably be expected to have a Material Adverse Effect.


 


(b)                                 No Default has occurred and is continuing.


 


6.08                           Margin Regulations; Investment
Company Act.


 


(a)                                  The Borrower is not engaged and will not
engage, principally or as one of its important activities, in the business of
purchasing or carrying margin stock (within the meaning of Regulation U issued
by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock.  Following the application
of the proceeds of each drawing under each Letter of Credit, not more than 25%
of the value of the assets (either of the Borrower only or of the Borrower and
its Subsidiaries on a consolidated basis) subject to any restriction contained
in any agreement or instrument between the Borrower and any Lender or any
Affiliate of any Lender relating to Indebtedness and within the scope of Section 9.01(e) will be margin stock.


 


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


 


6.09                           Disclosure.


 


The Borrower has disclosed
to the Administrative Agent and the Lenders all agreements, instruments and
corporate or other restrictions to which it or any of its Subsidiaries is
subject, and all 


 


32

















 


other matters known to it, that could
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 the Borrower 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 and the time at
which they were made and taken as a whole, not materially misleading; provided
that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions
believed by the Borrower to be reasonable at the time.


 


ARTICLE VII


 


AFFIRMATIVE COVENANTS


 


So long as any Lender shall
have any Commitment hereunder, any Obligation hereunder (other than contingent
indemnification obligations) shall remain unpaid or unsatisfied, or any Letter
of Credit shall remain outstanding, the Borrower shall and shall cause each
Subsidiary to:


 


7.01                           Financial Statements.


 


Deliver to the Administrative
Agent, in form and detail reasonably satisfactory to the Administrative Agent:


 


(a)                                  as soon as available, but in any event within
ninety days after the end of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
year, and the related consolidated statements of income or operations, changes
in 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 in
reasonable detail and prepared in accordance with GAAP, audited and accompanied
by a report and opinion of an independent certified public accountant of
nationally recognized standing reasonably acceptable to the Administrative
Agent, which report and opinion shall be prepared in accordance with generally
accepted auditing standards and shall not be subject to any “going concern” or
like qualification or exception or any qualification or exception as to the
scope of such audit; and


 


(b)                                 as soon as available, but in any event within
forty-five days after the end of each of the first three fiscal quarters of
each fiscal year of the Borrower, a consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such fiscal quarter, the related
consolidated statements of income or operations for such fiscal quarter and for
the portion of the Borrower’s fiscal year then ended, and the related
consolidated statements of changes in shareholders’ equity and cash flows,
setting forth in comparative form, as applicable, 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 and certified by
the chief executive officer, chief financial officer, treasurer or controller
of the Borrower as fairly presenting the financial condition, results of
operations, shareholders’ equity and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.


 


As to any information
contained in materials furnished pursuant to Section 7.02(d), the
Borrower shall not be separately required to furnish such information under
clause (a) or (b) above, but the 


 


33

















 


foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in clauses (a) and (b) above at the times
specified therein.


 


7.02                           Certificates; Other
Information.


 


Deliver to the
Administrative Agent, in form and detail reasonably satisfactory to the
Administrative Agent:


 


(a)                                  promptly after the same are available, copies
of each annual report, proxy or financial statement or other report or
communication sent to the equityholders of the Borrower or any Subsidiary, and
copies of all annual, regular, periodic and special reports and registration
statements which the Borrower or any Subsidiary 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;


 


(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 the Borrower by independent
accountants in connection with the accounts or books of the Borrower or any
Subsidiary, or any audit of any of them;


 


(c)                                  promptly, and in any event within five
Business Days after receipt thereof by the Borrower or any Subsidiary, 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 the Borrower or any Subsidiary; and


 


(d)                                 promptly, such additional information
regarding the business, financial or corporate affairs of the Borrower or any
Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender may from time to time reasonably request.


 


Documents required to be
delivered pursuant to Section 7.01(a) or (b) or Section 7.02(a) (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 Borrower posts such documents, or provides a
link thereto on the Borrower’s website on the Internet at the website address
listed on Schedule 11.02; or (ii) on which such documents are
posted on the Borrower’s behalf on an Internet or intranet website, if any, to
which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (i) the Borrower shall deliver paper copies
of such documents to the Administrative Agent or any Lender that requests the
Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Borrower shall notify the Administrative Agent (by telecopier or
electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents.  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 Borrower 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.


 


The Borrower hereby
acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information
provided by or on behalf of 


 


34

















 


the Borrower 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 Borrower 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 Persons’ securities.  The Borrower
hereby agrees that so long as the Borrower is the issuer of any outstanding
debt or equity securities that are registered or issued pursuant to a private
offering or is actively contemplating issuing any such securities (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 Borrower shall be deemed to have
authorized the Administrative Agent, the Arranger, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrower or its 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 11.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated as “Public Side Information;” and (z) the
Administrative Agent and the Arranger shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform that is not marked as “Public Side Information”.  Notwithstanding the foregoing, the Borrower
shall be under no obligation to mark any Borrower Materials “PUBLIC.”


 


7.03                           Notices.


 


(a)                                  Promptly notify the Administrative Agent and
each Lender of the occurrence of any Default.


 


(b)                                 Promptly notify the Administrative Agent and
each Lender of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect.


 


(c)                                  Promptly notify the Administrative Agent and
each Lender of any material change in accounting policies or financial
reporting practices by the Borrower or any Subsidiary.


 


Each notice pursuant to this
Section 7.03 shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth details of the occurrence referred to
therein and stating what action the Borrower has taken and proposes to take
with respect thereto.  Each notice
pursuant to Section 7.03(a) shall describe with reasonable particularity
any and all provisions of this Agreement and any other Loan Document that have
been breached.


 


7.04                           Payment of Taxes


 


Pay and discharge, as the
same shall become due and payable, all its material tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Borrower or such Subsidiary.


 


7.05                           Preservation of Existence.


 


(a)                                  Preserve, renew and
maintain in full force and effect its legal existence under the Laws of the
jurisdiction of its organization.


 


35

















 


(b)                                 Preserve, renew and
maintain in full force and effect its good standing under the Laws of the
jurisdiction of its organization.


 


(c)                                  Take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary in the normal
conduct of its business, except to the extent that the failure to do so could
not reasonably be expected to have a Material Adverse Effect.


 


(d)                                 Preserve or renew all of its intellectual
property rights that are material to the operation of their respective
businesses, the non-preservation of which could reasonably be expected to have
a Material Adverse Effect.


 


7.06                           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 and loss from casualty
or condemnation excepted, and provided that the Borrower or any Subsidiary may
discontinue or cease to maintain any such properties and equipment if they are
no longer used or useful in the business and so long as such discontinuance or
failure to maintain could not reasonably be expected to have a Material Adverse
Effect.


 


(b)                                 Make all necessary repairs thereto and
renewals and replacements thereof, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.


 


7.07                           Maintenance of Insurance.


 


Maintain in full force and
effect insurance with financially sound and reputable insurance companies not
Affiliates of the Borrower, 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 Borrower or
the applicable Subsidiary operates.


 


7.08                           Compliance with Laws.


 


Comply 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; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.


 


7.09                           Books and Records.


 


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


 


(b)                                 Maintain such books of record and account in
material conformity with all applicable requirements of any Governmental
Authority having regulatory jurisdiction over the Borrower or such Subsidiary,
as the case may be.


 


7.10                           Use of Proceeds.


 


Use the Letters of Credit
for lawful corporate purposes.


 


36

















 


ARTICLE VIII


 


NEGATIVE COVENANTS


 


So long as any Lender shall
have any Commitment hereunder, any Obligation hereunder (other than contingent
indemnification obligations) shall remain unpaid or unsatisfied, or any Letter
of Credit shall remain outstanding, the Borrower shall not:


 


8.01                           Liens on Cash Collateral.


 


Create, incur, assume or
suffer to exist any Lien upon any Cash Collateral or the Cash Collateral
Account other than the Liens arising under the Loan Documents.


 


8.02                           Fundamental Changes.


 


Merge, dissolve, liquidate
or consolidate with or into another Person, unless the Borrower is the
continuing or surviving Person.


 


8.03                           Dispositions.


 


Sell, transfer, license,
lease or otherwise dispose of, or permit its Subsidiaries to sell, transfer, license,
lease or otherwise dispose of, all or substantially all of the property of the
Borrower and its Subsidiaries taken as a whole.


 


8.04                           Change in Nature of
Business.


 


Engage in any material line
of business substantially different from those lines of business conducted by
the Borrower and its Subsidiaries on the Closing Date or any business
substantially related or incidental thereto.


 


8.05                           Use of Proceeds.


 


Use any L/C 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.


 


ARTICLE IX


 


EVENTS OF DEFAULT AND REMEDIES


 


9.01                           Events of Default.


 


Any of the following shall
constitute an Event of Default:


 


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


 


37
















 


(b)           Specific
Covenants.


 


(i)            The Borrower fails to perform or observe any
term, covenant or agreement contained in any of Section 7.01 or 7.02
and such failure continues for five days; or


 


(ii)           The Borrower fails to perform or observe any term, covenant or
agreement contained in any of Section 2.01(g), Section 7.05(a) or
7.10 or Article VIII; or


 


(c)           Other
Defaults.  The Borrower fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for thirty days after the earlier of the date on which (i) a
Responsible Officer of the Borrower becomes aware of such failure or (ii) notice
thereof shall have been given by the Administrative Agent or any Lender to the
Borrower; or


 


(d)           Representations
and Warranties.  Any representation, warranty, certification
or statement of fact made or deemed made by or on behalf of the Borrower
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) The
Borrower or any Subsidiary fails to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise)
after the expiration of any applicable cure period in respect of any Material
Indebtedness; (ii) the Borrower or any Subsidiary fails to observe or
perform any other agreement or condition relating to any Material Indebtedness
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 Material Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause, with the
giving of notice if required and after the expiration of any applicable cure
period, such Material 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 Material Indebtedness to be
made, prior to its stated maturity; or (iii) 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 the
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 the Borrower or any Subsidiary is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by the Borrower
or such Subsidiary as a result thereof is greater than the Threshold Amount; or


 


(f)            Insolvency
Proceedings, Etc.  The Borrower or any Subsidiary 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 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 sixty calendar days; or any proceeding under any Debtor Relief Law relating
to any such Person or to all or any material part of its property is instituted
without the consent of such Person and continues undismissed or unstayed for
sixty calendar days, or an order for relief is entered in any such proceeding;
or


 


38

















 


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


 


(h)           Judgments. 
There is entered against the Borrower or any Subsidiary (i) 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
has been notified of the claim and does not dispute coverage), or (ii) any
one or more non-monetary final judgments that have, or could reasonably be
expected to have a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B) there
is a period of sixty consecutive days during which a stay of enforcement of
such judgment, by reason of a pending appeal or otherwise, is not in effect or
such judgment is not otherwise satisfied; or


 


(i)            ERISA.  (i) An
ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which
has resulted or could reasonably be expected to result in liability of the
Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan
or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the
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 (other
than contingent indemnification obligations), ceases to be in full force and
effect; or the Borrower or any other Person contests in any manner the validity
or enforceability of any Loan Document; or the Borrower 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.


 


9.02         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 obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be terminated;


 


(b)           declare
all amounts owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower;
and


 


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


 


39

















 


provided, however, that upon the occurrence of
an actual or deemed entry of an order for relief with respect to the Borrower
under the Bankruptcy Code of the United States, the obligation of the L/C
Issuer to make L/C Credit Extensions shall automatically terminate and all
unpaid amounts as aforesaid shall automatically become due and payable, in each
case without further act of the Administrative Agent or any Lender.


 


9.03         Application of Funds.


 


After
the exercise of remedies provided for in Section 9.02 (or after the
occurrence of an actual or deemed entry of an order for relief with respect to
the Borrower under the Bankruptcy Code of the United States) 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 reasonable and documented 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 and Letter of Credit Fees)
payable to the Lenders and the L/C Issuer (including the reasonable and
documented fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer 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 and interest on the L/C Borrowings, ratably among the Lenders and the L/C Issuer in proportion to
the respective amounts described in this clause Third held by them;


 


Fourth, to (a) payment
of that portion of the Obligations constituting unpaid principal of L/C
Borrowings and (d) Cash Collateralize that portion of L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit that is not then
Cash Collateralized, ratably among the Lenders and the L/C Issuer in proportion
to the respective amounts described in this clause Fourth held by them;
and


 


Last, the
balance, if any, after all of the Obligations (other than contingent
indemnification obligations) have been paid in full, to the Borrower or as
otherwise required by Law.


 


Subject
to Section 2.01(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth
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 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.


 


40

















 


ARTICLE X


 


ADMINISTRATIVE AGENT


 


10.01       Appointment and Authority.


 


Each
of the Lenders and the L/C Issuer 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 Issuer, and the Borrower shall
not have rights as a third party beneficiary of any of such provisions.


 


The
Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the
Lenders and the L/C Issuer hereby irrevocably appoints and authorizes the
Administrative Agent to act as the agent of such Lender and the L/C Issuer for
purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by the Borrower 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 10.05 for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral 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 X and Article XI
(including Section 11.04(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.


 


10.02       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 the 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.


 


10.03       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 


 


41

















 


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 the 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 11.01 and 9.02) or (ii) in
the absence of its own gross negligence, willful misconduct or bad faith.  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 the Borrower, a Lender or the
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 the
creation, perfection or priority of any Lien purported to be created by the
Collateral Documents, (v) the value or the sufficiency of any Collateral,
or (vi) the satisfaction of any condition set forth in Article V
or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.


 


10.04       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 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 issuance of a Letter
of Credit, that by its terms must be fulfilled to the satisfaction of a Lender
or the L/C Issuer, the Administrative Agent may presume that such condition is
satisfactory to such Lender or the L/C Issuer unless the Administrative Agent
shall have received notice to the contrary from such Lender or the L/C Issuer
prior to the issuance of such Letter of Credit. 
The Administrative Agent may consult with legal counsel (who may be
counsel for the 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.


 


10.05       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 


 


42

















 


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.


 


10.06       Resignation of Administrative Agent.


 


The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the L/C Issuer and the Borrower. 
Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, subject to the consent of the Borrower (such consent not
to be unreasonably withheld or delayed), 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 Issuer, appoint a
successor Administrative Agent meeting the qualifications set forth above and
subject to the consent of the Borrower (such consent not to be unreasonably
withheld or delayed); provided that if the Administrative Agent shall
notify the Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (a) 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 Issuer 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 (b) 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 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 Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring Administrative Agent’s resignation
hereunder and under the other Loan Documents, the provisions of this Article and
Section 11.04 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. 
Upon the acceptance of a successor’s appointment as Administrative Agent
hereunder, (i) such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of the retiring L/C Issuer, (ii) the
retiring L/C Issuer shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents, and (iii) 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.


 


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10.07       Non-Reliance on Administrative Agent and Other
Lenders.


 


Each
Lender and the 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 the 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.


 


10.08       No Other Duties; Etc.


 


Anything
herein to the contrary notwithstanding, none of the bookrunners, arrangers,
syndication agents, documentation agents or co-agents 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 the L/C Issuer hereunder.


 


10.09       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 the Borrower, the Administrative Agent
(irrespective of whether any 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 the 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 L/C Obligations and all other
Obligations arising under the Loan Documents 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 Issuer and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders, the L/C Issuer and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders, the L/C
Issuer and the Administrative Agent under Sections 2.01(i) and (j) and 11.04) 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 the L/C Issuer to make such payments to the Administrative Agent
and, if the Administrative Agent shall consent to the making of such payments
directly to the Lenders and the L/C Issuer, 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 Section 11.04.


 


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 the L/C
Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or the L/C Issuer to
authorize the Administrative Agent to vote in respect of the claim of any
Lender or the L/C Issuer in any such proceeding.


 


44

















 


10.10       Collateral Matters.


 


The Lenders and the L/C Issuer irrevocably authorize
the Administrative Agent, at its option and in its discretion,


 


(a)           to (i) upon the termination of the
Aggregate Revolving Commitments, the payment in full of all Obligations (other
than contingent indemnification obligations) and the expiration or termination
of all Letters of Credit, release its Lien on all Cash Collateral, (ii) upon
the expiration or termination of any Letter of Credit or the permanent
reduction of the stated amount of any Letter of Credit, release its Lien on
Cash Collateral in an amount equal to the amount, if any, by which the
aggregate amount of Cash Collateral exceeds the aggregate Outstanding Amount of
all L/C Obligations and (iii) release its Lien on Cash Collateral
consisting of interest and regular cash dividends on Cash Equivalents held in
the Cash Collateral Account provided that, after giving effect to such release,
the aggregate Outstanding Amount of all L/C Obligations shall not exceed the
Cash Collateral; and


 


(b)           to enter into and perform its obligations
under the Intercreditor Agreement.


 


Upon request by the Administrative Agent at any time,
the Required Lenders will confirm in writing the Administrative Agent’s
authority to release its Lien in Cash Collateral or to enter into and perform
its obligations under the Intercreditor Agreement, in each case pursuant to
this Section 10.10.


 


10.11       Intercreditor Agreement.


 


Each
of the Lenders hereby acknowledges that it has received and reviewed the
Intercreditor Agreement and agrees to be bound by the terms thereof.  Each Lender (and each Person that becomes a
Lender hereunder pursuant to Section 11.06 or Section 2.02)
hereby (i) acknowledges that Bank of America is acting under the
Intercreditor Agreement in multiple capacities as the Administrative Agent and
the administrative agent under the Revolving Credit Agreement and (ii) waives
any conflict of interest arising out of Bank of America acting in such
capacities in accordance with the terms and conditions thereof, now
contemplated or arising hereafter thereunder and, to such extent, agrees not to
assert against Bank of America any claims, causes of action, damages or
liabilities of whatever kind or nature relating thereto.  Each Lender (and each Person that becomes a
Lender hereunder pursuant to Section 11.06 or Section 2.02)
hereby agrees and acknowledges that Bank of America shall enter into the
Intercreditor Agreement in such capacities and agrees that Bank of America, in
its various capacities thereunder, may take such actions as are contemplated by
the terms of the Intercreditor Agreement.


 


ARTICLE XI


 


MISCELLANEOUS


 


11.01       Amendments, Etc.


 


No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrower therefrom, shall be
effective unless in writing signed by the Required Lenders and the Borrower,
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, further, that


 


(a)           no such amendment, waiver or consent shall:


 


45

















 


(i)            extend or increase the Commitment of a Lender
(or reinstate any Commitment terminated pursuant to Section 9.02)
without the written consent of such Lender whose Commitment is being extended
or increased (it being understood and agreed that a waiver of any condition
precedent set forth in Section 5.02 or of any Default or a
mandatory reduction in Commitments is not considered an extension or increase
in Commitments of any Lender);


 


(ii)           postpone any date fixed by this Agreement or any other Loan Document
for any payment (excluding mandatory prepayments) of principal, interest, fees
or other amounts due to the Lenders (or any of them) or any scheduled reduction
of the Commitments hereunder or under any other Loan Document without the written
consent of each Lender entitled to receive such payment or whose Commitments
are to be reduced;


 


(iii)          reduce the principal of, or the rate of interest specified herein on,
any L/C Borrowing, or (subject to clause (i) of the final proviso to this Section 11.01)
any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender entitled to receive such amount; provided,
however, that only the consent of the Required Lenders shall be
necessary to (A) amend the definition of “Default Rate” or waive any
obligation of the Borrower to pay interest or Letter of Credit Fees at the
Default Rate or (B) 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 L/C Borrowing or to reduce any fee payable
hereunder;


 


(iv)          change Section 2.08 or Section 9.03 in a manner
that would alter the pro rata sharing of payments required thereby without the
written consent of each Lender directly affected thereby;


 


(v)           change any provision of this Section 11.01(a) or the definition of “Required Lenders”
without the written consent of each Lender directly affected thereby;


 


(vi)          release all or substantially all of the Collateral without the written
consent of each Lender whose Obligations are secured by such Collateral;


 


(vii)         release the Borrower without the consent of each Lender; or


 


(b)           unless
also signed by the L/C Issuer, no amendment, waiver or consent shall affect the
rights or duties of the L/C Issuer under this Agreement or any Issuer Document
relating to any Letter of Credit issued or to be issued by it; and


 


(c)           unless
also signed by the Administrative Agent, no amendment, waiver or consent shall
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document;


 


provided, however, that notwithstanding
anything to the contrary herein, (i) no Defaulting Lender shall have any
right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender, (ii) each Lender is entitled to vote
as such Lender sees fit on any bankruptcy reorganization plan that affects the
L/C Obligations, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code of the United States supersedes the unanimous consent
provisions set forth herein and (iii) the Required 


 


46

















 


Lenders
shall determine whether or not to allow the Borrower to use cash collateral in
the context of a bankruptcy or insolvency proceeding and such determination
shall be binding on all of the Lenders.


 


11.02       Notices; Effectiveness; Electronic Communications.


 


(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 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 the Borrower, the Administrative Agent
or the L/C Issuer, to the address, telecopier number, electronic mail address
or telephone number specified for such Person on Schedule 11.02; and


 


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


 


Notices
and other communications sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given when
received; notices and other communications 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 and other communications 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 Issuer 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 the L/C Issuer
pursuant to Article II if such Lender or the 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 the 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.


 


(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


 


47
















 


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 the Borrower, any Lender, the 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 the 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 resulted from
the gross negligence, willful misconduct or bad faith of such Agent Party or
any of its Related Parties; provided, however, that in no event
shall any Agent Party have any liability to the Borrower, any Lender, the 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 Borrower, the Administrative
Agent and the L/C Issuer 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 Borrower, the Administrative Agent and the L/C
Issuer.  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 the Borrower or its securities for purposes of
United States Federal or state securities laws.


 


(e)           Reliance
by Administrative Agent, L/C Issuer and Lenders.  The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices purportedly given by or on behalf of the 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 Borrower shall indemnify the
Administrative Agent, the L/C Issuer, each Lender and the Related Parties of
each of them from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of
the Borrower.  All telephonic notices to
and other telephonic communications with the Administrative Agent may be recorded
by the Administrative Agent, and each of the parties hereto hereby consents to
such recording.


 


11.03       No Waiver; Cumulative Remedies; Enforcement.


 


No
failure by any Lender, the 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 or under
any other Loan Document 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, and provided under each other Loan Document are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.


 


48

















 


Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan
Documents against the Borrower or any of them shall be vested exclusively in,
and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 9.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not
prohibit (a) the Administrative Agent from exercising on its own behalf
the rights and remedies that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Loan Documents, (b) the
L/C Issuer from exercising the rights and remedies that inure to its benefit
(solely in its capacity as L/C Issuer) hereunder and under the other Loan
Documents, (c) any Lender from exercising setoff rights in accordance with
Section 11.08 (subject to the terms of Section 2.08),
or (d) any Lender from filing proofs of claim or appearing and filing
pleadings on its own behalf during the pendency of a proceeding relative to the
Borrower under any Debtor Relief Law; and provided, further, that
if at any time there is no Person acting as Administrative Agent hereunder and
under the other Loan Documents, then (i) the Required Lenders shall have
the rights otherwise ascribed to the Administrative Agent pursuant to Section 9.02
and (ii) in addition to the matters set forth in clauses (b), (c) and
(d) of the preceding proviso and subject to Section 2.08, any
Lender may, with the consent of the Required Lenders, enforce any rights and remedies
available to it and as authorized by the Required Lenders.


 


11.04       Expenses; Indemnity; and Damage Waiver.


 


(a)           Costs
and Expenses.  The Borrower shall pay (i) all
reasonable and documented out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates (including the reasonable and documented 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 and
documented out-of-pocket expenses incurred by the 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 reasonable and documented
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the reasonable and documented fees, charges and
disbursements of any counsel for the Administrative Agent, any Lender or the
L/C Issuer), and shall pay all fees and time charges for attorneys who may be
employees of the Administrative Agent, any Lender or the 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 Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during an
Event of Default in connection with any workout, restructuring or negotiations
in respect of such Letters of Credit.


 


(b)           Indemnification
by the Borrower.  The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the 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 and documented fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold
harmless each Indemnitee from all fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the Borrower 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 or the
consummation of the transactions contemplated hereby or thereby, or, in


 


49

















 


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
(including in respect of any matters addressed in Section 3.01), (ii) any
Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the 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 the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the 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 the
Borrower, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses resulted
from (x) the gross negligence, willful misconduct or bad faith of such
Indemnitee or any Related Party of such Indemnitee or (y) a claim brought
by one Indemnitee against another Indemnitee except with respect to any claim
brought by or initiated against the Borrower or any Subsidiary with respect to
any Indemnitee.


 


(c)           Reimbursement
by Lenders.  To the extent that the Borrower for any
reason fails to pay any amount required under subsection (a) or (b) of
this Section to be paid by them to the Administrative Agent (or any
sub-agent thereof), the 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), the 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 the
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 L/C
Issuer in connection with such capacity. 
The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.07(c).


 


(d)           Waiver
of Consequential Damages, Etc.  To the fullest extent permitted by applicable
law, no party hereto shall assert, and each party hereto hereby waives, any
claim against any other party hereto, 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 Letter of Credit or the use of
the proceeds thereof.  No Indemnitee
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, willful
misconduct or bad faith of such Indemnitee.


 


(e)           Payments.  All
amounts due under this Section shall be payable not later than ten
Business Days after demand (accompanied by a reasonably detailed written
invoice) therefor.


 


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


 


11.05       Payments Set Aside.


 


To
the extent that any payment by or on behalf of the Borrower is made to the
Administrative Agent, the L/C Issuer or any Lender, or the Administrative
Agent, the L/C Issuer or any Lender exercises


 


50

















 


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, the 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 the 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
Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.


 


11.06       Successors and Assigns.


 


                (a)           Successors and Assigns Generally.  The
provisions of this Agreement and the other Loan Documents shall be binding upon
and inure to the benefit of the parties hereto and thereto and their respective
successors and assigns permitted hereby, except that the Borrower may not
assign or otherwise transfer any of its rights or obligations hereunder or
thereunder 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 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 or
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) 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 Issuer 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 assignees all or a portion of its
rights and obligations under this Agreement and the other Loan Documents
(including all or a portion of its Commitment (including for purposes of this
subsection (b), participations in L/C Obligations) 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 (and the related L/C Advances and unfunded
participations in L/C Obligations) or in the case of an assignment to a Lender,
an Affiliate of a Lender or an Approved Fund, 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 L/C
Advances and unfunded participations in L/C Obligations thereunder) or, if the
Commitment is not then in effect, the L/C Advances and unfunded participations
in L/C Obligations of the assigning Lender subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than $5,000,000 unless each of the Administrative Agent and, so long as no
Event of Default has


 


51

















 


occurred
and is continuing, the Borrower 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
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 Commitments, and rights and obligations with respect
thereto, assigned;


 


                (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 Borrower (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 any Revolving Commitment if such assignment is to a Person that is not a
Lender, an Affiliate of a Lender or an Approved Fund; and


 


                (C)           the consent of the L/C Issuer (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).


 


                (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.  The assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.


 


                (v)           No Assignment to Borrower.  No such assignment shall be made to the
Borrower or any of the 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 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 cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04 and 11.04
with respect to facts and circumstances occurring prior to the effective date
of such assignment).  Upon request, the
Borrower (at its expense) shall execute and deliver a Note to the assignee


 


52

















 


Lender.  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 Borrower, shall maintain at
the Administrative Agent’s Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amounts of the 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 Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower and any Lender at any reasonable time and from time
to time upon reasonable prior notice.


 


                (d)           Participations.  Any
Lender may at any time, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s
rights and/or obligations under this Agreement (including all or a portion of
its Commitment (including such Lender’s L/C Advances and unfunded
participations in L/C Obligations)); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrower, the Administrative Agent, the
other Lenders and the L/C Issuer shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under
this Agreement.  Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification described in clauses (i) through (vii) of
the Section 11.01(a) that affects such Participant. 
Subject to subsection (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 3.01 and 3.04  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 shall be entitled to the benefits of Section 11.08  as though it were a Lender, provided such
Participant agrees to be subject to Section 2.08 as though it were
a Lender.


 


                (e)           Limitation on 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 Borrower’s prior written consent. 
A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 3.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 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.


 


(g)           Resignation
as L/C Issuer after Assignment.  Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Commitment
pursuant to subsection (b) 


 


53

















 


above,
Bank of America may, upon thirty days’ notice to the Borrower and the Lenders,
resign as L/C Issuer.  In the event of
any such resignation as L/C Issuer, the Borrower shall be entitled to appoint
from among the Lenders a successor L/C Issuer hereunder; provided, however,
that no failure by the Borrower to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer. 
If Bank of America resigns as 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 fund risk participations in
Unreimbursed Amounts pursuant to Section 2.01(c)).  Upon the appointment of a successor L/C
Issuer, (1) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring L/C Issuer and (2) 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 Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.


 


11.07       Treatment of Certain Information; Confidentiality.


 


Each
of the Administrative Agent, the Lenders and the L/C Issuer 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,
trustees, advisors and representatives in connection with the Loan Documents
and the transactions contemplated thereby (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, provided that such Person disclosing such Information shall, to the
extent practical (but without liability for failure to do so), give the
Borrower advance notice of such disclosure to the extent not prohibited by law,
(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 become a Lender pursuant to Section 2.01(b)
or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) with the
consent of the 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, the L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a source other than
the Borrower.


 


For
purposes of this Section, “Information” means all information received
from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary.  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.


 


Each
of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Borrower
or a Subsidiary, as the case may be, (b) it has developed compliance
procedures regarding the use of material non-public


 


54

















 


information
and (c) it will handle such material non-public information in accordance
with applicable Law, including United States federal and state securities Laws.


 


11.08       Set-off.


 


If
an Event of Default shall have occurred and be continuing, each Lender, the L/C
Issuer and each of their respective Affiliates is hereby authorized at any time
and from time to time, after obtaining the prior written consent of the
Administrative Agent, 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, the L/C
Issuer or any such Affiliate to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower then due and
owing under this Agreement or any other Loan Document to such Lender or the L/C
Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have
made any demand under this Agreement or any other Loan Document and although
such obligations of the Borrower are owed to a branch or office of such Lender
or the L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness.  The
rights of each Lender, the 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, the L/C Issuer or their respective
Affiliates may have.  Each Lender and the
L/C Issuer agrees to notify the Borrower 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.


 


11.09       Interest Rate Limitation.


 


Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the L/C Obligations or, if it
exceeds such unpaid principal, refunded to the Borrower.  In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate,
and spread in equal or unequal parts the total amount of interest throughout
the contemplated term of the Obligations hereunder.


 


11.10       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.  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 5.01,
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
other electronic imaging means shall be effective as delivery of a manually
executed counterpart of this Agreement.


 


55

















 


11.11       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 L/C Credit Extension,
and shall continue in full force and effect as long as any Obligation hereunder
(other than contingent indemnification obligations) shall remain unpaid or
unsatisfied or any Letter of Credit shall remain outstanding.


 


11.12       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.


 


11.13       Replacement of Lenders.


 


If
(i) any Lender requests compensation under Section 3.04, (ii) the
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,
(iii) a Lender (a “Non-Consenting Lender”) does not consent to a proposed
change, waiver, discharge or termination with respect to any Loan Document that
has been approved by the Required Lenders as provided in Section 11.01
but requires unanimous consent of all Lenders or all Lenders directly affected
thereby (as applicable) and, or (iv) any Lender is a Defaulting Lender,
then the Borrower 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 11.06), 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
Borrower or such assignee shall have paid to the Administrative Agent the
assignment fee specified in Section 11.06(b);


 


(b)           such
Lender shall have received payment of an amount equal to the outstanding
principal of its L/C Advances, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder and under the other Loan Documents from
the assignee (to the extent of such outstanding principal and accrued interest
and fees) or the Borrower (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
or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments
thereafter;


 


(d)           such
assignment does not conflict with applicable Laws; and


 


56

















 


(e)           in the case of any such assignment resulting
from a Non-Consenting Lender’s failure to consent to a proposed change, waiver,
discharge or termination with respect to any Loan Document, the applicable
replacement bank, financial institution or Fund consents to the proposed
change, waiver, discharge or termination; provided that the failure by
such Non-Consenting Lender to execute and deliver an Assignment and Assumption
shall not impair the validity of the removal of such Non-Consenting Lender and
the mandatory assignment of such Non-Consenting Lender’s Commitments, L/C
Advances and unfunded participations in L/C Obligations pursuant to this Section 11.13
shall nevertheless be effective without the execution by such Non-Consenting
Lender of an Assignment and Assumption.


 


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 Borrower to require such assignment and delegation
cease to apply.


 


11.14       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 WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES THEREOF.


 


(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 COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY 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 THE L/C ISSUER MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.


 


(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.


 


57
















 


(d)           SERVICE
OF PROCESS.  EACH PARTY HERETO
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES
IN SECTION 11.02.  NOTHING IN
THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.


 


11.15       Waiver of Right to Trial by Jury.


 


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.


 


11.16       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), the Borrower acknowledges and agrees, and acknowledges its Affiliates’
understanding, 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 Borrower and its
Affiliates, on the one hand, and the Administrative Agent and the Arranger, on the other hand, (B) the
Borrower has consulted its own legal, accounting, regulatory and tax advisors
to the extent it has deemed appropriate, and (C) the 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 the Borrower or any of
its Affiliates, or any other Person and (B) neither the Administrative
Agent nor the Arranger has any
obligation to the Borrower or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; and (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 the Borrower and its Affiliates,
and neither the Administrative Agent nor
the Arranger has any obligation to disclose any of such interests to the
Borrower and its Affiliates.  To the
fullest extent permitted by Law, the
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.


 


11.17       Electronic Execution of Assignments
and Certain Other Documents.


 


The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption or in
any amendment or other modification hereof (including waivers and consents)
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 


 


58

















 


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.


 


11.18       USA PATRIOT Act.


 


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 Borrower 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 the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act.  The Borrower shall, promptly following a
request by the Administrative Agent or any Lender, provide all documentation
and other information that the Administrative Agent or such Lender requests in
order to comply with its ongoing obligations under applicable “know your
customer” and anti-money laundering rules and regulations, including the
Act.


 


[SIGNATURE PAGES FOLLOW]


 


59

















 


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


 


	
  BORROWER:

  	
  GT
  SOLAR INTERNATIONAL, INC., a Delaware corporation

  
	
   

  	
   

  
	 
	
   

  	
  By:

  	
  /s/ Thomas M. Zarrella

  	 

	 
	
   

  	
  Name: Thomas M. Zarrella

  	 

	 
	
   

  	
  Title:
  President and CEO

  	 

	 
	
   

  	
   

  	 

	 
	
  ADMINISTRATIVE
  AGENT:

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

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  By:

  	
  /s/ Liliana Claar

  	 

	 
	
   

  	
  Name: Liliana Claar

  	 

	 
	
   

  	
  Title:
  Vice President

  	 

	 
	
   

  	
   

  	 

	 
	
  LENDERS:

  	
  BANK
  OF AMERICA, N.A.,

  	 

	 
	
   

  	
  as
  a Lender, L/C Issuer

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  By:

  	
  /s/ William J. Rowe

  	 

	 
	
   

  	
  Name: William J. Rowe

  	 

	 
	
   

  	
  Title:
  Senior Vice President

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  CREDIT
  SUISSE, CAYMAN ISLANDS BRANCH

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  By:

  	
  /s/ Brian Caldwell

  	 

	 
	
   

  	
  Name: Brian Caldwell

  	 

	 
	
   

  	
  Title:
  Director

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  By:

  	
  /s/ Morenikeji Ajayi

  	 

	 
	
   

  	
  Name: Morenikeji Ajayi

  	 

	 
	
   

  	
  Title:
  Associate

  	 

						



 
















 


Exhibit 5.02


 


FORM OF SECURITY AGREEMENT


 


SECURITY AGREEMENT


 


                THIS SECURITY
AGREEMENT (this “Agreement”) is entered into as of July     ,
2008 among GT SOLAR INTERNATIONAL, INC., a Delaware corporation (the “Obligor”),
and BANK OF AMERICA, N.A., in its capacity as administrative agent (in such
capacity, the “Administrative Agent”) for the holders of the Secured
Obligations (defined below).


 


RECITALS


 


                WHEREAS, pursuant
to the Letter of Credit Facility Agreement (as amended, modified, supplemented,
increased, extended, restated, refinanced and replaced from time to time, the “Facility
Agreement”) dated as of the date hereof among the Obligor, the Lenders
identified therein and the Administrative Agent, the L/C Issuer has agreed to
issue Letters of Credit for the account of the Obligor upon the terms and
subject to the conditions set forth therein; and


 


                WHEREAS, this
Agreement is required by the terms of the Facility Agreement.


 


                NOW, THEREFORE, in
consideration of these premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:


 


                1.             Definitions.


 


(a)           Capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
such terms in the Facility Agreement, and the following terms which are defined
in the Uniform Commercial Code in effect from time to time in the State of New
York except as such terms may be used in connection with the perfection of the
Collateral and then the applicable jurisdiction with respect to such affected
Collateral shall apply (the “UCC”): 
As-Extracted Collateral, Consumer Goods, Deposit Account, Farm Products,
Financial Asset, General Intangible, Instrument, Investment Property,
Manufactured Home, Proceeds, Securities Entitlement, Securities Account,
Securities Intermediary, Security and Tangible Chattel Paper.


 


                (b)           In
addition, the following terms shall have the meanings set forth below:


 


“Collateral”
has the meaning provided in Section 2 hereof.


 


                                “Permitted
Liens” means (a) Liens
securing obligations under the Revolving Credit Agreement provided that such
Liens are subject to the Intercreditor Agreement; (b) Liens (other than
Liens imposed under ERISA) for taxes, assessments or 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 Borrower in accordance with GAAP;
and (c) Liens securing judgments for the payment of money not constituting
an Event of Default under Section 9.01(h) of the Facility
Agreement.


 


“Secured Obligations”
means all Obligations.


 


                2.             Grant
of Security Interest in the Collateral. 
To secure the prompt payment and performance in full when due, whether
by lapse of time, acceleration, mandatory prepayment or otherwise, of the
Secured 


 

















 


Obligations, the Obligor
hereby grants to the Administrative Agent, for the benefit of the holders of
the Secured Obligations, a continuing security interest in, and a right to set
off against, any and all right, title and interest of the Obligor in and to all
of the following, whether now owned or existing or owned, acquired, or arising
hereafter (collectively, the “Collateral”):


 


(a)           all
of the accounts specified below (collectively, the “Cash Collateral Account”):


 


(i)            account number
[                    ]
maintained by Banc of America Securities LLC in the name of the Obligor, for
the benefit of the Obligor or as a collateral account of the Administrative Agent
for the Obligor; and [Note: If the Cash
Collateral Account is maintained with an affiliate of Banc of America
Securities LLC, then this granting clause will be revised as necessary]


 


(ii)           all successor and replacement accounts,
regardless of the numbers of such accounts or the offices at which such
accounts are maintained;


 


(b)           All
rights of the Obligor in connection with the Cash Collateral Account, including
any rights against any Securities Intermediary or any clearing broker in
connection with the Cash Collateral Account;


 


(c)           All
Investment Property, Security Entitlements, Financial Assets, Securities,  Deposit Accounts, Instruments, General
Intangibles, money, certificates of deposit and all other investments or
property of any sort now or hereafter held, maintained or administered in, or
credited to, the Cash Collateral Account; and


 


(d)           all
Proceeds of any and all of the foregoing.


 


                The Obligor and
the Administrative Agent, on behalf of the holders of the Secured Obligations,
hereby acknowledge and agree that the security interest created hereby in the
Collateral constitutes continuing collateral security for all of the Secured
Obligations, whether now existing or hereafter arising.


 


The Obligor hereby agrees
that all rights, assets and property at any time held in or credited to any
Securities Account constituting Collateral shall be treated as Financial
Assets.


 


                3.             Collateral
Restrictions.


 


(a)           The
Obligor may not sell, trade, withdraw or substitute any part of the Collateral
(and if any of the Collateral is maintained with or held by a Securities
Intermediary, the Obligor shall not request that such Securities Intermediary
sell, trade, withdraw or substitute any part of the Collateral) provided
that the Obligor may direct that amounts in the Cash Collateral Account be invested in Cash Equivalents selected by the
Obligor.


 


(b)           The
Administrative Agent shall, at the request of the Obligor, (i) upon the
expiration or termination of any Letter of Credit or the permanent reduction of
the stated amount of any Letter of Credit, release its Lien on Cash Collateral
in an amount equal to the amount, if any, by which the aggregate amount of Cash
Collateral exceeds the aggregate Outstanding Amount of all L/C Obligations and (ii) release
its Lien on Cash Collateral consisting of interest and regular cash dividends
on Cash Equivalents held in the Cash Collateral Account provided that, after
giving effect to such release, the aggregate Outstanding Amount of all L/C
Obligations shall not exceed the Cash Collateral.  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 


 


2

















 


of Credit shall not be deemed to have expired and shall
be deemed to be “outstanding” in the amount so remaining available to be drawn.


 


4.             Representations
and Warranties.  The Obligor hereby
represents and warrants to the Administrative Agent, for the benefit of the
holders of the Secured Obligations, that:


 


(a)           Ownership.  The Obligor is the legal and beneficial owner
of the Collateral and has the right to pledge, sell, assign or transfer the
same.


 


(b)           Security
Interest/Priority.  This Agreement
creates a valid security interest in favor of the Administrative Agent, for the
benefit of the holders of the Secured Obligations, in the Collateral and, when
perfected by properly filing financing statements under the UCC, shall
constitute a valid and perfected, first priority security interest in the
Collateral, to the extent such security interest can be perfected by filing
financing statements under the UCC, free and clear of all Liens other than
Permitted Liens.  With respect to any
Collateral consisting of a Deposit Account, Securities Entitlement or held in a
Securities Account, upon execution and delivery by the applicable Obligor, the
applicable Securities Intermediary and the Administrative Agent of an agreement
granting control to the Administrative Agent over such Collateral, the
Administrative Agent shall have a valid and perfected, first priority security
interest in such Collateral.


 


(c)           Types
of Collateral.  None of the
Collateral is the Proceeds of As-Extracted Collateral, Consumer Goods, Farm
Products, Manufactured Homes or standing timber.


 


(d)           Consents;
Etc.  There are no restrictions in
any document related to the Collateral which would limit or restrict (i) the
grant of a Lien pursuant to this Agreement, (ii) the perfection of such
Lien or (iii) the exercise of remedies in respect of such perfected Lien
as contemplated by this Agreement. 
Except for (i) the filing or recording of UCC financing statements,
(ii) obtaining control to perfect the Liens created by this Agreement, (iv) such
actions as may be required by Laws affecting the offering and sale of
securities and (v) consents, authorizations, filings or other actions
which have been obtained or made, no consent or authorization of, filing with,
or other act by or in respect of, any arbitrator or Governmental Authority and
no material consent of any other Person (including, without limitation, any
stockholder, member or creditor of the Obligor), is required for (A) the
grant by the Obligor of the security interest in the Collateral granted hereby
or for the execution, delivery or performance of this Agreement by the Obligor
or (B) the perfection of such security interest (to the extent such
security interest can be perfected by filing under the UCC, the granting of
control or (C) the exercise by the Administrative Agent or the holders of
the Secured Obligations of the rights and remedies provided for in this
Agreement.


 


                5.             Covenants.
The Obligor covenants that until such time as the Secured Obligations arising
under the Loan Documents (other than contingent indemnification obligations)
have been paid in full, the Commitments have expired or been terminated and no
Letters of Credit remain outstanding, the Obligor shall:


 


(a)           Instruments/Chattel Paper/Pledged
Equity/Control.


 


(i)            If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by any
Instrument or Tangible Chattel Paper, deliver such Instrument or Tangible
Chattel Paper to the Administrative Agent (or the Securities Intermediary, if
applicable) duly endorsed in a manner reasonably satisfactory to the
Administrative Agent (or the Securities Intermediary, if applicable).  The Obligor shall ensure that any Collateral
consisting of Tangible Chattel Paper is marked with a legend acceptable to the
Administrative Agent indicating the Administrative Agent’s security interest in
such Tangible Chattel Paper.


 


3

















 


(ii)           Deliver to the Administrative Agent (or the
Securities Intermediary, if applicable) promptly upon the receipt thereof by or
on behalf of the Obligor, all certificates and instruments representing or
evidencing Collateral.  Prior to delivery
to the Administrative Agent (or the Securities Intermediary, if applicable),
all such certificates and instruments shall be held in trust by the Obligor for
the benefit of the Administrative Agent pursuant hereto.  All such certificates and instruments shall
be delivered in suitable form for transfer by delivery or shall be accompanied
by duly executed instruments of transfer or assignment in blank, in a form
reasonably acceptable to the Administrative Agent (or the Securities
Intermediary, if applicable).


 


(b)           Further
Assurances.  The Obligor shall
execute and deliver to the Administrative Agent such agreements, assignments or
instruments as the Administrative Agent may reasonably request and do all such
other things as the Administrative Agent may reasonably deem necessary or
appropriate (i) to assure to the Administrative Agent its security interests
hereunder, including such instruments as the Administrative Agent may from time
to time reasonably request in order to perfect and maintain the security
interests granted hereunder in accordance with the UCC, (ii) to consummate
the transactions contemplated hereby and (iii) to otherwise reasonably
protect and assure the Administrative Agent of its rights and interests
hereunder.


 


                6.             Authorization
to File Financing Statements.  The
Obligor hereby authorizes the Administrative Agent to prepare and file such
financing statements (including continuation statements) or amendments thereof
or supplements thereto or other instruments as the Administrative Agent may
from time to time deem reasonably necessary or appropriate in order to perfect
and maintain the security interests granted hereunder in accordance with the
UCC.


 


                7.             Advances.  Upon the occurrence of an Event of Default
and the continuation thereof and upon notice to the Obligor, on failure of the
Obligor to perform any of the covenants and agreements contained herein, the
Administrative Agent may, at its sole option and in its sole discretion,
perform the same and in so doing may expend such sums as the Administrative
Agent may reasonably deem advisable in the performance thereof, including, without
limitation, the payment of any taxes, a payment to obtain a release of a Lien
or potential Lien, expenditures made in defending against any adverse claim and
all other expenditures which the Administrative Agent may reasonably make for
the protection of the security hereof or which may be compelled to make by
operation of Law.  All such sums and
amounts so expended shall be repayable by the Obligor promptly upon timely
notice thereof and demand therefor, shall constitute additional Secured
Obligations and shall bear interest from the date said amounts are expended at
the Default Rate.  No such performance of
any covenant or agreement by the Administrative Agent on behalf of the Obligor,
and no such advance or expenditure therefor, shall relieve the Obligor of any
Default or Event of Default.  The
Administrative Agent may make any payment hereby authorized in accordance with
any bill, statement or estimate procured from the appropriate public office or
holder of the claim to be discharged without inquiry into the accuracy of such
bill, statement or estimate or into the validity of any tax assessment, sale,
forfeiture, tax lien, title or claim except to the extent such payment is being
contested in good faith by the Obligor in appropriate proceedings and against
which adequate reserves are being maintained in accordance with GAAP.


 


                8.             Remedies.


 


(a)           General
Remedies.  Upon the occurrence of an
Event of Default and during continuation thereof, the Administrative Agent
shall have, in addition to the rights and remedies provided herein, in the Loan
Documents, in any other documents relating to the Secured Obligations, or by
Law (including, but not limited to, levy of attachment, garnishment and the
rights and remedies set forth in the UCC of the jurisdiction applicable to the
affected Collateral), the rights and remedies of a secured party under the UCC
(regardless of whether the UCC is the law of the jurisdiction where the rights
and remedies are asserted and 


 


4

















 


regardless of whether the
UCC applies to the affected Collateral). 
Additionally the Administrative Agent may sell all or any part of the
Collateral at public or private sale in accordance with the UCC, without advertisement,
in such manner and order as the Administrative Agent may elect.  Any Lender may purchase the Collateral for
its own account at any such sale.  The
Administrative Agent shall give the Obligor such notice of any public or
private sale as may be required by the UCC, provided that to the extent notice
of any such sale is required by the UCC or other applicable law, the Obligor
agrees that at least 10 days notice to the Obligor of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification and provided further that, if the
Administrative Agent fails to comply with this sentence in any respect, its
liability for such failure shall be limited to the liability (if any) imposed
on it as a matter of law under the UCC or other applicable law.  The Obligor acknowledges that Collateral may
be sold at a loss to the Obligor, and that, in such event, the Administrative
Agent shall have no liability or responsibility to the Obligor for such loss.  The Obligor further acknowledges that a
private sale may result in prices and other terms less favorable to the seller
than if such sale were a public sale and, notwithstanding such circumstances,
agrees that no such private sale shall, to the extent permitted by applicable
law, be deemed not to be “commercially reasonable” solely as a result of such
prices and other sale terms.  Upon any
such sale, the Administrative Agent shall have the right to deliver, assign and
transfer to the buyer thereof the Collateral so sold.  Each buyer at any such sale shall hold the
Collateral so sold absolutely and free from any claim or right of whatsoever
kind, including any equity or right of redemption of the Obligor that may be
waived or any other right or claim of the Obligor, and the Obligor, to the extent
permitted by law, hereby specifically waives all rights of redemption, stay or
appraisal that the Obligor has or may have under any law now existing or
hereafter adopted.  Without limiting any
other rights and remedies available to the Administrative Agent, the Obligor
expressly acknowledges and agrees that with respect to Collateral consisting of
notes, bonds or other securities which are not sold on a recognized market, the
Administrative Agent shall be deemed to have conducted a commercially reasonable
sale of such Collateral if (a) such sale is conducted by any nationally
recognized broker dealer (including any affiliate of the Administrative Agent),
investment banker or any other method common in the securities industry, and (b) if
the purchaser is the Administrative Agent or any affiliate of the
Administrative Agent, the sale price received by the Administrative Agent in
connection with such sale is reasonably supported by quotations received from
one or more other nationally recognized broker-dealers, investment bankers or
other financial institutions.  The
Obligor agrees that the Collateral may be sold as provided for in this
Agreement and expressly waives any rights of notice of sale, advertisement
procedures, or related provisions granted under applicable law, including the
New York Lien Law.


 


(b)           Nonexclusive
Nature of Remedies.  Failure by the
Administrative Agent or, if applicable pursuant to Section 21
hereto, the Required Lenders to exercise any right, remedy or option under this
Agreement, any other Loan Document, any other document relating to the Secured
Obligations, or as provided by Law, or any delay by the Administrative Agent or
the Required Lenders in exercising the same, shall not operate as a waiver of
any such right, remedy or option.  No
waiver hereunder shall be effective unless it is in writing, signed by the
party against whom such waiver is sought to be enforced and then only to the
extent specifically stated, which in the case of the Administrative Agent or
the Required Lenders shall only be granted as provided herein.  To the extent permitted by Law, none of the
Administrative Agent, the holders of the Secured Obligations or any party
acting as attorney for the Administrative Agent or the holders of the Secured
Obligations, shall be liable hereunder for any acts or omissions or for any
error of judgment or mistake of fact or law other than its (or any of its
Related Parties’) gross negligence, willful misconduct or bad faith.  The rights and remedies of the Administrative
Agent and the holders of the Secured Obligations under this Agreement shall be
cumulative and not exclusive of any other right or remedy which the
Administrative Agent may have.


 


5

















 


(c)           Retention of Collateral.  In addition to the rights and remedies
hereunder, the Administrative Agent may, in compliance with Sections 9-620
and 9-621 of the UCC or otherwise complying with the requirements of applicable
Law of the relevant jurisdiction, accept or retain the Collateral in
satisfaction of the Secured Obligations. 
Unless and until the Administrative Agent shall have provided such
notices, however, the Administrative Agent shall not be deemed to have retained
any Collateral in satisfaction of any Secured Obligations for any reason.


 


(d)           Deficiency.  In the event that the proceeds of any sale,
collection or realization are insufficient to pay all amounts to which the
Administrative Agent or the holders of the Secured Obligations are legally
entitled, the Obligor shall be liable for the deficiency, together with
interest thereon at the Default Rate, together with the reasonable and
documented out-of-pocket costs of collection and the reasonable and documented
fees, charges and disbursements of counsel. 
Any surplus remaining after the full payment and satisfaction of the
Secured Obligations (other than contingent indemnification obligations) shall
be returned to the Obligor or to whomsoever a court of competent jurisdiction
shall determine to be entitled thereto.


 


                9.             Rights
of the Administrative Agent.


 


(a)           Power
of Attorney.  In addition to other
powers of attorney contained herein, each Obligor hereby designates and
appoints the Administrative Agent, on behalf of the holders of the Secured
Obligations, and each of its designees or agents, as attorney-in-fact of such
Obligor, irrevocably and with power of substitution, with authority to take any
or all of the following actions for the purposes of collecting any Collateral
and enforcing any other right in respect thereof upon the occurrence and during
the continuance of an Event of Default, each as the Administrative Agent may
determine to be reasonably necessary or appropriate:


 


(i)            to endorse, receive, accept and collect all
checks, drafts, other payment orders and instruments representing or included
in the Collateral or representing any payment, dividend or distribution
relating to any Collateral or to take any other action to enforce, collect or
compromise any of the Collateral;


 


(ii)           to transfer any Collateral (including converting
physical certificates to book-entry holdings) into the name of the
Administrative Agent or its nominee or any broker-dealer (which may be an
affiliate of the Administrative Agent) and to execute any control agreement
covering any Collateral on the Obligor’s behalf and as attorney-in-fact for the
Obligor in order to perfect the Administrative Agent’s first priority and
continuing security interest in the Collateral and in order to provide the
Administrative Agent with control of the Collateral, and the Obligor’s
signature on this Agreement or other authentication of this Agreement shall
constitute an irrevocable direction by the Obligor to any bank, custodian,
broker dealer, any other Securities Intermediary or commodity intermediary
holding any Collateral or any issuer of any letters of credit to comply with
any instructions or entitlement orders, of the Administrative Agent without
further consent of the Obligor;


 


(iii)          to participate in any recapitalization,
reclassification, reorganization, consolidation, redemption, stock split,
merger or liquidation of any issuer of securities which constitute Collateral,
and in connection therewith the Administrative Agent may deposit or surrender
control of the Collateral, accept money or other property in exchange for the
Collateral, and take such action as it deems proper in connection therewith,
and any money or property received on account of or in exchange for the
Collateral shall be applied to the Secured Obligations or held by the
Administrative Agent thereafter as Collateral pursuant to the provisions
hereof;


 


6

















 


(iv)          to exercise any right, privilege or option
pertaining to any Collateral, but the Administrative Agent has no obligation to
do so;


 


(v)           to file any claims, take any actions or
institute any proceedings which the Administrative Agent determines to be
necessary or appropriate to collect or preserve the Collateral or to enforce
the Administrative Agent’s rights with respect to the Collateral;


 


(vi)          to execute in the name or otherwise
authenticate on behalf of the Obligor any record reasonably believed necessary
or appropriate by the Administrative Agent for compliance with laws, rules or
regulations applicable to any Collateral, or in connection with exercising the
Administrative Agent’s rights under this Agreement;


 


(vii)         to make any compromise or settlement it deems
desirable or proper with reference to the Collateral;


 


(viii)        to do and take any and all actions with respect
to the Collateral and to perform any of the Obligor’s obligations under this
Agreement; and


 


(ix)           to execute any documentation reasonably
believed necessary by the Administrative Agent for compliance with Rule 144
or any other restrictions, laws, rules or regulations applicable to any
Collateral hereunder that constitutes restricted or control securities under
the securities laws.


 


This power of attorney is
a power coupled with an interest and shall be irrevocable until such time as
the Secured Obligations arising under the Loan Documents (other than contingent
indemnification obligations) have been paid in full, the Commitments have
expired or been terminated and no Letters of Credit remain outstanding.  The Administrative Agent shall be under no
duty to exercise or withhold the exercise of any of the rights, powers,
privileges and options expressly or implicitly granted to the Administrative
Agent in this Agreement, and shall not be liable for any failure to do so or
any delay in doing so.  The
Administrative Agent shall not be liable for any act or omission or for any
error of judgment or any mistake of fact or law in its individual capacity or
its capacity as attorney-in-fact except acts or omissions resulting from its or
any of its Related Parties’ gross negligence, willful misconduct or bad
faith.  This power of attorney is
conferred on the Administrative Agent solely to protect, preserve and realize
upon its security interest in the Collateral.


 


(b)           Assignment
by the Administrative Agent. The Administrative Agent may from time to time
assign the Secured Obligations to a successor Administrative Agent appointed in
accordance with the Facility Agreement, and such successor shall be entitled to
all of the rights and remedies of the Administrative Agent under this Agreement
in relation thereto.


 


(c)           The
Administrative Agent’s Duty of Care. 
Other than the exercise of reasonable care to assure the safe custody of
the Collateral while being held by the Administrative Agent hereunder, the
Administrative Agent shall have no duty or liability to preserve rights
pertaining thereto, it being understood and agreed that the Obligor shall be
responsible for preservation of all rights in the Collateral, and the
Administrative Agent shall be relieved of all responsibility for the Collateral
upon surrendering it or tendering the surrender of it to the Obligor.  The Administrative Agent shall be deemed to
have exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment substantially
equal to that which the Administrative Agent accords its own property, which
shall be no less than the treatment employed by a reasonable and prudent agent
in the industry, it being understood that the Administrative Agent shall not
have responsibility for taking any necessary steps to preserve rights against
any parties with respect to any of the Collateral.  In the event of a public or private sale of
Collateral pursuant to Section 8 hereof, the Administrative Agent
shall have no responsibility for ascertaining or taking action 


 


7

















 


with respect to calls,
conversions, exchanges, maturities, tenders or other matters relating to any
Collateral, whether or not the Administrative Agent has or is deemed to have
knowledge of such matters.


 


                10.           Application
of Proceeds.  Upon the acceleration
of the Obligations pursuant to Section 9.02 of the Facility
Agreement, any payments in respect of the Secured Obligations and any proceeds
of the Collateral, when received by the Administrative Agent or any holder of
the Secured Obligations in cash or its equivalent, will be applied in reduction
of the Secured Obligations in the order set forth in Section 9.03
of the Facility Agreement.


 


                11.           Continuing
Agreement.


 


(a)           This Agreement shall
remain in full force and effect until such time as the Secured Obligations
arising under the Loan Documents (other than contingent indemnification
obligations) have been paid in full, the Commitments have expired or been
terminated and no Letters of Credit remain outstanding, at which time this
Agreement shall be automatically terminated and the Administrative Agent shall,
upon the request and at the expense of the Obligor, forthwith release all of
its liens and security interests hereunder and shall execute and deliver all
UCC termination statements and/or other documents reasonably requested by the
Obligor evidencing such termination and promptly deliver all possessory
Collateral to the Obligor or their designees and take all action reasonably
requested by the Obligor to evidence such release.


 


(b)           This Agreement shall
continue to be effective or be automatically reinstated, as the case may be, if
at any time payment, in whole or in part, of any of the Secured Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any holder of the Secured Obligations as a preference, fraudulent conveyance
or otherwise under any Debtor Relief Law, all as though such payment had not
been made; provided that in the event payment of all or any part of the Secured
Obligations is rescinded or must be restored or returned, all reasonable and
documented out-of-pocket costs and expenses (including without limitation any
reasonable and documented legal fees and disbursements) incurred by the
Administrative Agent or any holder of the Secured Obligations in defending and
enforcing such reinstatement shall be deemed to be included as a part of the
Secured Obligations.


 


                12.           Amendments;
Waivers; Modifications, etc.  This
Agreement and the provisions hereof may not be amended, waived, modified,
changed, discharged or terminated except as set forth in Section 11.01
of the Facility Agreement.


 


                13.           Successors
in Interest.  This Agreement shall be
binding upon the Obligor, its successors and assigns and shall inure, together
with the rights and remedies of the Administrative Agent and the holders of the
Secured Obligations hereunder, to the benefit of the Administrative Agent and
the holders of the Secured Obligations and their successors and permitted
assigns.


 


                14.           Notices.  All notices required or permitted to be given
under this Agreement shall be in conformance with Section 11.02 of
the Facility Agreement.


 


                15.           Counterparts.  This Agreement may be executed in any number
of counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.  It shall not be necessary in making proof of
this Agreement to produce or account for more than one such counterpart.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy or other electronic
transmission shall be effective as delivery of a manually-executed counterpart
of this Agreement.


 


                16.           Headings.  The headings of the sections hereof are
provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.


 


8

















 


                17.           Governing
Law; Submission to Jurisdiction; Venue; WAIVER OF JURY TRIAL.  The terms of Sections 11.14 and 11.15
of the Facility Agreement with respect to governing law, submission to
jurisdiction, venue and waiver of jury trial are incorporated herein by
reference, mutatis mutandis, and the parties hereto
agree to such terms.


 


                18.           Severability.  If any provision of this Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.


 


                19.           Entirety.  This Agreement, the other Loan Documents and
the other documents relating to the Secured Obligations represent the entire
agreement of the parties hereto and thereto, and supersede all prior agreements
and understandings, oral or written, if any, including any commitment letters
or correspondence relating to the Loan Documents, any other documents relating
to the Secured Obligations, or the transactions contemplated herein and therein.


 


                20.           Other
Security.  To the extent that any of
the Secured Obligations are now or hereafter secured by property other than the
Collateral (including, without limitation, real property and securities owned
by the Obligor), or by a guarantee, endorsement or property of any other
Person, then the Administrative Agent shall have the right to proceed against
such other property, guarantee or endorsement in accordance with the
documentation evidencing or creating such rights or interests, and the Administrative
Agent shall have the right, in its sole discretion, to determine which rights,
security, liens, security interests or remedies the Administrative Agent shall
at any time pursue, relinquish, subordinate, modify or take with respect
thereto, without in any way modifying or affecting any of them or the Secured
Obligations or any of the rights of the Administrative Agent or the holders of
the Secured Obligations under this Agreement, under any other of the Loan
Documents or under any other document relating to the Secured Obligations.


 


                21.           Rights
of Required Lenders.  All rights of
the Administrative Agent hereunder, if not exercised by the Administrative
Agent, may be exercised by the Required Lenders if:


 


                                (a) the
Administrative Agent has refused to exercise any rights hereunder at the
direction of the Required Lenders; or


 


                                (b) the
Administrative Agent has resigned pursuant to Section 10.06 of the
Facility Agreement and no successor Administrative Agent has been appointed by
the Required Lenders.


 


[SIGNATURE PAGES
FOLLOW]


 


9
















 


Each of the parties hereto has caused a counterpart of this Security
Agreement to be duly executed and delivered as of the date first above written.


 


	
  OBLIGOR:

  	
   

  	
  GT SOLAR INTERNATIONAL, INC., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Accepted and agreed to as of the date first above written.


 


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


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


 


[VERSION 2: 
PLEDGE OF SPECIFIC ASSETS IN SECURITIES ACCOUNT.]


 


Exhibit A to Pledge Agreement


 


Description of Collateral


 


1.     The
following financial assets, securities entitlements, investment property and/or
securities, together with all investment property, financial assets, securities
entitlements and/or securities hereafter delivered to Bank or held in or
credited to the Accounts (as hereinafter defined) in substitution therefor or
in addition thereto:
                                                                                                    
                                    
                                           
                                                          
                                                                          
                                                                                 .


 


Such financial assets, investment property, securities entitlements
and/or securities are or will be held in or credited to the accounts specified
below (the “Accounts”):


 


(a)    The
following listed account(s):


 


[ACCOUNTS HELD AT BANK OF AMERICA, N.A.:]


 


[TRUST ACCOUNT AT THE BANK, WHERE THE BANK IS
A TRUSTEE OF THE TRUST


(FOR IMA, IAA, TRUST ACCOUNT OR
CUSTODY ACCOUNT AT BANK, INSERT ONLY THE LAST 7 NUMBERS OF THE ACCOUNT
NUMBER.  FOR ALL OTHER ACCOUNTS, INSERT
THE ENTIRE ACCOUNT NUMBER).]


 


(i)       Account
number(s)/account number(s) ending in                                 
held by Bank as trustee or co-trustee for the following trust:
                        
dated
                      .


 


[OTHER SINGLE ACCOUNTS WHERE BANK IS NOT
TRUSTEE 


(FOR IMA, IAA, TRUST ACCOUNT OR
CUSTODY ACCOUNT AT BANK, INSERT ONLY THE LAST 7 NUMBERS OF THE ACCOUNT
NUMBER.  FOR ALL OTHER ACCOUNTS, INSERT
THE ENTIRE ACCOUNT NUMBER).]


 


(ii)      Account number(s)/account number(s) ending
in
                                
held by Bank as agent or custodian for Pledgor under an agreement for custody,
safekeeping, investment management, investment advisory or similar services
between Pledgor and Bank.


 

















 


[ACCOUNTS HELD AT OTHER LEGAL ENTITIES:]


 


[207 AND/OR 208 ACCOUNT MAINTAINED WITH BANC
OF AMERICA SECURITIES LLC.]


 


(iii)     Account number(s) 207-                    
and
208-                        
maintained by Banc of America Securities LLC in the name of Pledgor, for the
benefit of Pledgor, or as a collateral account of Bank for Pledgor.


 


[ALL OTHER SECURITIES ACCOUNTS.


INCLUDES:


(A)  A 209 OR A 249 BAS ACCOUNT;


 


(B)  ACCOUNTS MAINTAINED DIRECTLY WITH A
MUTUAL FUND COMPANY, INCLUDING NATIONSFUND; AND


 


(C)  ANY OTHER BROKERAGE ACCOUNT OR
SECURITIES ACCOUNT AT ANY OTHER FINANCIAL INSTITUTION.]


 


NOTE:  BAI DOES NOT ALLOW LIENS OVER SPECIFIC ASSETS
IN AN ACCOUNT.


 


[INCLUDE THE ENTIRE ACCOUNT NUMBER.]


 


(iv)    Account number(s)                                 
maintained by [Banc of America
Securities LLC][                                ] in the name of Pledgor, for the benefit
of Pledgor, or as a collateral account of Bank for Pledgor.


 


(b)    All successor and replacement accounts, regardless
of the numbers of such accounts or the offices at which such accounts are
maintained.


 


(c)    Any linked or related accounts or subaccounts held
by any affiliate of Bank of America Corporation or any entity as clearing
broker for any of the accounts.


 


2.     All rights of Pledgor in connection with the
Collateral, including any rights against any securities intermediary, any such
affiliate of Bank of America Corporation or any clearing broker in connection
with the Collateral.


 


[INCLUDE PARAGRAPH 3
IF COLLATERAL INCLUDES A 207
AND/OR 208 ACCOUNT MAINTAINED WITH BANC OF AMERICA SECURITIES.]


 


3.     All rights of Pledgor under any agreement between
Pledgor and Bank or any of its affiliates, now existing or hereafter entered
into, which provides for an interest rate, credit, commodity or equity swap,
cap, floor, collar, forward foreign exchange transaction, currency swap, cross
currency rate swap, currency option, securities puts, calls, collars, options
or forwards or any combination of, or option with respect to, these or similar
transactions, including, without limitation, any right to payment thereunder.


 


4.     All present and future income, proceeds, earnings,
increases, and substitutions from or for the Collateral of every kind and
nature, including without limitation all payments, interest, profits,
distributions, benefits, rights, options, warrants, dividends, stock dividends,
stock splits, stock rights, regulatory dividends, subscriptions, monies, claims
for money due and to become due, proceeds of any insurance on the Collateral,
shares of stock of different par value or no par value issued in substitution
or exchange for shares included in the Collateral, and all other property
Pledgor is entitled to receive on account of such Collateral, including
accounts, documents, instruments, chattel paper, and general intangibles.


 


5.     For the purposes of this Exhibit, if there is more
than one Pledgor, the term “Pledgor” shall include any one or more of the
Pledgors.


 


2

















 


[VERSION 3: 
PLEDGE OF SPECIFIC ASSETS NOT IN A SECURITIES ACCOUNT.]


 


Exhibit A to Pledge Agreement


 


Description of Collateral


 


[INCLUDE THIS VERSION OF PARAGRAPH 1 FOR
SPECIFIC CERTIFICATED STOCK HELD AT THE BANK. 
DO NOT USE WHEN COLLATERAL SECURES A CONSUMER PURPOSE LOAN OR GUARANTY
OF A CONSUMER PURPOSE LOAN GOVERNED BY CALIFORNIA LAW.]


 


1.     shares of [class        ][common][preferred] stock of
                      
evidenced in whole or in part by certificate #                                             .


 


[INCLUDE THIS VERSION OF PARAGRAPH 1 FOR
SPECIFIC BONDS OR OTHER SPECIFIC ASSETS HELD AT THE BANK.  DO NOT USE WHEN COLLATERAL SECURES A CONSUMER
PURPOSE LOAN OR GUARANTY OF A CONSUMER PURPOSE LOAN GOVERNED BY CALIFORNIA
LAW.]


 


1.     [                                        ]


 


[INCLUDE PARAGRAPH 2 FOR HEDGE FUNDS OTHER
THAN BACAP HEDGE FUNDS APPROVED FOR COLLATERAL VALUE (BACAP HEDGE FUNDS APPROVED FOR COLLATERAL
VALUE INCLUDE: BACAP MULTI-STRATEGY HEDGE FUND, LLC (SERIES I); BACAP
ALTERNATIVE MONTAGE FUND, LLC; BA
MULTI-STRATEGY FUND, LLC; BA HEDGE FUND DIRECT, L.P. - RENAISSANCE
INSTITUTIONAL EQUITIES FUND) OR AN INTEREST IN A LIMITED PARTNERSHIP HELD BY A
LIMITED PARTNER THAT IS GIVEN COLLATERAL VALUE IN THE APPROVAL DOCUMENT.]


 


2.     All of the Pledgor’s present or hereafter acquired
right, title and interest in the
                
Partnership, and any and all payments, dividends or distributions of whatever
kind or character, whether in cash or other rights or property, at any time
made, owing or payable to the Pledgor in respect of or on account of Pledgor’s
present or hereafter acquired interests in the foregoing partnership(s),
whether due or to become due and whether representing profits, dividends,
distributions pursuant to complete or partial liquidation or dissolution of the
partnership(s), distributions pursuant to any complete or partial liquidation
or withdrawal of any interests in the partnership(s), repayment or other return
of capital contributions.


 


[INCLUDE PARAGRAPH 3
FOR EATON VANCE FUND APPROVED FOR COLLATERAL VALUE THAT IS GIVEN COLLATERAL
VALUE IN THE APPROVAL DOCUMENT.  INSERT
THE NAME OF THE EATON VANCE FUND.  EATON VANCE
FUNDS APPROVED FOR COLLATERAL VALUE INCLUDE: BELAIR CAPITAL FUND, BELBROOK
CAPITAL FUND, BELCREST CAPITAL FUND, BELMAR CAPITAL FUND, BELPORT CAPITAL FUND,
BELROSE CAPITAL FUND, BELTERRA CAPITAL FUND, BELWATER CAPITAL FUND.]


 


3.     All of Pledgor’s right, title and interest in and
to the [                                        ]  [and]  [Belair
Capital Fund LLC]  [and] [Belbrook Capital Fund LLC]
[and]  [Belcrest Capital Fund LLC]  [and]  [Belmar
Capital Fund LLC]  [and]
[Belport Capital Fund LLC]  [and]  [Belrose
Capital Fund LLC] [and]  [Belterra
Capital Fund LLC]  [and]
[Belwater Capital Fund LLC] (collectively, the “Interest”), whether
now owned or hereafter acquired, including without limitation, (i) Pledgor’s
interest in the profits and losses generated by the Interest, any right to
receive distributions therefrom or to make redemptions of such Interest or
tender thereof, (ii) all rights, privileges, authority and power of
Pledgor as owner and holder of the Interest, including all contract rights
related thereto, (iii) any documents or certificates representing or evidencing
the Interest, (iv) all of Pledgor’s interests in any account holding the
Interest including without limitation, any account at Investor’s Bank and Trust
Company and all rights against any such entity holding such an account, and (v) all
distributions, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for the
Interest, in each case, whether now existing or hereafter arising, whether at
law or in equity.


 


[INCLUDE PARAGRAPH 4 IF COLLATERAL INCLUDES BACAP HEDGE FUND
APPROVED FOR COLLATERAL VALUE THAT IS GIVEN COLLATERAL VALUE IN THE APPROVAL
DOCUMENT.  BACAP HEDGE FUND APPROVED FOR
COLLATERAL VALUE INCLUDE: BACAP MULTI-STRATEGY HEDGE FUND, LLC (SERIES
I); BACAP ALTERNATIVE MONTAGE FUND, LLC; BA MULTI-STRATEGY FUND, LLC; BA HEDGE
FUND DIRECT, L.P. - RENAISSANCE INSTITUTIONAL EQUITIES FUND.]


 


4.     All membership and other right, title and interest
in and to the Pledgor’s investment in [                                    ]  [and]  [Series I
of BACAP Multi-Strategy Hedge Fund, LLC]
[and]  [BACAP
Alternative Montage Fund, LLC]  


 


3

















 


[and]  [BA
Multi-Strategy Fund, LLC]  [and]
[BA Hedge Fund Direct, L.P. -
Renaissance Institutional Equities Fund]
(collectively, the “Interest”), including without limitation, (i) Pledgor’s
interest in the profits and losses generated by the Interest, any right to
receive distributions therefrom or to make redemptions of such Interest or
tender thereof, (ii) all rights, privileges, authority and power of
Pledgor as owner and holder of the Interest, including all contract rights
related thereto, (iii) any documents or certificates representing or
evidencing the Interest, and (iv) all distributions, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for the Interest, in each case, whether now
existing or hereafter arising, whether at law or in equity.


 


5.     All present and future income, proceeds, earnings,
increases, and substitutions from or for the Collateral of every kind and
nature, including without limitation all payments, interest, profits,
distributions, benefits, rights, options, warrants, dividends, stock dividends,
stock splits, stock rights, regulatory dividends, subscriptions, monies, claims
for money due and to become due, proceeds of any insurance on the Collateral,
shares of stock of different par value or no par value issued in substitution
or exchange for shares included in the Collateral, and all other property
Pledgor is entitled to receive on account of such Collateral, including
accounts, documents, instruments, chattel paper, and general intangibles.


 


6.     For the purposes of this Exhibit, if there is more
than one Pledgor, the term “Pledgor” shall include any one or more of the
Pledgors.


 


4

















 


[VERSION 4: 
CALIFORNIA-SPECIFIC PROVISION. 
THIS PROVISION SHOULD BE USED WHEN (1) THE PLEDGE AGREEMENT SECURES
A CONSUMER LOAN OR A GUARANTY OF A CONSUMER LOAN , (2) SUCH CONSUMER LOAN
OR A GUARANTY OF A CONSUMER LOAN IS SECURED WITH SPECIFIC ASSETS NOT HELD IN A
SECURITIES ACCOUNT, AND (3) THE BORROWER, PLEDGOR OR GUARANTOR RESIDES IN
CALIFORNIA, OR THE LOAN AGREEMENT (OR PROMISSORY NOTE), PLEDGE AGREEMENT OR
GUARANTY IS GOVERNED BY CALIFORNIA LAW.]


 


Exhibit A to Pledge Agreement


 


Description of Collateral


 


This Exhibit A is a part of the Pledge Agreement dated
                            
between                                   
(Pledgor) and Bank of America, N.A. (Bank). 
In addition, this Exhibit A is a part of the following:


 


[CHECK ALL
THAT APPLY.]


 


 ̈            Promissory Note dated
                          ,
executed by [Pledgor]
[                                      ] in favor of Bank, in the original principal amount of
$                              .


 


 ̈            Loan Agreement dated
                            
between [Pledgor]
[                                  ] and Bank.


 


 ̈            [Name of Guaranty]
dated                             
signed by [Pledgor]
[                                  ] in favor of Bank.


 


This Exhibit A will remain in effect until it is replaced with a
new Exhibit A signed by each of the parties named above.


 


DESCRIPTION OF COLLATERAL


 


[SELECT THE
APPROPRIATE COLLATERAL DESCRIPTION.]


 


[FOR SPECIFIC
CERTIFICATED SECURITIES HELD AT BANK:]


 


	
   

  	
   

  	
   

  	
   

  	
  Number of

  	
   

  	
  Certificate

  
	
  Issuer

  	
   

  	
  Class

  	
   

  	
  Shares

  	
   

  	
  Numbers

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


[DESCRIBE THE
SECURITIES.]


 


[FOR HEDGE FUNDS OTHER THAN BACAP HEDGE FUNDS
APPROVED FOR COLLATERAL VALUE (BACAP
HEDGE FUNDS APPROVED FOR COLLATERAL VALUE INCLUDE:  BACAP MULTI-STRATEGY HEDGE
FUND, LLC (SERIES I); BACAP ALTERNATIVE MONTAGE FUND, LLC; BA MULTI-STRATEGY
FUND, LLC; BA HEDGE FUND DIRECT, L.P. - RENAISSANCE INSTITUTIONAL
EQUITIES FUND) OR AN INTEREST IN A LIMITED PARTNERSHIP HELD BY A LIMITED
PARTNER THAT IS GIVEN COLLATERAL VALUE
IN THE APPROVAL DOCUMENT:]


 


All of the Pledgor’s present or hereafter acquired right, title and
interest in the
            
Partnership, and any and all payments, dividends or distributions of whatever
kind or character, whether in cash or other rights or property, at any time
made, owing or payable to the Pledgor in respect of or on account of Pledgor’s
present or hereafter acquired interests in the foregoing partnership(s),
whether due or to become due and whether representing profits, dividends,
distributions pursuant to complete or partial liquidation or dissolution of the
partnership(s), distributions pursuant to any complete or partial liquidation
or withdrawal of any interests in the partnership(s), repayment or other return
of capital contributions.


 


[FOR AN EATON VANCE FUND APPROVED FOR COLLATERAL VALUE
THAT IS GIVEN COLLATERAL VALUE IN THE APPROVAL DOCUMENT.  INSERT THE NAME OF THE EATON VANCE FUND.  EATON VANCE FUNDS APPROVED FOR COLLATERAL
VALUE INCLUDE: BELAIR
CAPITAL FUND, BELBROOK CAPITAL FUND, BELCREST CAPITAL FUND, BELMAR CAPITAL
FUND, BELPORT CAPITAL FUND, BELROSE CAPITAL FUND, BELTERRA CAPITAL FUND,
BELWATER CAPITAL FUND.]


 


5

















 


All of the
Pledgor’s right, title and interest in and to the [                                        ]  [and]  [Belair
Capital Fund LLC] [and] [Belbrook Capital
Fund LLC]  [and]
[Belcrest Capital Fund LLC]  [and]  [Belmar
Capital Fund LLC] [and]  [Belport
Capital Fund LLC] [and]  [Belrose
Capital Fund LLC]  [and]
[Belterra Capital Fund LLC]  [and]  [Belwater
Capital Fund LLC] (collectively,
the “Interest”), whether now owned or hereafter acquired, including without limitation,
(i) Pledgor’s interest in the profits and losses generated by the
Interest, any right to receive distributions therefrom or to make redemptions
of such Interest or tender thereof, (ii) all rights, privileges, authority
and power of Pledgor as owner and holder of the Interest, including all
contract rights related thereto, (iii) any documents or certificates
representing or evidencing the Interest, (iv) all of Pledgor’s interests
in any account holding the Interest including without limitation, any account
at Investor’s Bank and Trust Company and all rights against any such entity
holding such an account, and (v) all distributions, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for the Interest, in each case, whether now existing
or hereafter arising, whether at law or in equity.


 


[FOR A BACAP HEDGE FUND APPROVED FOR COLLATERAL VALUE
THAT IS GIVEN COLLATERAL VALUE IN THE APPROVAL DOCUMENT.  INSERT THE COMPLETE NAME OF THE BACAP HEDGE
FUND.  BACAP HEDGE
FUNDS APPROVED FOR COLLATERAL VALUE INCLUDE:  BACAP MULTI-STRATEGY HEDGE FUND, LLC (SERIES I),
BACAP ALTERNATIVE MONTAGE FUND, LLC, BA MULTI-STRATEGY FUND, LLC, BA HEDGE FUND
DIRECT, L.P. - RENAISSANCE INSTITUTIONAL EQUITIES FUND.]


 


All membership and other right, title and interest in and to the
Pledgor’s investment in [                                    ]  [and]  [Series I
of BACAP Multi-Strategy Hedge Fund, LLC]
[and]  [BACAP
Alternative Montage Fund, LLC]  [and]
[BA Multi-Strategy Fund, LLC]  [and]  [BA
Hedge Fund Direct, L.P. - Renaissance Institutional Equities Fund] (collectively, the “Interest”), including
without limitation, (i) Pledgor’s interest in the profits and losses
generated by the Interest, any right to receive distributions therefrom or to
make redemptions of such Interest or tender thereof, (ii) all rights,
privileges, authority and power of Pledgor as owner and holder of the Interest,
including all contract rights related thereto, (iii) any documents or
certificates representing or evidencing the Interest, and (iv) all
distributions, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for the
Interest, in each case, whether now existing or hereafter arising, whether at
law or in equity.


 


[ALWAYS INCLUDE THE FOLLOWING SENTENCE.]


 


The
Collateral includes all present and future income, proceeds, earnings,
increases, and substitutions from or for the Collateral of every kind and
nature, including without limitation all payments, interest, profits,
distributions, benefits, rights, options, warrants, dividends, stock dividends,
stock splits, stock rights, regulatory dividends, subscriptions, monies, claims
for money due and to become due, proceeds of any insurance on the Collateral,
shares of stock of different par value or no par value issued in substitution
or exchange for shares included in the Collateral, and all other property
Pledgor is entitled to receive on account of such Collateral, including
accounts, documents, instruments, chattel paper, and general intangibles.


 


This Exhibit A is dated
                                  .


 


 ̈            If this box is
checked, this Exhibit A replaces a prior Exhibit A [EACH REPLACEMENT EXHIBIT A SHOULD LIST ALL
COLLATERAL SUBJECT TO THE PLEDGE AGREEMENT AS OF THE EFFECTIVE DATE OF
REPLACEMENT ON A CUMULATIVE BASIS.]


 


 


	
  BANK OF AMERICA, N.A.

  	
  [SIGNATURE BLOCK FOR PLEDGOR]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
  X

  	
   

  
	
  Printed Name

  	
   

  	
   

  	
  Printed Name

  	
   

  
	
  Title

  	
   

  	
   

  	
   

  
								



 


[ADD SIGNATURE BLOCKS FOR EACH PARTY LISTED
ABOVE, I.E. BORROWER OR GUARANTOR.]


 


6

















 


[Use this version of Schedule 1 when (1) the
Collateral is Multiple Selects and Portfolio Foundation Accounts held in PACE
and (2) the Pledge Agreement contains Collateral Maintenance provisions. Only
the first paragraph and Pledgor signature block should be completed by the
Document Administrator when the Pledge Agreement is prepared.  There is a separate Schedule 1 to Exhibit A
to Pledge Agreement which will be completed if Pledgor adds subaccount(s),
deletes subaccount(s) and/or changes advance/call of subaccount(s). ]


 


SCHEDULE 1 to Exhibit A to
PLEDGE AGREEMENT


 


FORM OF PLEDGE CERTIFICATE


 


Reference is
hereby made to that certain Pledge Agreement dated as of
                        ,
           (the “Pledge
Agreement”), between the undersigned (Pledgor) and Bank.  This Pledge Certificate is delivered pursuant
to paragraph 1(a) of Exhibit A to Pledge Agreement (Description of
Collateral).  All capitalized terms used
and not otherwise defined herein shall have their respective meanings as set
forth in the Pledge Agreement.


 


Pledgor hereby certifies that concurrently
with the delivery of this Pledge Certificate (check appropriate box(es)):


 


o
Pledgor is designating the following account(s) held by Bank
(collectively, the “Additional Collateral Accounts”) as Collateral with the
corresponding Advance Percentage(s) and Margin Call Percentage(s):


 


	
   

  	
   

  	
  Advance

  Percentage

  	
   

  	
  Margin Call

  Percentage

  	
   

  
	
  Accounts with Bank of America, N.A. with
  acct. nos. ending as follows:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a)

  	
   

  	
   

  	
  %

  	
   

  	
  %

  
	
  b)

  	
   

  	
   

  	
  %

  	
   

  	
  %

  
	
  c)

  	
   

  	
   

  	
  %

  	
   

  	
  %

  



 


and/or


 


o
Pledgor is withdrawing the following account(s) held by Bank currently
constituting Collateral:


 


	
  Accounts with Bank of America, N.A. with
  acct. nos. ending as follows:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  b)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c)

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


REMAINDER OF PAGE INTENTIONALLY LEFT BLANK


 


7
















 


and/or


 


o Pledgor is modifying the Advance Percentage
and Margin Call Percentage of the following account(s) held by Bank as
follows:


 


	
   

  	
   

  	
  Advance

  Percentage

  	
   

  	
  Margin Call

  Percentage

  	
   

  
	
  Accounts
  with Bank of America, N.A. with acct. nos. ending as follows:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a)

  	
   

  	
   

  	
  %

  	
   

  	
  %

  
	
  b)

  	
   

  	
   

  	
  %

  	
   

  	
  %

  
	
  c)

  	
   

  	
   

  	
  %

  	
   

  	
  %

  



 


Pledgor hereby
irrevocably and unconditionally grants a security interest in, a lien upon and
the right of set-off against, and assigns and transfers to Bank the above
listed Additional Collateral Accounts and all property and assets held,
maintained or administered therein, or credited thereto, and all proceeds
thereof to secure the Indebtedness. Pledgor acknowledges and agrees that the
Collateral covered by and further described in the Pledge Agreement includes,
without limitation, such Additional Collateral Accounts, each of which shall
constitute a “CSG Account” as defined in the Pledge Agreement.  Pledgor hereby represents and warrants that
all of the representations and warranties contained in the Pledge Agreement are
true and correct in all material respects, including with respect to the
Additional Collateral Accounts with respect to which the Advance Percentage(s) and
Margin Call Percentage(s) are modified above, on the date hereof as though
made as of the date hereof.  Pledgor
acknowledges and agrees that each Additional Collateral Account listed above
shall be covered by, and subject to, each letter of direction regarding any
Account constituting Collateral and each Disclosure, Release and
Indemnification and/or Waiver of Conflict of Interest, Acknowledgement and
Release previously executed by Pledgor in favor of Bank with respect to each
such Account. Except as expressly set forth above, the Pledge Agreement shall
continue in full force and effect and is herby ratified and affirmed.


 


Pledgor further
acknowledges that this Pledge Certificate is not effective until countersigned
by Bank below.


 


[CALIFORNIA-specific
provision.  This provision should be used
when (i) the Pledge Agreement secures a consumer loan or a guaranty of a
consumer loan and (ii) the borrower, pledgor or guarantor resides in
California or the loan agreement (or promissory note), pledge agreement or
guaranty is governed by California law.]


 


This Schedule 1 also
constitutes an amendment and supplement to the description of collateral in the
following:


 


[Check all that apply.]


 


 ̈            Promissory
Note dated
                          ,
executed by [Pledgor]
[                                      ] in favor of Bank, in the original principal amount of
$                              .


 


 ̈            Loan
Agreement dated
                            
between [Pledgor]
[                                  ] and Bank.


 


 ̈            [Name of Guaranty] dated
                            
signed by [Pledgor]
[                                  ] in favor of Bank.


 


[End of CALIFORNIA provision.]


 


8

















 


The parties have executed
this Pledge Certificate as of
                                          ,
          .


 


[If this Agreement
is governed by the law of CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, GEORGIA,
MAINE, MARYLAND, MASSACHUSETTS, NEW YORK or VIRGINIA, use this alternate:]


 


The parties executed this
Pledge Certificate as of
                              ,
          , intending to create
an instrument executed under seal.


 


[If this Agreement
is governed by the law of PENNSYLVANIA, use this alternate:]


 


The parties executed this
Pledge Certificate as of
                              ,
          , intending to be
legally bound.


 


[The following
states require the word “(Seal)” after the signature of each Pledgor:


CONNECTICUT,
DELAWARE, DISTRICT OF COLUMBIA, GEORGIA, MAINE, MARYLAND, MASSACHUSETTS, NEW
YORK, NORTH CAROLINA, PENNSYLVANIA, VIRGINIA.]


 


[For MAINE,
add a witness signature next to each Pledgor’s signature under the heading: “Attested
to:”.]


 


[For MASSACHUSETTS,
add a witness signature next to each Pledgor’s signature under the heading: “Witness:”.]


 


[Use
this signature block if Pledgor is a business entity:]


 


	
   

  	
  PLEDGOR:

  
	
   

  	
   

  
	
   

  	
   

  
	
  [Attested
  to:][Witness:]

  	
  [Name of Pledgor]  

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  [(Seal)]

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
						



 


 


[Use
this signature block if Pledgor is an individual:]


	
  [Attested
  to:][Witness:]

  	
  PLEDGOR:

  
	
   

  	
   

  	
   

  	
  [(Seal)]

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Printed Name

  



 


 


	
   

  	
  BANK:

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Printed Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


9

















 


[Use this
version of Schedule 1 when (1) the Collateral is Multiple Selects and
Portfolio Foundation Accounts held in PACE and (2) the Pledge Agreement
does not include Collateral Maintenance provisions. Only the first paragraph
and Pledgor signature block should be completed by the Document Administrator
when the Pledge Agreement is prepared. 
There is a separate Schedule 1 to Exhibit A to Pledge Agreement
(Word document) which will be completed if Pledgor adds subaccount(s), deletes
subaccount(s) and/or changes advance/call of subaccount(s).]


 


SCHEDULE 1 to Exhibit A
to PLEDGE AGREEMENT


 


FORM OF
PLEDGE CERTIFICATE


 


Reference is hereby made
to that certain Pledge Agreement dated as of
                  
(the “Pledge Agreement”), between the undersigned (Pledgor) and Bank.  This Pledge Certificate is delivered pursuant
to paragraph 1(a) of Exhibit A to Pledge Agreement (Description of
Collateral).  All capitalized terms used
and not otherwise defined herein shall have their respective meanings as set
forth in the Pledge Agreement.


 


Pledgor hereby certifies
that concurrently with the delivery of this Pledge Certificate (check
appropriate box(es)):


 


                o
Pledgor is designating the following account(s) held by Bank
(collectively, the “Additional Collateral Accounts”) as Collateral:


 


	
  Accounts with Bank of
  America, N.A. with acct. nos. ending as follows:

  
	
   

  
	
  a)

  
	
  b)

  
	
  c)

  



 


                and/or


 


                o
Pledgor is withdrawing the following account(s) held by Bank currently
constituting Collateral:


 


	
  Accounts with Bank of
  America, N.A. with acct. nos. ending as follows:

  
	
   

  
	
  a)

  
	
  b)

  
	
  c)

  



 


                Pledgor hereby
irrevocably and unconditionally grants a security interest in, a lien upon and
the right of set-off against, and assigns and transfers to Bank the above
listed Additional Collateral Accounts and all property and assets held,
maintained or administered therein, or credited thereto, and all proceeds
thereof to secure the Indebtedness. Pledgor acknowledges and agrees that the
Collateral covered by and further described in the Pledge Agreement includes,
without limitation, such Additional Collateral Accounts, each of which shall
constitute a “CSG Account” as defined in the Pledge Agreement.  Pledgor hereby represents and warrants that
all of the representations and warranties contained in the Pledge Agreement are
true and correct in all material respects on the date hereof as though made as
of the date hereof.  Pledgor acknowledges
and agrees that each Additional Collateral Account listed above shall be
covered by, and subject to, each letter of direction regarding any Account
constituting Collateral and each Disclosure, Release and Indemnification and/or
Waiver of Conflict of Interest, Acknowledgement and Release previously executed
by Pledgor in favor of Bank with respect to each such Account. Except as
expressly set forth above, the Pledge Agreement shall continue in full force
and effect and is herby ratified and affirmed.


 


Pledgor further
acknowledges that this Pledge Certificate is not effective until countersigned
by Bank below.


 


10

















 


[CALIFORNIA-specific
provision.  This provision should be used
when (i) the Pledge Agreement secures a consumer loan or a guaranty of a
consumer loan and (ii) the borrower, pledgor or guarantor resides in
California or the loan agreement (or promissory note), pledge agreement or
guaranty is governed by California law.]


 


This Schedule 1 also
constitutes an amendment and supplement to the description of collateral in the
following:


 


[Check all that apply.]


 


 ̈            Promissory Note dated
                          ,
executed by [Pledgor]
[                                      ] in favor of Bank, in the original principal amount of
$                              .


 


 ̈            Loan Agreement dated
                            
between [Pledgor]
[                                  ] and Bank.


 


 ̈            [Name of
Guaranty] dated
                            
signed by [Pledgor]
[                                  ] in favor of Bank.


 


[End of CALIFORNIA provision.]


 


The parties have executed
this Pledge Certificate as of
                                          ,
          .


 


[If this Agreement
is governed by the law of CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA,GEORGIA,
MAINE, MARYLAND, MASSACHUSETTS, NEW YORK or VIRGINIA, use this alternate:]


 


The parties executed this
Pledge Certificate as of
                              ,
          , intending to
create an instrument executed under seal.


 


[If this Agreement
is governed by the law of PENNSYLVANIA, use this alternate:]


 


The parties executed this
Pledge Certificate as of
                              ,
          , intending to be
legally bound.


 


[The
following states require the word “(Seal)” after the signature of each Pledgor:


CONNECTICUT,
DELAWARE, DISTRICT OF COLUMBIA, GEORGIA, MAINE, MARYLAND, MASSACHUSETTS, NEW
YORK, NORTH CAROLINA, PENNSYLVANIA, VIRGINIA.]


 


[For MAINE,
add a witness signature next to each Pledgor’s signature under the heading: “Attested
to:”.]


 


[For MASSACHUSETTS,
add a witness signature next to each Pledgor’s signature under the heading: “Witness:”.]


 


[Use
this signature block if Pledgor is a business entity:]


 


	
   

  	
  PLEDGOR:

  
	
   

  	
   

  
	
   

  	
   

  
	
  [Attested
  to:][Witness:]

  	
  [Name of Pledgor]  

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  [(Seal)]

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
						



 


[Use
this signature block if Pledgor is an individual:]


	
  [Attested
  to:][Witness:]

  	
  PLEDGOR:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [(Seal)]

  
	
   

  	
  Signature

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Printed Name

  
				



 


11

















 


	
   

  	
  BANK:

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Printed Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


12

















 


Exhibit 11.06-1


 


FORM OF ASSIGNMENT AND ASSUMPTION


 


This
Assignment and Assumption (this “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee]
(the “Assignee”).  Capitalized
terms used but not defined herein shall have the meanings given to them in the
Credit Agreement identified below (the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.


 


For an agreed consideration,
the Assignor hereby irrevocably sells and assigns to the Assignee, and the
Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit
Agreement, as of the Effective Date inserted by the Administrative Agent as
contemplated below (i) all of the Assignor’s rights and obligations as a
Lender under the Credit Agreement and any other documents or instruments delivered
pursuant thereto to the extent related to the amount and percentage interest
identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including, without
limitation, Letters of Credit and Guarantees included in such facilities) and (ii) to
the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to
herein collectively as, the “Assigned Interest”).  Such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.


 


	
  1.

  	
   

  	
  Assignor:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Assignee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [and
  is an Affiliate/Approved Fund of [identify Lender](1)]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Borrower:

  	
   

  	
  GT
  Solar International, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Administrative
  Agent:

  	
   

  	
  Bank
  of America, N.A.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Credit
  Agreement:

  	
   

  	
  Credit
  Agreement dated as of July 29, 2008 among the Borrower, the Lenders
  party thereto, and the Administrative Agent

  



 






(1) Select as applicable.


 

















 


6.             Assigned Interest:


 


	
  Facility Assigned

  	
   

  	
  Aggregate Amount of

  Commitment/Loans

  for all Lenders*

  	
   

  	
  Amount of

  Commitment/Loans

  Assigned*

  	
   

  	
  Percentage Assigned of

  Commitment/Loans(2)

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  



 


[7.            Trade Date:                           ](3)


 


Effective
Date:  
                          
      , 20      
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE
OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


[SIGNATURE PAGES FOLLOW]


 






* Amount to be adjusted by the
counterparties to take into account any payments or prepayments made between
the Trade Date and the Effective Date.


(2) Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all
Lenders thereunder.


(3) To
be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.


 


2

















 


The
terms set forth in this Assignment and Assumption are hereby agreed to:


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


	
  [Consented
  to and](4) Accepted:

  
	
   

  
	
  BANK OF AMERICA, N.A. as Administrative Agent

  
	
   

  
	
  By

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  
	
  [Consented
  to:](5)

  
	
   

  
	
  [BANK
  OF AMERICA, N.A., as L/C Issuer]

  
	
   

  
	
  By

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  
	
  [GT
  SOLAR INTERNATIONAL, INC., a Delaware corporation]

  
	
   

  
	
  By

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 






(4) To
be added only if the consent of the Administrative Agent is required by the
terms of the Credit Agreement.


(5) To
be added only if the consent of the Borrower and/or other parties (e.g. L/C
Issuer) is required by the terms of the Credit Agreement.


 


3

















 


ANNEX 1


 


STANDARD TERMS AND
CONDITIONS FOR


ASSIGNMENT AND ASSUMPTION


 


1.  Representations and Warranties.


 


1.1.  Assignor.  The Assignor (a) represents and warrants
that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.


 


                1.2.  Assignee.  The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets the requirements to be an assignee
under Section 11.06(b)(iii), (v) and (vi) of the Credit
Agreement (subject to such consents, if any, as may be required under Section 11.06(b)(iii) of
the Credit Agreement), (iii) from and after the Effective Date, it shall
be bound by the provisions of the Credit Agreement as a Lender thereunder and,
to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by the Assigned Interest and either it, or the
Person exercising discretion in making its decision to acquire the Assigned
Interest, is experienced in acquiring assets of such type, (v) it has
received a copy of the Credit Agreement, and has received or has been accorded
the opportunity to receive copies of the most recent financial statements
delivered pursuant to Section 7.01 thereof, as applicable, and such other
documents and information as it deems appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest, (vi) it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest, and (vii) if it is a Foreign Lender,
attached hereto is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Assignee;
and (b) agrees that (i) it will, independently and without reliance
on the Administrative Agent, the Assignor or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.


 


2.  Payments.  From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts which have accrued to but excluding the Effective Date
and to the Assignee for amounts which have accrued from and after the Effective
Date.


 


3.  General Provisions. This Assignment
and Assumption shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns.  This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument.  Delivery of an executed
counterpart of a signature page of this Assignment and Assumption by
telecopy or electronic 


 

















 


transmission
shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption.  This
Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of New York without regard to conflict of laws
principles thereof.


 


2

















 


Exhibit 11.06-2


 


FORM OF ADMINISTRATIVE QUESTIONNAIRE


 


See Attached.