Exhibit 10(a)(1)


 


364-DAY REVOLVING CREDIT AGREEMENT


 


 


Dated as
of July 30, 2003


 


among


 


ALLTEL CORPORATION,


as the Borrower,


 


BANK OF AMERICA, N.A.,


as the
Administrative Agent and

L/C Issuer,


 


 


MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED,


as the Syndication
Agent,


 


 


BANC OF
AMERICA SECURITIES LLC and MERRILL LYNCH, PIERCE, FENNER &


SMITH
INCORPORATED,


as the Joint Lead
Arrangers and Joint Book Runners,


 


 


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


BANK
ONE, NA, and JPMORGAN CHASE BANK,


as the Co-Documentation
Agents,


 


 


and


 


THE OTHER LENDERS PARTY HERETO


 


 


$500,000,000


 

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  
	
   

  	
   

  
	
  ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS

  
	
  1.01

  	
  Defined Terms.

  
	
  1.02

  	
  Other Interpretive
  Provisions.

  
	
  1.03

  	
  Accounting Terms.

  
	
  1.04

  	
  Rounding.

  
	
  1.05

  	
  References to Agreements
  and Laws.

  
	
  1.06

  	
  Letter of Credit Amounts.

  
	
   

  	
   

  
	
  ARTICLE
  II. THE COMMITMENTS AND CREDIT EXTENSIONS

  
	
  2.01

  	
  Loans.

  
	
  2.02

  	
  Borrowings, Conversions, and
  Continuations of Loans.

  
	
  2.03

  	
  Letters of Credit.

  
	
  2.04

  	
  Prepayments.

  
	
  2.05

  	
  Reduction or Termination of
  Commitments.

  
	
  2.06

  	
  Change of Control.

  
	
  2.07

  	
  Repayment
  of Outstanding Amount of all Loans.

  
	
  2.08

  	
  Interest.

  
	
  2.09

  	
  Fees.

  
	
  2.10

  	
  Computation of
  Interest and Fees.

  
	
  2.11

  	
  Evidence of Debt.

  
	
  2.12

  	
  Payments Generally.

  
	
  2.13

  	
  Sharing of Payments.

  
	
  2.14

  	
  Extension of Termination
  Date.

  
	
  2.15

  	
  Conversion to Term Loan.

  
	
   

  	
   

  
	
  ARTICLE III. TAXES, YIELD, PROTECTION AND
  ILLEGALITY

  
	
  3.01

  	
  Taxes.

  
	
  3.02

  	
  Illegality.

  
	
  3.03

  	
  Inability to Determine
  Rates.

  
	
  3.04

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

  
	
  3.05

  	
  Funding Losses.

  
	
  3.06

  	
  Matters
  Applicable to all Requests for Compensation.

  
	
  3.07

  	
  Survival.

  
	
   

  	
   

  
	
  ARTICLE IV. CONDITIONS PRECEDENT

  
	
  4.01

  	
  Conditions to Closing.

  
	
  4.02

  	
  Conditions to all
  Credit Extensions.

  
	
   

  	
   

  
	
  ARTICLE V. REPRESENTATIONS AND WARRANTIES

  
	
  5.01

  	
  Existence,
  Qualification, and Power; Compliance with Laws.

  
	
  5.02

  	
  Authorization; No Contravention.

  
	
  5.03

  	
  Governmental Authorization.

  
	
  5.04

  	
  Binding Effect.

  
	
  5.05

  	
  Financial Statements; No Material
  Adverse Effect.

  
	
  5.06

  	
  Litigation.

  
	
  5.07

  	
  No Default.

  



 


i

















 


	
  5.08

  	
  Ownership of Property;
  Liens.

  
	
  5.09

  	
  Environmental Compliance.

  
	
  5.10

  	
  Taxes.

  
	
  5.11

  	
  ERISA Compliance.

  
	
  5.12

  	
  Margin Regulations; Investment
  Company Act; Public Utility Holding Company Act.

  
	
  5.13

  	
  Rank of Debt.

  
	
  5.14

  	
  Disclosure.

  
	
  5.15

  	
  Tax Shelter Regulations.

  
	
   

  	
   

  
	
  ARTICLE VI. AFFIRMATIVE COVENANTS

  
	
  6.01

  	
  Financial Statements.

  
	
  6.02

  	
  Certificates; Other
  Information.

  
	
  6.03

  	
  Notices.

  
	
  6.04

  	
  Payment of Obligations.

  
	
  6.05

  	
  Preservation of Existence,
  Etc.

  
	
  6.06

  	
  Maintenance of Properties.

  
	
  6.07

  	
  Maintenance of Insurance.

  
	
  6.08

  	
  Compliance with Laws.

  
	
  6.09

  	
  Books and Records.

  
	
  6.10

  	
  Inspection Rights.

  
	
  6.11

  	
  Use of Proceeds.

  
	
   

  	
   

  
	
  ARTICLE VII. NEGATIVE COVENANTS

  
	
  7.01

  	
  Liens.

  
	
  7.02

  	
  Indebtedness.

  
	
  7.03

  	
  Subsidiary Indebtedness.

  
	
  7.04

  	
  Fundamental Changes.

  
	
  7.05

  	
  Change in Nature of
  Business.

  
	
  7.06

  	
  Transactions with
  Affiliates.

  
	
  7.07

  	
  Burdensome Agreements.

  
	
  7.08

  	
  Use
  of Proceeds.

  
	
  7.09

  	
  Total Debt to
  Capitalization Ratio.

  
	
   

  	
   

  
	
  ARTICLE VIII. EVENTS OF DEFAULT AND
  REMEDIES

  
	
  8.01

  	
  Events of Default.

  
	
  8.02

  	
  Remedies Upon Event of
  Default.

  
	
  8.03

  	
  Application of Funds.

  
	
   

  	
   

  
	
  ARTICLE IX. AGREEMENT AMONG LENDERS

  
	
  9.01

  	
  Appointment
  and Authorization of Administrative Agent.

  
	
  9.02

  	
  Delegation of Duties.

  
	
  9.03

  	
  Liability of
  Agent-Related Persons.

  
	
  9.04

  	
  Reliance by
  Administrative Agent.

  
	
  9.05

  	
  Notice of Default.

  
	
  9.06

  	
  Credit
  Decision; Disclosure of Information by Administrative Agent and Syndication
  Agent.

  
	
  9.07

  	
  Indemnification
  of Agent-Related Persons.

  
	
  9.08

  	
  Administrative
  Agent in its Individual Capacity.

  
	
  9.09

  	
  Successor Administrative
  Agent.

  
	
  9.10

  	
  Administrative
  Agent May File Proofs of Claim.

  



 


ii

















 


	
  9.11

  	
  Other Agents; Joint
  Book Runners, Joint Lead Arrangers.

  
	
   

  	
   

  
	
  ARTICLE X. MISCELLANEOUS

  
	
  10.01

  	
  Amendments, Etc.

  
	
  10.02

  	
  Notices and Other
  Communications; Facsimile Copies.

  
	
  10.03

  	
  No Waiver; Cumulative
  Remedies.

  
	
  10.04

  	
  Attorneys’ Fees, Expenses and Taxes.

  
	
  10.05

  	
  Indemnification by the
  Borrower.

  
	
  10.06

  	
  Payments Set Aside.

  
	
  10.07

  	
  Successors and Assigns.

  
	
  10.08

  	
  Confidentiality.

  
	
  10.09

  	
  Set-off.

  
	
  10.10

  	
  Interest Rate Limitation.

  
	
  10.11

  	
  Counterparts.

  
	
  10.12

  	
  Integration.

  
	
  10.13

  	
  Survival of
  Representations and Warranties.

  
	
  10.14

  	
  Severability.

  
	
  10.15

  	
  Foreign Lenders.

  
	
  10.16

  	
  Removal and
  Replacement of Lenders.

  
	
  10.17

  	
  Governing Law.

  
	
  10.18

  	
  Waiver of Right to
  Trial by Jury.

  
	
  10.19

  	
  TIME IS OF THE ESSENCE.

  
	
  10.20

  	
  ENTIRE AGREEMENT.

  
	
   

  	
   

  
	
  SIGNATURE PAGES

  



 


iii

















 


	
  SCHEDULES

  
	
   

  	
   

  	
   

  
	
  2.01

  	
   

  	
  Commitments and Pro Rata Shares

  
	
  2.03

  	
   

  	
  Existing Letters of Credit

  
	
  7.02

  	
   

  	
  Existing Borrower Indebtedness and Subsidiary
  Indebtedness

  
	
  10.02

  	
   

  	
  Administrative Agent’s Offices, Certain Addresses
  for Notices

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Form of

  
	
   

  	
   

  	
   

  
	
  A

  	
   

  	
  Loan Notice

  
	
  B

  	
   

  	
  Term Conversion Election

  
	
  C

  	
   

  	
  Term Conversion Date Certificate

  
	
  D

  	
   

  	
  Note

  
	
  E

  	
   

  	
  Compliance Certificate

  
	
  F

  	
   

  	
  Assignment and Assumption

  
	
  G

  	
   

  	
  Secretary’s Certificate

  
	
  H

  	
   

  	
  Opinion of Counsel

  



 


iv

















 


364-DAY REVOLVING CREDIT AGREEMENT


 


THIS 364-DAY REVOLVING CREDIT AGREEMENT (“Agreement”) is
entered into as of July 30, 2003, among ALLTEL CORPORATION, a
Delaware corporation (the “Borrower”), each lender from time to time party hereto
(collectively, the “Lenders”
and individually, a “Lender”), BANK OF AMERICA, N.A., as the
Administrative Agent and L/C Issuer, and MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED, as the Syndication Agent.


 


The Borrower has requested that the Lenders extend a
revolving credit facility to the Borrower in the aggregate principal amount of
up to $500,000,000, 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 10.02, or
such other address or account as the Administrative Agent may from time to time
notify to the Borrower and the Lenders.


 


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


 


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


 


Agent-Related Persons means the
Administrative Agent (including any successor administrative agent) and the
Syndication Agent (including any successor syndication agent), together with
each of their respective Affiliates (including, in the case of Bank of America
in its capacity as the Administrative Agent, the Arranger), and the officers,
directors, employees, agents, and attorneys-in-fact of each such Person and
Affiliate.


 


Agreement means this 364-Day  Revolving
Credit Agreement.


 


Applicable Rate means the appropriate
percentages per annum as set forth below, based upon the Debt Rating, relevant
fee, and Type as set forth below; provided that, from and after the Term
Conversion Date (or from and after the Termination Date (as determined pursuant
to clause (a) of the
definition thereof), if the Term Conversion Date does not occur but any L/C
Obligations exist after such


 


1

















 


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


 


	
  Pricing

  Level

  	
   

  	
  Debt Ratings

  S&P/Moody’s

  	
   

  	
  Facility

  Fee

  	
   

  	
  Eurodollar

  Rate Loan/

  Letter of

  Credit Fee

  	
   

  	
  Base Rate

  Loan

  	
   

  	
  Utilization

  Fee

  	
   

  
	
  1

  	
   

  	
  A+/A1 or higher

  	
   

  	
  .080%

  	
   

  	
  .145%

  	
   

  	
  0%

  	
   

  	
  .075%

  	
   

  
	
  2

  	
   

  	
  A/A2

  	
   

  	
  .100%

  	
   

  	
  .225%

  	
   

  	
  0%

  	
   

  	
  .100%

  	
   

  
	
  3

  	
   

  	
  A-/A3

  	
   

  	
  .125%

  	
   

  	
  .325%

  	
   

  	
  0%

  	
   

  	
  .125%

  	
   

  
	
  4

  	
   

  	
  BBB+/Baa1

  	
   

  	
  .150%

  	
   

  	
  .400%

  	
   

  	
  0%

  	
   

  	
  .150%

  	
   

  
	
  5

  	
   

  	
  BBB/Baa2 or
  lower

  	
   

  	
  .175%

  	
   

  	
  .625%

  	
   

  	
  0%

  	
   

  	
  .200%

  	
   

  



 


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


 


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


 


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


 


Arranger Fee Letter  means the confidential letter agreement
dated June 11, 2003, among the Borrower, the Administrative Agent, and the
Arrangers.


 


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


 


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


 


Audited Financial Statements means the
audited Financial Statements of the Borrower and its Subsidiaries for the
fiscal year ended December 31, 2002.


 


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


 


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


 


2

















 


Bank of America Fee Letter has the
meaning specified in Section 2.03(j).


 


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


 


Base Rate Loan means a Borrowing that bears interest based on the Base
Rate or a L/C Borrowing.


 


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


 


Borrower has the meaning set forth in
the introductory paragraph hereto.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3

















 


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.


 


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


 


Code means the Internal Revenue Code
of 1986.


 


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


 


Compliance Certificate means a
certificate substantially in the form of Exhibit E.


 


Consenting Lenders has the meaning set
forth in Section 2.14(b).


 


Consolidated Net Worth means, at any
time, consolidated net stockholders equity of the Borrower and its
Subsidiaries, determined in accordance with GAAP.


 


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


 


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


 


Current Financials means, at the time
of any determination thereof, the more recently delivered to the Lenders of
either (a) (i) the Audited Financial Statements, and (ii) the
unaudited Financial Statements for the three-month period ended March 31,
2003, calculated on a consolidated basis for the Borrower and its Subsidiaries,
or (b) the Financial Statements required to be delivered under Sections 6.01(a)
or (b), as the case may
be.


 


Debt Rating has the meaning set forth
in the definition of “Applicable Rate.”


 


Debtor Relief Laws means the
Bankruptcy Code of the United States of America, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States of America or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.


 


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


 


Default Rate means an interest rate equal
to (a) with respect to Base Rate Loans, (i) the Base Rate plus
(ii) the Applicable Rate, if any, for Base Rate Loans plus (iii) 2.0% per annum,
(b) with respect to a Eurodollar Rate Loan, (i) the Eurodollar Rate for such
Eurodollar Loan plus (ii) the Applicable Rate


 


4

















 


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


 


Defaulting Lender means any Lender
that (a) has failed to fund any portion of any Loan or participation in any L/C
Obligation required to be funded by it hereunder within one Business Day of the
date required to be funded by it hereunder, (b) has otherwise failed to pay
over to the Administrative Agent or any other Lender any other amount required
to be paid by it hereunder within one Business Day of the date when due, unless
the subject of a good faith dispute, or (c) has been deemed insolvent or become
the subject of a bankruptcy or insolvency proceeding.


 


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


 


Dollar and $ means lawful money of the United States of
America.


 


Eligible Assignee has the meaning
specified in Section 10.07(h).


 


Environmental Laws means all Laws
relating to environmental, health, safety, and land use matters applicable to
any property.


 


ERISA means the Employee Retirement
Income Security Act of 1974 and any regulations issued pursuant thereto.


 


ERISA Affiliate means any trade or
business (whether or not incorporated) under common control with the Borrower
within the meaning of Section 414(b) or (c) of the  Code
(and Sections
414(m) and (o) of the  Code for purposes of
provisions relating to Section 412 of the  Code).


 


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


 


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


 


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


 


5

















 


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


 


(c)                                  if
the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum determined by
the Administrative Agent as the rate of interest (rounded upward to the next
1/100th of 1%) at which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by Bank of America and
with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period.


 


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


 


Event of Default means any of the
events or circumstances specified in Section 8.01.


 


Existing Credit Agreement means that
certain 364-Day Revolving Credit Agreement dated as of July 31, 2002, among the
Borrower, Bank of America, as administrative agent, and a syndicate of lenders.


 


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


 


Extension Effective Date has the
meaning set forth in Section 2.14(b).


 


Facility Fee has the meaning set forth
in Section 2.09(a).


 


Federal Funds Rate means, for any day,
the rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank
on the Business Day next succeeding such day; provided  that
(a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate (rounded upwards to the nearest 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by
the Administrative Agent.


 


Financial Statements means balance
sheets, statements of operations, and statements of cash flows prepared in
accordance with GAAP (including the notes thereto), which statements of
operations and statements of cash flows shall be in comparative form to the
corresponding period of the preceding fiscal year, and which balance sheets
shall be in comparative form to the corresponding date of the preceding fiscal
year.  In addition, any annual Financial
Statements must include statements of shareholders’ equity prepared in
accordance with GAAP, which statements of shareholders’ equity shall be in
comparative form to the prior fiscal year-end figures.


 


6

















 


Foreign Lender has the meaning
specified in Section 10.15.


 


GAAP means generally accepted
accounting principles in the United States set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be approved by a
significant segment of the accounting profession in the United States, that are
applicable to the circumstances as of the date of determination, consistently
applied.  If at any time any change in
GAAP would affect the computation of any financial ratio or requirement set
forth in any Loan Document, and either the Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders, and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided that, until so amended, (a) such
ratio or requirement shall continue to be computed in accordance with GAAP
prior to such change therein, and (b) the Borrower shall provide to the
Administrative Agent and the Lenders Financial Statements and other documents
required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.


 


Governmental Authority means any
nation or government, any state or other political subdivision thereof, any
agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank, or other entity exercising executive, legislative,
judicial, taxing, regulatory, or administrative powers or functions of or
pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.


 


Guaranty Obligation means, as to any
Person, (a) any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness or
other obligation of another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities, or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital, or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the purpose
of assuring in any other manner the obligee in respect of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person;
provided
that the term “Guaranty Obligation” shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business.  The amount of any Guaranty
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guaranty Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
the guaranteeing Person in good faith.


 


Honor Date has the meaning specified
in Section 2.03(c)(i).


 


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


 


Indebtedness means, as to any Person
at a particular time, all of the following:


 


7

















 


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


 


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


 


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


 


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


 


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


 


(f)                                    capital
leases and Synthetic Lease Obligations; and


 


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


 


For all purposes hereof, the Indebtedness of any
Person shall include the Indebtedness of any partnership or joint venture
(other than a joint venture that is itself a corporation or limited liability
company) in which such Person is a general partner or a joint venturer, unless
such Indebtedness is expressly made non-recourse to such Person.  The amount of any capital lease or Synthetic
Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.


 


Indemnified Liabilities has the
meaning set forth in Section 10.05.


 


Indemnitees  has the meaning set forth
in Section 10.05.


 


Interest Payment Date means (a) as to
any Eurodollar Rate Loan, the last day of each Interest Period applicable to
such Eurodollar Rate Loan; provided that, if any Interest Period for
a Eurodollar Rate Loan exceeds three months, the respective dates that fall
every three months after the beginning of such Interest Period shall also be Interest
Payment Dates, (b) as to any Base Rate Loan, the last Business Day of each
March, June, September, and December and the Maturity Date, and (c) as to any
Loan, the date such Loan becomes due and payable in accordance with this
Agreement.


 


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


 


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


 


8

















 


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


 


(iii)                               no
Interest Period shall extend beyond the scheduled Maturity Date.


 


IRS means the United States Internal
Revenue Service.


 


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.


 


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 Pro Rata Share.


 


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


 


L/C Credit Extension means, with
respect to any Letter of Credit, the issuance thereof or extension of the
expiry date thereof, or the renewal or 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 undrawn amount of all outstanding Letters of
Credit plus,
without duplication, the aggregate of all Unreimbursed Amounts, including all
L/C Borrowings.


 


Lender has the meaning specified in
the introductory paragraph and, as the context requires, includes the L/C
Issuer.


 


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


 


Letter of Credit means any letter of
credit issued hereunder  and shall include the Existing Letters of
Credit.


 


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


 


Letter of Credit Expiration Date means
the date that is five Business Days prior to the Maturity Date (assuming, for
purposes of this definition only, and not for purposes of any other Section of
this Agreement, that the Loans have been converted to a Term Loan pursuant to Section 2.15.)


 


Letter of Credit Fee has the meaning
set forth in Section 2.03(i).


 


9

















 


Letter of Credit Sublimit means an
amount equal to $50,000,000. The Letter of Credit Sublimit is part of, and not
in addition to, the Total Commitment.


 


Lien means any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge, or preference, priority, or other security interest or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable Laws
of any jurisdiction), including the interest of a purchaser of accounts
receivable.


 


Loan has the meaning specified in Section 2.01, and,
from and after the Term Conversion Date, means the Term Loan.


 


Loan Documents means (a) this
Agreement, (b) each Note, (c) the Arranger Fee Letter, (d) the Bank of America
Fee Letter, (e) each Request for Credit Extension, (f) each Compliance
Certificate, (g) all agreements, documents, instruments, and certificates
in favor of the Administrative Agent or any Lender (or the Administrative Agent
on behalf of Lenders) ever delivered in connection with or under this Agreement
or otherwise delivered in connection with all or any part of the Obligations
evidenced by this Agreement, and (h) all renewals, extensions, and
restatements of, and amendments and supplements to, any of the foregoing.


 


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


 


Material Adverse Effect means, on any
date of determination, (a) a material adverse change in the financial condition
or operations of the Borrower and its Subsidiaries taken as a whole, (b) a
material impairment of the ability of the Borrower to perform its obligations
under any Loan Document to which it is a party, or (c) a material adverse
effect upon the legality or enforceability against the Borrower of any Loan
Document to which it is a party.


 


Maturity Date means the Termination
Date; provided
that, if the Loans are converted to a Term Loan pursuant to Section 2.15,
from and after such conversion, “Maturity Date” means the first anniversary of the Term
Conversion Date.


 


Moody’s means Moody’s Investors
Service, Inc.


 


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


 


Nonrenewal Notice Date has the meaning
specified in Section 2.03(b)(iii).


 


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


 


Obligations means all advances to, and
debts, liabilities, obligations, covenants, and duties of, the Borrower arising
under any and all Loan Documents or otherwise with respect to any Loan or
Letter of Credit, whether direct or indirect (including those acquired by assumption),
absolute or contingent,


 


10

















 


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


 


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


 


Outstanding Amount means, without
duplication, (a) with respect to Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any Borrowings and prepayments
or repayments of any Loans occurring on such date, and (b) with respect to L/C
Obligations on any date, the amount of such L/C Obligations on such date after
giving effect to any L/C Credit Extensions occurring on such date and any other
changes in the aggregate amount of the L/C Obligations occurring on such date,
including as a result of any reimbursements of outstanding unpaid drawings
under any Letters of Credit or any reductions in the maximum amount available
for drawing under any Letters of Credit taking effect on such date.


 


Participant has the meaning specified
in Section 10.07(d).


 


PBGC means the Pension Benefit
Guaranty Corporation.


 


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


 


Permitted Successor Corporation means
any corporation (other than the Borrower) that is the survivor of a merger or
consolidation with the Borrower, so long as:


 


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


 


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


 


(c)                                  the
Borrower shall have delivered to the Administrative Agent a certificate signed
by a Responsible Officer of the Borrower stating that such surviving
corporation complies


 


11

















 


with the requirements for
a Permitted Successor Corporation set forth in this definition and that such
merger or consolidation is permitted under Section 7.04;


 


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


 


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


 


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


 


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


 


Principal Debt means the aggregate
Outstanding Amount of all Loans and all L/C Obligations.


 


Pro Rata Share means, with respect to
each Lender, unless expressly specified herein, (a) with respect to an amount
of credit to be extended, purchased, or otherwise paid by such Lender hereunder
(including purchases of participations in L/C Obligations), a reduction of the
Total Commitment, a payment of the Facility Fee or the Letter of Credit
Fee to such Lender, or a determination of the Voting Percentage of such
Lender, in each case at any time prior to the earlier of the Termination Date
or the Term Conversion Date (or, in the case of purchases of participations in
L/C Obligations or payment of the Letter of Credit Fees, at any time), a
fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is the amount of the Commitment of such Lender
at such time and the denominator of which is the amount of the Total Commitment
at such time, (b) with respect to an amount to be paid by such Lender hereunder
(other than purchases of participations in L/C Obligations), or a payment
of the Facility Fee to such Lender, in each case on or after the earlier of the
Termination Date or the Term Conversion Date, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the amount of the Principal Debt owed to such Lender at such time and the
denominator of which is the amount of the aggregate Principal Debt owed to all
Lenders at such time, and (c) with respect to an amount to be paid to or for
the account of such Lender (other than the Facility Fee and the Letter of
Credit Fee) at any time, a fraction (expressed as a percentage, carried out to
the ninth decimal place), the numerator of which is the amount of the Principal
Debt owed to such Lender at such time and the denominator of which is the
amount of the Principal Debt owed to all Lenders at such time.


 


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


 


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


 


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


 


Required Lenders means, as of any date
of determination, at least two Lenders whose Voting Percentages aggregate more
than 50%.


 


12

















 


Responsible Officer means the
chairman, the chief executive officer, the president, the chief operating
officer, any executive vice president, the chief financial officer, or the
treasurer of the Borrower. Any document delivered hereunder that is signed by a
Responsible Officer of the Borrower shall be conclusively presumed to have been
authorized by all necessary corporate, partnership, and/or other action on the
part of the Borrower and such Responsible Officer shall be conclusively
presumed to have acted on behalf of the Borrower.


 


S&P means Standard & Poor’s
Ratings Services, a division of The McGraw-Hill Companies, Inc.


 


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


 


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


 


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


 


Syndication Agent means Merrill Lynch,
Pierce, Fenner & Smith Incorporated, in its capacity as the Syndication
Agent, or any successor syndication agent.


 


Synthetic Lease Obligation means any
synthetic lease, tax retention operating lease, off-balance sheet loan, or
similar off-balance sheet financing product where such transaction is
considered borrowed money indebtedness for tax purposes but is classified, for
accounting purposes, as an operating lease, rather than a capital lease.


 


Term Conversion Date means the date
upon which the Outstanding Amount of the Loans is converted to a Term Loan in
accordance with Section 2.15.


 


13

















 


Term Conversion Election has the
meaning set forth in Section 2.15(a).


 


Term Loan means the Outstanding Amount
of the Loans from and after the Term Conversion Date.


 


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


 


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


 


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


 


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


 


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


 


Unreimbursed Amount has the meaning
set forth in Section 2.03(c)(i).


 


Utilization Fee has the meaning set
forth in Section 2.09(b).


 


Voting Percentage means, as to any
Lender, (a) at any time prior to the earlier of the Termination Date or the
Term Conversion Date, such Lender’s Pro Rata Share and (b) at any time from and
after the earlier of the Termination Date or the Term Conversion Date, the
percentage (carried out to the ninth decimal place) which (i) the Principal
Debt owed to such Lender bears to (ii) the Principal Debt owed to all Lenders; provided
that any Defaulting Lender’s Voting Percentage shall be deemed to be
–0-, and the respective Pro Rata Shares and Voting Percentages of the other
Lenders shall be recomputed for purposes of this definition and the definition
of “Required
Lenders” without regard to such Defaulting Lender’s Commitment or
the Principal Debt owed to such Defaulting Lender.


 


1.02                        Other Interpretive Provisions.


 


(a)                                  The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.


 


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


 


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


 


14

















 


(iii)                               The
term “including”
is by way of example and not limitation.


 


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


 


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


 


(d)                                 Section
headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.


 


1.03                        Accounting Terms.  All accounting terms
not specifically or completely defined herein shall be construed in conformity
with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein.


 


1.04                        Rounding.  Any
financial ratios required to be maintained by the Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).


 


1.05                        References to Agreements and Laws.  Unless
otherwise expressly provided herein, (a) references to Organization
Documents, agreements (including the Loan Documents), and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements, and other modifications thereto, but only to the
extent that such amendments, restatements, extensions, supplements, and other
modifications are not prohibited by any Loan Document, and (b) references to
any Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing, or interpreting such Law.


 


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


 


ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01                        Loans.  Subject
to the terms and conditions set forth herein, each Lender severally agrees to
make loans (each such loan, a “Loan”) to the Borrower from time to time, on any
Business Day from the Closing Date to the Termination Date, in an aggregate
amount not to exceed at any time outstanding the amount of such Lender’s
Commitment; provided
that, after giving effect to any Borrowing, (i) the aggregate
Principal Debt shall not exceed the Total Commitment, and (ii) the Outstanding
Amount of the Loans owed to any Lender, plus, without duplication, such Lender’s
Pro Rata Share of the Outstanding Amount of all L/C Obligations shall not
exceed such Lender’s Commitment.  Within
the limits of each Lender’s Commitment, and subject to the other terms and
conditions hereof, the


 


15

















 


Borrower may borrow under this Section 2.01, prepay under Section 2.04, and reborrow under this Section 2.01.  Loans may be Base Rate Loans or Eurodollar
Rate Loans, as further provided herein.


 


2.02                        Borrowings,
Conversions, and Continuations of Loans.


 


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


 


(b)                                 Following
receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Pro Rata Share of the applicable Borrowings, and if
no timely notice of a conversion or continuation is provided by the Borrower,
the Administrative Agent shall notify each Lender of the details of any
automatic conversion to Base Rate Loans described in the preceding subsection (a).  Each Lender shall make its Pro Rata Share of
each Borrowing available to the Administrative Agent in immediately available
funds at the Administrative Agent’s Office not later than 12:00 noon, Dallas,
Texas time, on the Business Day specified in the applicable Loan Notice.  Upon satisfaction of the applicable
conditions set forth in Section 4.02, the Administrative Agent shall make all
funds so received available to the Borrower no later than 2:00 p.m. Dallas,
Texas time in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Bank of America with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Borrower; provided  that, if, on the date the
Loan Notice with respect to such Borrowing is given by the Borrower, there are
L/C Borrowings outstanding, then the proceeds of such Borrowing shall be
applied, first,
to the payment in full of any such L/C Borrowings, and second, to the Borrower as
provided above.


 


16

















 


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


 


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


 


(e)                                  After
giving effect to all Borrowings, all conversions of Borrowings from one Type to
the other, and all continuations of Borrowings as the same Type, there shall
not be more than 8 Interest Periods in effect on any day with respect to
Borrowings.


 


2.03                        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 other Lenders set forth in this Section 2.03, from
time to time on any Business Day during the period from the Closing Date until
the Termination Date, to issue Letters of Credit for the account of the
Borrower, and to amend or renew Letters of Credit previously issued by it, in
accordance with subsection (b) below,
and (B) the Lenders severally agree to participate in Letters of Credit issued
for the account of the Borrower; provided that, the L/C Issuer shall not be
obligated to make any L/C Credit Extension with respect to any Letter of
Credit, and no Lender shall be obligated to participate in any Letter of Credit
if, after giving effect to such L/C Credit Extension, (x) the Principal Debt
would exceed the Total Commitment, (y) the aggregate Outstanding Amount of the
Loans owed to any Lender, plus such Lender’s Pro Rata Share of the
Outstanding Amount of all L/C Obligations would exceed such Lender’s
Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed
the Letter of Credit Sublimit.  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.  All Existing
Letters of Credit shall be deemed to have been issued pursuant hereto, and from
and after the Closing Date the  rights
and obligations of any Person party hereto (in such Person’s capacity
hereunder) relating to the Existing Letters of Credit shall be subject to and
governed by the terms and conditions hereof.


 


(ii)                                  The
L/C Issuer shall be under no 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,


 


17

















 


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 date hereof, or shall impose upon the L/C
Issuer any unreimbursed loss, cost, or expense which was not applicable on the
date hereof and which the L/C Issuer in good faith deems material to it;


 


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


 


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


 


(D)                               the
issuance of such Letter of Credit would violate one or more policies of the L/C
Issuer; or


 


(E)                                 such
Letter of Credit is in an initial amount less than $100,000 (provided
that not more than five Letters of Credit may each have an initial
face amount of $5,000 or more but less than $100,000), or is to be denominated
in a currency other than Dollars.


 


(iii)                               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.


 


(b)                                 Procedures
for Issuance and Amendment of Letters of Credit; Auto-Renewal 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 10:00 a.m. Dallas, Texas time at least two Business Days (or such
later date and time as the L/C Issuer may agree in a particular instance in its
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 of the Subsidiary of the Borrower to be shown as the account party
thereon (if other than the Borrower); (E) the name and address of the
beneficiary thereof; (F) the documents to be presented by such beneficiary in
case of any drawing thereunder; (G) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; 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.


 


18

















 


(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.  Upon receipt
by the L/C Issuer of confirmation from the Administrative Agent that the
requested issuance or amendment is permitted in accordance with the terms
hereof, 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 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 (to the
extent such practices are not inconsistent with the terms of this
Agreement).  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 Pro Rata Share 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 renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that,
any such Auto-Renewal Letter of Credit must permit the L/C Issuer to prevent
any such renewal at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day in each such twelve-month period to be
agreed upon at the time such Letter of Credit is issued (the “Nonrenewal Notice Date”).  The Borrower shall not be required to make a
specific request to the L/C Issuer for any such renewal.  Once an Auto-Renewal 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 renewal of such Letter of Credit at any
time to an expiry date not later than the Letter of Credit Expiration Date; provided
that, the L/C Issuer shall not permit any such renewal if (A) the
L/C Issuer has determined that it would have no obligation at such time to
issue such Letter of Credit in its renewed form under the terms hereof (by
reason of the provisions of Section 2.03(a)(ii) or otherwise), or (B) it has
received notice (which may be by telephone or in writing) on or before the day
that is two Business Days before the Nonrenewal Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit such
renewal or (2) from the Administrative Agent, any Lender or the Borrower that
one or more of the applicable conditions specified in Section 4.02 is not then satisfied.


 


(iv)                            Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof,
the 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 a drawing
under such Letter of Credit, the L/C Issuer shall promptly (a) examine all
documents purporting to represent a demand for payment under such Letter of
Credit and (b) notify the Borrower and the Administrative Agent of such demand
in the event the L/C Issuer will make payment on such Letter of Credit.  The Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of any
payment by the L/C Issuer under a Letter of Credit no later than (a) 2:00 p.m.,
Dallas, Texas time on the date of the payment by the L/C Issuer under any
Letter of Credit (each such date, an “Honor Date”), if the L/C Issuer provides notice to
Borrower of such payment at or before 11:00 a.m., Dallas, Texas time on such


 


19

















 


day or (b)
10:00 a.m., Dallas, Texas time on the next succeeding Business Day after the
date on which the L/C Issuer provides notice of such payment to Borrower if
such notice is not provided at or before 11:00 a.m., Dallas, Texas time on the
Honor Date (together with interest thereon at the rate then applicable to Base
Rate Loans, which interest shall be solely for the account of the L/C
Issuer).  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 Pro Rata Share thereof.  In such event, if the Termination Date shall
not have occurred, the Borrower shall be deemed to have requested a Borrowing
of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the
principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Total Commitment and the conditions set forth in Section 4.02 (other
than the delivery of a Loan Notice). 
Any notice given by the L/C Issuer or the Administrative Agent pursuant
to this Section 2.03(c)(i)
may be given by telephone if immediately confirmed in writing; provided
that, the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.


 


(ii)                                  Each
Lender (including the Lender acting as L/C Issuer) shall upon any notice
pursuant to Section 2.03(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 Pro Rata
Share of the Unreimbursed Amount not later than 12:00 noon, Dallas, Texas time
on the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Borrower in such
amount.  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 refinanced by a  Borrowing of Base Rate Loans because the
Termination Date has occurred or the conditions set forth in Section 2.03(c)(i) cannot
be satisfied, 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 immediately due and payable without
further demand (together with interest) and shall bear interest at the Default
Rate (or, if the Unreimbursed Amount is not so refinanced solely because the
Termination Date has occurred, at the rate then applicable to Base Rate
Loans).  In such event, each Lender’s
payment to the Administrative Agent for the account of the L/C Issuer pursuant
to Section 2.03(c)(ii)
shall be deemed payment in respect of its participation in such L/C Borrowing
and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.


 


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


 


(v)                                 Each
Lender’s obligation to make Loans or L/C Advances to reimburse the L/C Issuer
for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including: (A) any set-off, 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; provided that, each Lender’s obligation to
make Loans pursuant


 


20

















 


to this Section 2.03(c)
is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a
Loan Notice).  No such making of an L/C
Advance shall constitute a Loan or 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 2.03(c) by the time specified in Section 2.03(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting 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
Federal Funds Rate from time to time in effect.  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.


 


(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 2.03(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 Pro Rata Share thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender’s L/C Advance
was outstanding) 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 2.03(c)(i)
is required to be returned under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the account
of the L/C Issuer its Pro Rata Share 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.


 


(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 agreement or instrument relating thereto;


 


(ii)                                  the
existence of any claim, counterclaim, set-off, defense, or other right that the
Borrower 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;


 


21

















 


(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


 


(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.


 


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
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering any
such document.  None of the L/C Issuer,
any Agent-Related Person, nor any of the respective correspondents,
participants, or assignees of the L/C Issuer shall be liable to any Lender for
(i) any action taken or omitted in connection herewith at the request or with
the approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity, or
enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Application.  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
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, any Agent-Related
Person, nor any of the respective correspondents, participants, or assignees of
the L/C Issuer, shall be liable or responsible for any of the matters described
in clauses (i) through (v) of Section 2.03(e) or in
this Section 2.03(f);  provided
that, anything in such clauses or this Section 2.03(f) to the contrary
notwithstanding, the Borrower will have a claim against the L/C Issuer, and the
L/C Issuer will 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 or gross negligence 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, 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.


 


22

















 


(g)                                 Cash
Collateral.  (i) Upon the request of
the Administrative Agent, if an Event of Default exists, or (ii) if, as of the
Maturity Date, any Letter of Credit may for any reason remain outstanding and
partially or wholly undrawn, the Borrower shall immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations (in an amount equal to such
Outstanding Amount).  For purposes
hereof, “Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for
the benefit of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form
and substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders).  Derivatives of such term have corresponding
meanings.  The Borrower hereby grants to
the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing.  The
Administrative Agent is hereby irrevocably authorized and directed by the
Borrower, without further notice to or consent from the Borrower, to setoff and
apply cash collateral to any Unreimbursed Amount, including L/C
Borrowings.  If the Borrower is required
to provide an amount of cash collateral hereunder as a result of the occurrence
of an Event of Default, such amount (to the extent not applied as permitted
under this Agreement) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived.


 


(h)                                 Applicability
of ISP98 and UCP.  Unless otherwise expressly agreed by the
L/C Issuer and the Borrower when a Letter of Credit is issued (including any
such agreement applicable to an Existing Letter of Credit), (i) the rules of
the “International Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version thereof as may
be in effect at the time of issuance) shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce
(the “ICC”)
at the time of issuance (including the ICC decision published by the Commission
on Banking Technique and Practice on April 6, 1998 regarding the European
single currency (euro)) shall apply to each commercial 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 Pro Rata Share  a Letter of Credit fee (the “Letter of Credit Fee”)
for each Letter of Credit equal to the Applicable Rate (applied on a per diem
basis) times
the daily maximum amount available to be drawn under such Letter of Credit
(including all increases thereof contemplated by such Letter of Credit or the
Letter of Credit Application therefor, whether or not such increases have taken
effect at such time).  Such Letter of
Credit Fee shall be computed on a quarterly basis in arrears.  Such Letter of Credit Fee shall be due and
payable on the last Business Day of each March, June, September, and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date, and thereafter on demand.  If there is any change in the Applicable
Rate during any quarter, the daily maximum amount of each Letter of Credit
shall be computed and multiplied by the Applicable Rate (applied on a per diem
basis) separately for each period during such quarter that such Applicable Rate
was in effect.  While any Event of
Default exists or after acceleration, the Letter of Credit Fee shall be
calculated and payable at the Default Rate to the fullest extent permitted by
applicable law.


 


(j)                                     Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer.  The Borrower shall pay directly
to the L/C Issuer for its own account a fronting fee with respect to each
Letter of Credit in the amount and at the times specified in the confidential
letter agreement dated June 11, 2003 (as thereafter amended or modified
from time to time, the “Bank of America Fee Letter”), between the Borrower
and Bank of America.  In addition, the
Borrower shall pay directly to the L/C Issuer for its own account the customary
issuance, presentation, amendment, and other processing fees, and other
standard costs and charges, of the L/C Issuer relating to letters of credit as
from time to time


 


23

















 


specified in writing to the Borrower. 
Such customary fees and standard costs and charges are due and payable
on demand and are nonrefundable.


 


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


 


2.04                        Prepayments.


 


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


 


(b)                                 If
for any reason the Principal Debt at any time exceeds the Total Commitment then
in effect, the Borrower shall immediately prepay Loans or, if no Loans are
outstanding at such time, Cash Collateralize the L/C Obligations in an
aggregate amount equal to such excess.


 


2.05                        Reduction or Termination of Commitments.  The
Borrower may, upon notice to the Administrative Agent, terminate the Total
Commitment, or permanently reduce the Total Commitment to an amount not less
than the then outstanding Principal Debt; provided that (i) any such notice shall be
received by the Administrative Agent not later than 10:00 a.m., Dallas, Texas
time, five Business Days prior to the date of termination or reduction, (ii)
any such partial reduction shall be in an aggregate amount of $10,000,000 or
any whole multiple of $1,000,000 in excess thereof, and (iii) if, after giving
effect to any reduction of the Total Commitment, the Letter of Credit Sublimit
exceeds the amount of the Total Commitment, the Letter of Credit Sublimit shall
be automatically reduced by the amount of such excess.  The Administrative Agent shall promptly
notify the Lenders of any such notice of reduction or termination of the Total
Commitment.  Once reduced in accordance
with this Section 2.05,
the Total Commitment may not be increased. 
Any reduction of the Total Commitment shall be applied to the Commitment
of each Lender according to its Pro Rata Share.


 


2.06                        Change of Control.  The Borrower shall give the Administrative Agent
and each Lender written notice of a Change of Control with respect to the
Borrower no later than two Business Days after a Responsible Officer of the
Borrower has knowledge of such Change of Control.  No later than 30 days after the giving by the Borrower of such
notice, each Lender shall have the right, in its sole discretion, to notify the
Borrower in writing (with a copy to the Administrative Agent) of its election
to terminate all of its Commitment hereunder, to require a mandatory prepayment
of all Obligations owed to such Lender, and to cease to be a Lender party
hereto, which commitment termination and mandatory prepayment shall occur on
the 30th day after such notice is received by the Borrower.  If a Change of Control occurs, the


 


24

















 


Borrower shall have no right
to make any new Borrowings unless and until the Commitments of all Lenders that
elect to terminate their Commitments pursuant to this Section 2.06 have been terminated, and all
Obligations owing to such Lenders have been paid in full.  The Borrower shall have the right to replace
each terminating Lender pursuant to Section 10.16, which replacement shall occur on or
before the date such terminating Lender’s Commitment would have been terminated
pursuant to this Section 2.06.


 


2.07                        Repayment
of Outstanding Amount of all Loans.  The Borrower shall repay to the Lenders on the Maturity Date the
Outstanding Amount of all Loans outstanding on such date.


 


2.08                        Interest.


 


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


 


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


 


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


 


2.09                        Fees.


 


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


 


(b)                                 Utilization
Fee.  The Borrower shall pay to the
Administrative Agent for the account of each Lender, in accordance with its Pro
Rata Share, a utilization fee (the “Utilization Fee”) equal to the Applicable Rate (applied
on a per diem basis) times the actual daily aggregate Principal
Debt; provided
that (i)  prior to the earlier of the Termination
Date or the Term Conversion Date, the Utilization Fee shall


 


25

















 


be payable only in respect of each day that such aggregate Principal
Debt exceeds 50% of the Total Commitment, and (ii) on and after the earlier of
the Termination Date or the Term Conversion Date, the Utilization Fee shall be
payable only in respect of each day that such aggregate Principal Debt exceeds
50% of the Total Commitment in existence on the Business Day immediately prior
to the termination of the Total Commitment (whether on the Termination Date or
the Term Conversion Date).  The
Utilization Fee shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September, and December, commencing with the
first such date to occur after the Closing Date, and ending on the date both
the Principal Debt has been paid in full and the Total Commitment has been
terminated.  The Utilization Fee shall
be calculated quarterly in arrears in accordance with Section 2.10,  and if there is any change in the Applicable
Rate during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate (on a per diem basis) separately for each
period during such quarter that such Applicable Rate was in effect.  The Utilization Fee shall accrue at all
times, including at any time during which one or more of the conditions in Article IV is not
met.


 


(c)                                  Closing
Fees.                      On the
Closing Date, the Borrower shall pay to the Administrative Agent, for the
respective accounts of the Lenders, and the Arrangers, as applicable, the
upfront fee and other fees described in the Arranger Fee Letter.


 


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


 


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


 


2.11                        Evidence of Debt.


 


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


 


(b)                                 In
addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice
accounts or records evidencing


 


26

















 


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 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.


 


2.12                        Payments Generally.


 


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


 


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


 


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


 


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


 


(ii)                                  if
any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Administrative Agent the amount thereof in immediately available
funds, together with interest thereon for the period from the date such amount
was made available by the Administrative Agent to the Borrower to the date such
amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum
equal to the Federal Funds Rate from time to time in effect. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender’s Loan or L/C Advance, included in the applicable Borrowing or L/C
Borrowing.  If such Lender does not pay
such amount forthwith upon the Administrative Agent’s demand therefor, the
Administrative Agent may make a demand therefor upon the Borrower, and the
Borrower shall pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal to the
rate of interest applicable to the applicable Borrowing or L/C Borrowing.  Nothing herein


 


27

















 


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


 


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


 


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


 


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


 


(f)                                    Nothing
herein shall be deemed to obligate any Lender to obtain the funds for any Loans
or L/C Advances in any particular place or manner or to constitute a representation
by any Lender that it has obtained or will obtain the funds for any Loan or L/C
Advance in any particular place or manner.


 


2.13                        Sharing of Payments.  If, other
than as expressly provided elsewhere herein, any Lender shall obtain on account
of any Loan made by it, or any participation in the L/C Obligations held by it,
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) by or for the account of the Borrower in excess of
its Pro Rata Share (or other share contemplated hereunder) thereof, such Lender
shall immediately (a) notify the Administrative Agent of such fact, and (b)
purchase from the other Lenders such participations in the Loans made by them,
and/or such subparticipations in the participations in L/C Obligations held by
them, as shall be necessary to cause the Lenders to share the excess payment in
respect of such Loan or participation in accordance with their Pro Rata Shares;
provided
that, if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender under any of the circumstances described
in Section 10.06
(including pursuant to any settlement entered into by the purchasing Lender in
its discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender’s ratable share (according
to the proportion of (i) the amount of such paying Lender’s required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of
the total amount so recovered without further interest thereon.  The Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to Section 10.09) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation.  The
Administrative Agent will keep records (which shall be conclusive and binding
in the absence of manifest error) of participations purchased under this Section 2.13 and
will in each case notify the Lenders following any such purchases or
repayments.  Each Lender that purchases
a participation pursuant to this Section 2.13 shall from and after such purchase
have the right to give all notices, requests, demands, directions, and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.


 


28

















 


2.14                        Extension of Termination Date.


 


(a)                                  Not
earlier than 45 days prior to, nor later than 35 days prior to, the Termination
Date then in effect, the Borrower may, upon notice to the Administrative Agent
(which shall promptly notify the Lenders), request a 364-day extension of the
Termination Date then in effect.  No
later than 15 days after the giving by the Borrower of such notice to the
Administrative Agent, each Lender shall notify the Administrative Agent whether
or not it consents to such extension (which consent may be given or withheld in
such Lender’s sole and absolute discretion and, if given, shall not become
irrevocable until the 30th day prior to the Termination Date then in
effect).  Any Lender not responding
within the above time period shall be deemed not to have consented to such
extension.  The Administrative Agent
shall promptly, and in any event not less than 15 days prior to the Termination
Date then in effect, notify the Borrower and the Lenders of the Lenders’ responses.  If any Lender declines, or is deemed to have
declined, to consent to such extension, the Borrower may cause any such Lender
to be replaced as a Lender pursuant to Section 10.16 at any time prior to the Termination
Date then in effect.


 


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


 


(c)                                  This
Section 2.14 shall
supersede any provisions in Section 10.01 to the contrary.


 


2.15                        Conversion to Term Loan.  The Borrower shall have the option to convert the Outstanding
Amount of the Loans on the Termination Date (after giving effect to any
repayments on the Termination Date) to a Term Loan maturing one year after the
Term Conversion Date. From and after such conversion, the Term Loan may be
prepaid but not reborrowed. Such conversion to a Term Loan is subject to and on
the terms and conditions set forth below:


 


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


 


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


 


29

















 


5.05(b),  5.06, 5.07(a), and 5.09) and each Compliance Certificate are
true and correct on and as of the Term Conversion Date, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they were true and correct as of such earlier date, and (B) no
Default or Event of Default exists.


 


 


ARTICLE III.

TAXES, YIELD, PROTECTION AND
ILLEGALITY


 


3.01                              Taxes.


 


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


 


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


 


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


 


(d)                                 The
Borrower agrees to indemnify the Administrative Agent and each Lender for (i)
the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section 3.01)
paid by the Administrative Agent and such Lender, (ii) amounts payable under
the preceding subsection (c)
and (iii) any liability (including additions to tax, penalties, interest, and
expenses) arising therefrom or with respect thereto, in each case


 


30

















 


whether or not such Taxes
or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority.  Payment under
this subsection (d) shall
be made within 30 days after the date the Lender or the Administrative Agent
makes a demand therefor.


 


(e)                                  If
the Administrative Agent or any Lender receives a refund specifically in
respect of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 3.01,
it shall within 30 days from the date of such receipt pay over such refund to the
Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 3.01 with respect to the Taxes or Other Taxes
giving rise to such refund), net of all reasonable out-of-pocket expenses of
such Administrative Agent or any Lender and without interest (other than
interest paid by the relevant Governmental Authority with respect to such
refund); provided
that the Borrower, upon the request of such Administrative Agent or
any Lender, agrees to repay the amount paid over to the Borrower (plus
penalties and interest) to such Administrative Agent or any Lender in the event
such Administrative Agent or any Lender is required to repay such refund to
such Governmental Authority.


 


3.02                        Illegality.  If any Lender determines that any Law has
made it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain, or
fund Eurodollar Rate Loans, or materially restricts the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the applicable
offshore Dollar market, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist.  Upon receipt of such notice, the
Borrower shall, upon demand from such Lender (with a copy to the Administrative
Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such
Lender to Base Rate Loans, either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate
Loans to such day, or immediately, if such Lender may not lawfully continue to
maintain such Eurodollar Rate Loans. 
Upon any such prepayment or conversion, the Borrower shall also pay
interest on the amount so prepaid or converted.  Each Lender agrees to designate a different Lending Office if
such designation will avoid the need for such notice and will not, in the good
faith judgment of such Lender, otherwise be materially disadvantageous to such
Lender.


 


3.03                        Inability to Determine Rates.  If the Administrative Agent determines, in
connection with any request for a Eurodollar Rate Loan or a conversion to or
continuation thereof, that (a) Dollar deposits are not being offered to banks
in the applicable Dollar market for the applicable amount and Interest Period
of such Eurodollar Rate Loan, (b) Required Lenders determine that for any
reason adequate and reasonable means do not exist for determining the
Eurodollar Rate for any required Interest Period with respect to a proposed
Eurodollar Rate Loan, or (c) that the Eurodollar Rate for any requested
Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately
and fairly reflect the cost to the Lenders of funding such Eurodollar Rate
Loan, the Administrative Agent will promptly notify the Borrower and each
Lender.  Thereafter, the obligation of
the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until
the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice.  Upon receipt of such
notice, the Borrower may revoke any pending request for a Borrowing,
conversion, or continuation of Eurodollar Rate Loans or, failing that, will be
deemed to have converted such request into a request for a Borrowing of Base
Rate Loans in the amount specified therein.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


32

















 


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


 


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


 


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


 


3.06                        Matters Applicable to all Requests for
Compensation.


 


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


 


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


 


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


 


ARTICLE
IV.

CONDITIONS PRECEDENT


 


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


 


(a)                                  Unless
waived by all the Lenders, the Administrative Agent’s receipt of the following,
each of which shall be originals or facsimiles (followed promptly by
originals), each of which shall be dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date):


 


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


 


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


 


33

















 


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


 


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


 


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


 


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


 


(vii)                           evidence
that the Existing Credit Agreement has been or concurrently with the Closing
Date is being terminated and that all amounts owing thereunder have been repaid
in full; and


 


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


 


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


 


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


 


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


 


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


 


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


 


(a)                                  The
representations and warranties of the Borrower contained in Article V (other than
Sections 5.04, 5.05(b),
5.06, 5.07(a), and 5.09, unless such
Request for Credit Extension is requested to be honored on the Closing Date)
and each Compliance Certificate shall be true and correct on and as of


 


34

















 


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


 


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


 


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


 


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


 


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


 


ARTICLE
V.

REPRESENTATIONS AND WARRANTIES


 


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


 


5.01                        Existence, Qualification, and Power; Compliance with Laws.  The Borrower and each of its Subsidiaries
(a) is an entity duly organized or formed, validly existing, and in good
standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all
governmental licenses, authorizations, consents, and approvals to own its
assets and to carry on its business, (c) is duly qualified and is licensed and
in good standing under the Laws of each jurisdiction where its ownership,
lease, or operation of properties or the conduct of its business requires such
qualification or license, and (d) is in compliance with all Laws, except in
each case referred to in clauses (b), (c), or (d) of this Section 5.01, to the extent that failure to
do so would not reasonably be expected to have a Material Adverse Effect.


 


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


 


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


 


5.04                        Binding Effect. 
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been duly executed and delivered by the Borrower.  This Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid, and binding


 


35

















 


obligation of the
Borrower, enforceable against the Borrower in accordance with its terms, except
as enforceability may be limited by general principles of equity and applicable
Debtor Relief Laws.


 


5.05                        Financial Statements; No Material Adverse Effect.  (a) The Current Financials (i) were prepared
in accordance with GAAP throughout the period covered thereby, except as
otherwise expressly noted therein, (ii) fairly present, in all material
respects, the financial condition of the Borrower and its Subsidiaries as of
the date thereof and their results of operations for the period covered thereby
in accordance with GAAP throughout the period covered thereby, except as
otherwise expressly noted therein, and (iii) show all material indebtedness and
other liabilities, direct or contingent, of the Borrower and its Subsidiaries
as of the date thereof, including liabilities for taxes, material commitments,
and Indebtedness in accordance with GAAP throughout the period covered thereby;
and


 


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


 


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


 


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


 


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


 


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


 


5.10                        Taxes.  The Borrower
and its Subsidiaries have filed all federal, state, and other material tax
returns and reports required to be filed, and have paid all material federal,
state, and other taxes, assessments, fees, and other governmental charges
levied or imposed upon them or their properties, income, or assets otherwise
due and payable, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP. 
There is no proposed tax assessment against the Borrower or any
Subsidiary that would, if made, have a Material Adverse Effect.


 


36

















 


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


 


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


 


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


 


(c)                                  (i)  No ERISA Event has occurred and is
continuing or is reasonably expected to occur, (ii) no Pension Plan has any
Unfunded Pension Liability, (iii) neither the Borrower nor any ERISA Affiliate
has incurred, or reasonably expects to incur, any liability under Title IV of  ERISA
with respect to any Pension Plan (other than premiums due and not delinquent
under Section
4007 of  ERISA), other than such liabilities which have been
discharged on or prior to the Closing Date, (iv) neither the Borrower nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219
of  ERISA, would result in such liability) under Sections
4201 or 4243 of  ERISA with respect to a Multiemployer
Plan, other than such liabilities which have been discharged on or prior to the
Closing Date, and (v) neither the Borrower nor any ERISA Affiliate has engaged
and is continuing to engage in a transaction that could be subject to Sections
4069 or 4212(c) of  ERISA.


 


5.12                        Margin Regulations; Investment Company Act; Public
Utility Holding Company Act.


 


(a)                                  The
Borrower is not engaged and will not engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the Board), or extending credit
for the purpose of purchasing or carrying margin stock. Following the
application of the proceeds of any Borrowing or drawing under any 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 the provisions of Sections 7.01 or 7.04 will be margin stock.


 


(b)                                 None
of the Borrower, any “Affiliate” (as defined in the Public
Utility Holding Company Act of 1935, and excluding any natural
Persons) of the Borrower, or any Subsidiary (i) is a “holding company” within the
meaning of the Public Utility Holding Company Act of 1935, or (ii) is or is
required to be registered as an “investment  company” under the Investment
Company Act of 1940.


 


37

















 


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


 


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


 


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


 


ARTICLE
VI.

AFFIRMATIVE COVENANTS


 


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


 


6.01                        Financial Statements.   Deliver
to the Administrative Agent:


 


(a)                                  as
soon as available, but in any event within 120 days after the end of each
fiscal year of the Borrower, Financial Statements showing the consolidated
financial condition and results of operations of the Borrower and its
Subsidiaries as at the end of such fiscal year, accompanied by a report and
opinion of an independent certified public accountant of nationally recognized
standing reasonably acceptable to the Required Lenders, which report and
opinion shall be prepared in accordance with generally accepted auditing
standards and shall not be subject to any “going concern” or like qualification or
exception or any qualification or exception as to the scope of the audit nor to
any qualifications and exceptions not reasonably acceptable to the
Administrative Agent; and


 


(b)                                 as
soon as available, but in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower, Financial
Statements showing the consolidated financial condition and results of
operations of the Borrower and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated statements of income and cash flows for
such fiscal quarter and for the portion of the Borrower’s fiscal year then
ended, all in reasonable detail and certified by a Responsible Officer of the
Borrower as fairly presenting, in all material respects, the financial
condition, results of operations and cash flows of the Borrower and its
consolidated Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes.


 


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


 


38

















 


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


 


(b)                                 concurrently
with the delivery of the Financial Statements referred to in Sections 6.01(a)
and (b), a duly completed
Compliance Certificate signed by a Responsible Officer of the Borrower;


 


(c)                                  promptly
after the same are available, copies (which may be delivered in an electronic
format satisfactory to the Administrative Agent) of each of the following
documents of the Borrower not otherwise required to be delivered to the
Administrative Agent pursuant to this Agreement:


 


(i)                                     proxy
statements and annual reports to shareholders;


 


(ii)                                  annual
reports on Form 10-K; and


 


(iii)                               quarterly
reports on Form 10-Q;


 


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


 


(e)                                  promptly
after the Borrower has notified the Administrative Agent of any intention by
the Borrower to treat the Loans and/or Letters of Credit and related
transactions as being a “reportable transaction” (within the
meaning of Treasury Regulation Section 1.6011-4), a duly completed copy
of IRS Form 8886 or any successor form; and


 


(f)                                    as
soon as reasonably practicable, such additional information, in form and detail
reasonably satisfactory to the Administrative Agent or the Lender requesting
the information regarding the business, financial, or corporate affairs of the
Borrower or any Subsidiary, or compliance with the terms of the Loan Documents,
as the Administrative Agent or any Lender may from time to time reasonably
request by written notice to the Borrower.


 


6.03                        Notices.


 


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


 


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


 


(b)                                 of
any matter that has resulted in a Material Adverse Effect or would reasonably
be expected to have a Material Adverse Effect;


 


(c)                                  of
any litigation, investigation, or proceeding affecting the Borrower or any
Subsidiary, including pursuant to any Environmental Law, (i) in which the
amount involved exceeds $250,000,000,


 


39

















 


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


 


(d)                                 of
the occurrence of any material ERISA Event.


 


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


 


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


 


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


 


6.06                        Maintenance of Properties.  (a) Maintain, preserve, and protect all of
its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted,
and (b) make all necessary repairs thereto and renewals and replacements
thereof, except, in either case, where the failure to do so would not
reasonably be expected to have a Material Adverse Effect.


 


6.07                        Maintenance of Insurance.  Maintain with financially sound and reputable insurance companies
not Affiliates of the Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons; provided
that the Borrower or its Subsidiaries may maintain self-insurance in
connection with the foregoing property insurance requirements, so long as
the same is maintained in accordance with sound business practices.


 


6.08                        Compliance with Laws.  Comply in
all material respects with the requirements of all Laws applicable to it or to
its business or property, except in such instances in which (i) such
requirement of Law is being contested in good faith or a bona fide dispute
exists with respect thereto, or (ii) the failure to comply therewith would not
be reasonably expected to have a Material Adverse Effect.


 


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


 


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


 


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


 


ARTICLE
VII.

NEGATIVE COVENANTS


 


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


 


7.01                        Liens.  The Borrower shall not, nor shall it permit
any Subsidiary to, directly or indirectly, create, incur, assume or suffer to
exist, any Lien upon any of its property, assets, or revenues, whether now
owned or hereafter acquired, other than the following:


 


(a)                                  Liens
pursuant to any Loan Document;


 


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


 


(c)                                  Liens
for taxes not yet due or which are being contested in good faith and by
appropriate proceedings, diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;


 


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


 


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


 


41

















 


(f)                                    deposits
to secure the performance of bids, trade contracts, and leases (other than
Indebtedness), statutory obligations, surety bonds (other than bonds related to
judgments and litigation), performance bonds, and other obligations of a like
nature incurred in the ordinary course of business;


 


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


 


(h)                                 Liens
securing judgments for the payment of money in an aggregate amount not in
excess of $250,000,000 (except to the extent covered by independent third-party
insurance as to which the insurer has acknowledged in writing its obligation to
cover), unless any such judgment remains undischarged for a period of more than
60 consecutive days during which execution is not effectively stayed;


 


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


 


(j)                                     Liens
securing Indebtedness permitted under Section 7.02(f); and


 


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


 


7.02                        Indebtedness.  The Borrower shall not, directly or
indirectly, create, incur, assume or suffer to exist any Indebtedness, except:


 


(a)                                  Indebtedness
under the Loan Documents;


 


(b)                                 Indebtedness
existing on the date hereof and listed on Schedule 7.02 as Indebtedness of the Borrower, in an
amount not to exceed the amount listed on Schedule 7.02, and refinancings, refundings, renewals,
extensions, and replacements of such Indebtedness that do not increase the
outstanding principal amount thereof at the time of such refinancing,
refunding, renewal, extension, or replacement;


 


(c)                                  Guaranty
Obligations of the Borrower in respect of Indebtedness of Subsidiaries
permitted under Section 7.03;


 


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


 


42

















 


(e)                                  Indebtedness
in respect of capital leases, Synthetic Lease Obligations, and purchase money
obligations for fixed or capital assets, so long as any Liens securing such
Indebtedness satisfy the requirements of Section 7.01(i);


 


(f)                                    Other
secured Indebtedness of the Borrower in an aggregate principal amount not to
exceed $25,000,000 at any time outstanding;


 


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


 


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


 


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


 


(a)                                  Indebtedness
existing on the date hereof and listed on Schedule 7.02 as Indebtedness of a Subsidiary, in an
amount not to exceed the amount listed on Schedule 7.02, and refinancings, refundings, renewals,
extensions, and replacements of such Indebtedness that do not increase the
outstanding principal amount thereof at the time of such refinancing,
refunding, renewal, extension, or replacement;


 


(b)                                 Indebtedness
to the Borrower or any other Subsidiary;


 


(c)                                  Indebtedness assumed in
connection with the acquisition of an asset or Indebtedness of a Person, in
either case, existing at the time such asset or Person is acquired by, or
merged or consolidated with or into, any Subsidiary (and renewals, extensions,
amendments, and modifications of such Indebtedness satisfying the requirements of clause (a) preceding), so long as (i) such
Indebtedness was not
incurred in contemplation of such acquisition, merger, or consolidation,
(ii) no Event of Default or Default then exists or arises as a result
thereof, and (iii) no other Subsidiary (other than the existing obligors at the
time such Person or asset was acquired) shall have or incur any direct or
indirect liability for such Indebtedness;
and


 


(d)                                 other
unsecured Indebtedness of any Subsidiary not otherwise permitted by this Section 7.03, so long as
no Default or Event of Default exists on the date any such Indebtedness is
created, incurred, or assumed, or arises after giving effect to such incurrence
of Indebtedness;


 


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


 


43

















 


(f)                                    Indebtedness
in respect of capital leases, Synthetic Lease Obligations, and purchase money
obligations for fixed or capital assets, so long as any Liens securing such
Indebtedness satisfy the requirements of Section 7.01(i).


 


Notwithstanding anything in this Section 7.03 to the contrary, the aggregate principal
amount of all Indebtedness of the Subsidiaries, without duplication, may not
exceed, on any date of determination, 20% of the book value of the consolidated
assets of the Borrower and the Subsidiaries, determined as of the date of the
Audited Financial Statements; provided that, if the Termination Date is
extended pursuant to Section 2.14, such book value of the consolidated assets
of the Borrower and its Subsidiaries will be determined as of the date of, and
with respect to, the Current Financials most recently delivered prior to the
Extension Effective Date pursuant to Section 6.01(a).


 


7.04                        Fundamental Changes.


 


(a)                                  The
Borrower will not:


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)                                  For
purposes of subsection (a)(ii),
the book value of the consolidated assets of the Borrower and its Subsidiaries
will be determined as of the date of, and with respect to, the Audited
Financial Statements; provided that, if the Termination Date is
extended pursuant to Section 2.14, such book value of the consolidated assets
of the Borrower and its Subsidiaries will be determined as of the date of, and
with respect to, the Current Financials most recently delivered prior to the
Extension Effective Date pursuant to Section 6.01(a), and the provisions of the preceding subsection (a),  will apply to
transactions arising on or after the Extension Effective Date.


 


44

















 


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


 


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


 


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


 


(a)                                  restricts
or limits any Subsidiary from:


 


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


 


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


 


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


 


7.08                        Use of Proceeds.  The
Borrower shall not permit any part of the proceeds of any Credit Extension to
be used, directly or indirectly, in any manner that might cause the Credit
Extension or the application of such proceeds to violate Regulations T, U,
or X
or any other regulation of the Board or to violate the Securities Act of 1933.


 


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


 


ARTICLE
VIII.

EVENTS OF DEFAULT AND REMEDIES


 


8.01                        Events of Default.


 


Any of the following shall constitute an Event of
Default:


 


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


 


45

















 


Loan or any L/C Borrowing, any Facility Fee, or any
Utilization Fee, or (iii) any other fee, including any Letter of Credit Fee, or
amount invoiced to the Borrower and payable hereunder or under any other Loan
Document; or


 


(b)                                 Specific
Covenants.  (i) The Borrower fails
to perform or observe any term, covenant, or agreement contained in any of Sections 2.03(g), 6.03, 6.11, 7.04,
7.05, 7.08, or  7.09,
or (ii) the Borrower fails to perform or observe any term, covenant, or
agreement contained in any of Sections 6.02(f), 6.05, or 6.10 and such failure continues for five
Business Days, or (iii) the Borrower fails to perform or observe any term,
covenant, or agreement contained in any of Sections 6.01 or 6.02(a), (b), or (c), and such failure continues for five Business Days
after the earlier of the date a Responsible Officer of the Borrower has
knowledge of such failure or written notice thereof to the Borrower from the
Administrative Agent or any Lender;  or


 


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


 


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


 


(e)                                  Cross-Default.


 


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


 


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


 


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


 


46

















 


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


 


(f)                                    Insolvency
Proceedings, Etc.  The Borrower or
any of its Subsidiaries institutes or by any act or failure to act indicates
its consent to, approval of, or acquiescence in any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors, or applies for
or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator, or similar officer for it or for all or
any material part of its property, or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator, or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days, or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or


 


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


 


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


 


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


 


(j)                                     Invalidity
of Loan Documents.  (i) This
Agreement, any Note, any Letter of Credit Application, the Arranger Fee Letter,
or the Bank of America Fee Letter at any time after its execution and delivery
and as a result of any act or omission of the Borrower (other than with the
agreement of all the Lenders (or Bank of America, in the case of the Bank of
America Fee Letter, and the Arrangers, in the case of the Arranger Fee Letter)
or upon satisfaction in full of all the Obligations), ceases to be in full


 


47

















 


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


 


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


 


(a)                                  declare
the commitment of each Lender to make Loans and 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
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest, or other notice of any kind, all of which are hereby expressly
waived by the Borrower;


 


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


 


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


 


provided
that, upon the occurrence of any event specified in subsection (f) of Section 8.01,
the obligation of each Lender to make Loans and the obligation of the L/C
Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable, and the obligation of the
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the
Administrative Agent or any Lender.


 


8.03                        Application of Funds.  After
exercise of remedies provided for in Section 8.02 (or after the Loans have automatically
become immediately due and payable and the Borrower has automatically been
required to Cash Collateralize the L/C Obligations as set forth in the proviso
to Section 8.02), any
amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:


 


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


 


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


 


48

















 


Third,
to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and L/C Borrowings, ratably among the Lenders in
proportion to the respective amounts described in this clause  Third payable to them;


 


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


 


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


 


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


 


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


 


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


 


ARTICLE
IX.

AGREEMENT AMONG LENDERS


 


9.01                        Appointment and Authorization of
Administrative Agent.


 


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


 


(b)                                 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 (i) provided to the
Administrative Agent in this Article IX 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


 


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


 


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


 


9.03                        Liability of Agent-Related Persons.  No Agent-Related Person shall (a) be liable
for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation, or warranty made by the Borrower or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement, or other document referred to or provided for in, or
received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability, or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Borrower or any other party to any Loan
Document to perform its obligations hereunder or thereunder.  No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Borrower or any Affiliate thereof.


 


9.04                        Reliance by Administrative Agent.


 


(a)                                  The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement, electronic mail message, or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent, or made by the proper Person or Persons, and upon
advice and statements of legal counsel (including counsel to the Borrower),
independent accountants and other experts selected by the Administrative
Agent.  The Administrative Agent shall
be fully justified in failing or refusing to take any action under any Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action.  The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the Required Lenders (or such greater number of Lenders
as may be expressly required hereby in any instance), if required hereunder,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders.


 


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


 


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9.05                        Notice of Default.  The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to defaults
in the payment of principal, interest, and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the Administrative
Agent shall have received written notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a “notice of default.”  The Administrative Agent will notify the
Lenders of its receipt of any such notice. 
The Administrative Agent shall take such action with respect to such
Default or Event of Default as may be directed by the Required Lenders in
accordance with Article VIII;
provided
that, unless and until the Administrative Agent has received any
such direction, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best interest
of the Lenders.


 


9.06                        Credit Decision; Disclosure of
Information by Administrative Agent and Syndication Agent.  Each Lender acknowledges that no
Agent-Related Person has made any representation or warranty to it, and that no
act by the Administrative Agent or the Syndication Agent hereafter taken,
including any consent to and acceptance of any assignment or review of the
affairs of the Borrower or any Affiliate thereof, shall be deemed to constitute
any representation or warranty by any Agent-Related Person to any Lender as to
any matter, including whether Agent-Related Persons have disclosed material
information in their possession.  Each
Lender represents to the Administrative Agent and the Syndication Agent that it
has, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial, and other condition and creditworthiness of the Borrower
and its respective Subsidiaries, and all applicable bank or other regulatory
Laws relating to the transactions contemplated hereby, and made its own
decision to enter into this Agreement and to extend credit to the Borrower
hereunder.  Each Lender also represents
that it will, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals, and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial, and other condition
and creditworthiness of the Borrower. Except for notices, reports, and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, neither the Administrative Agent nor the
Syndication Agent, as applicable, shall have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
prospects, operations, property, financial, and other condition or
creditworthiness of the Borrower or any of its respective Affiliates which may
come into the possession of any Agent-Related Person.


 


9.07                        Indemnification of Agent-Related
Persons.  Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand each
Agent-Related Person (to the extent not reimbursed by or on behalf of the Borrower
and without limiting its obligation to do so), in accordance with their Pro
Rata Shares, and hold harmless each Agent-Related Person from and against any
and all Indemnified Liabilities incurred by it; provided that no Lender
shall be liable for the payment to any Agent-Related Person of any portion of
such Indemnified Liabilities to the extent determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such
Agent-Related Person’s own gross negligence or willful misconduct or from such
Agent-Related Person’s breach of this Agreement; provided that no action
taken in accordance with the directions of the Required Lenders (or such
greater number of Lenders as may be expressly required hereby in any instance)
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section 9.07.  Without limitation of the foregoing, each
Lender shall reimburse the Administrative Agent upon demand for its Pro Rata
Share of any costs or out-of-pocket expenses (including attorneys’ fees)


 


51

















 


incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment, or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrower.  The undertaking in this Section 9.07
shall survive termination of the Commitments, the payment of all Obligations
hereunder, and the resignation or replacement of the Administrative Agent or
the Syndication Agent.


 


9.08                        Administrative Agent in its Individual
Capacity.  Bank of America and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting, or other business with the Borrower and its
respective Affiliates as though Bank of America were not the Administrative
Agent or the L/C Issuer hereunder and without notice to or consent of the
Lenders.  The Lenders acknowledge that,
pursuant to such activities, Bank of America or its Affiliates may receive
information regarding the Borrower or its Affiliates (including information
that may be subject to confidentiality obligations in favor of the Borrower or
such Affiliate) and acknowledge that the Administrative Agent shall be under no
obligation to provide such information to them.  With respect to its Loans, Bank of America shall have the same
rights and powers under this Agreement as any other Lender and may exercise
such rights and powers as though it were not the Administrative Agent or the
L/C Issuer, and the terms “Lender” and “Lenders” include Bank of
America in its individual capacity.


 


9.09                        Successor Administrative Agent.  The Administrative Agent may resign as
Administrative Agent upon 30 days’ notice to the Lenders; provided that any
such resignation by Bank of America shall also constitute its resignation as
L/C Issuer.  If the Administrative Agent
resigns under this Agreement, the Required Lenders shall appoint from among the
Lenders a successor administrative agent for the Lenders which successor
administrative agent shall be consented to by the Borrower at all times other
than during the existence of an Event of Default (which consent of the Borrower
shall not be unreasonably withheld or delayed).  If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the Administrative
Agent may appoint, after consulting with the Lenders and the Borrower, a
successor administrative agent from among the Lenders.  Upon the acceptance of its appointment as
successor administrative agent hereunder, such Person acting as such successor
administrative agent shall succeed to all the rights, powers, and duties of the
retiring Administrative Agent and L/C Issuer and the respective terms “Administrative
Agent” and “L/C Issuer” shall mean such successor
administrative agent and Letter of Credit issuer, and the retiring
Administrative Agent’s appointment, powers and duties as Administrative Agent
shall be terminated and the retiring L/C Issuer’s rights, powers, and duties as
such shall be terminated, without any other or further act or deed on the part
of such retiring L/C Issuer or any other Lender, other than the right of the
retiring L/C Issuer to require the successor L/C Issuer to issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or to 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. 
After any retiring Administrative Agent’s resignation hereunder as
Administrative Agent, the provisions of this Article IX and Sections 10.04 and 10.05 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement.  If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent’s notice of
resignation, the retiring Administrative Agent’s resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.


 


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9.10                        Administrative Agent May File Proofs of
Claim.  In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition, or other judicial proceeding relative to the Borrower, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on 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 Loans, the L/C Obligations, and all other
Obligations that are owing and unpaid and to file such other documents as may
be necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements, and advances of the Lenders and the Administrative
Agent and their respective agents and counsel and all other amounts due the
Lenders and the Administrative Agent under Sections 2.09 and 10.04) allowed in such judicial proceeding; and


 


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


 


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


 


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


 


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


 


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ARTICLE
X.

MISCELLANEOUS


 


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


 


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


 


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


 


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


 


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


 


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


 


and, provided,  further, that (i) no amendment,
waiver, or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Required Lenders or each affected Lender, as the case
may be, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document; (ii) no amendment, waiver, or consent
shall, unless in writing and signed by the L/C Issuer in addition to the
Lenders required above, affect the rights or duties of the L/C Issuer under
this Agreement or any Letter of Credit Application relating to any Letter of
Credit issued or to be issued by it; and (iii) the Arranger Fee Letter and the
Bank of America Fee Letter may be amended, or rights or privileges thereunder
waived, in a writing executed only by the parties thereto.  Notwithstanding anything to the contrary
herein, any Defaulting Lender shall not have any right to approve or disapprove
any amendment, waiver, or consent hereunder, except that the Commitment of such
Defaulting Lender may not be increased or extended without the consent of such
Defaulting Lender.


 


10.02                 Notices and Other Communications;
Facsimile Copies.


 


(a)                                  General.  Unless otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission). 
All such written notices shall be mailed, faxed, or delivered to the
applicable address, facsimile number or (subject to subsection (c) below) electronic mail
address, and all notices and other communications


 


54

















 


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


 


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


 


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


 


All such notices and other communications shall be
deemed to be given or made upon the earlier to occur of (i) actual receipt by
the relevant party hereto and (ii) (A) if delivered by hand or by courier, when
signed for by or on behalf of the relevant party hereto; (B) if delivered by
mail, four Business Days after deposit in the mails, postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone;
and (D) if delivered by electronic mail (which form of delivery is subject to
the provisions of subsection (c)
below), when delivered; provided  that, notices and other
communications to the Administrative Agent and the L/C Issuer pursuant to Article II shall not
be effective until actually received by such Person.  In no event shall a voicemail message be effective as a notice,
communication, or confirmation hereunder.


 


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


 


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


 


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


 


55

















 


10.03                 No Waiver; Cumulative Remedies.  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 preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers, and privileges
herein or therein provided are cumulative and not exclusive of any rights,
remedies, powers, and privileges provided by law.


 


10.04                 Attorneys’ Fees, Expenses and Taxes.  The Borrower agrees (a) to pay or reimburse
the Administrative Agent for all reasonable costs and expenses incurred in
connection with the development, preparation, negotiation, and execution of
this Agreement and the other Loan Documents and any amendment, waiver, consent,
or other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all reasonable attorneys’ fees, and (b) to pay or reimburse
the Administrative Agent, the L/C Issuer, and each Lender for all reasonable
costs and expenses incurred in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement or
the other Loan Documents (including all such costs and expenses incurred during
any “workout”
or restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all reasonable
attorneys’ fees.  The foregoing costs
and expenses shall include all search, filing, recording, title insurance, and
appraisal charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Administrative Agent and the cost of independent
public accountants and other outside experts retained by the Administrative
Agent, counsel to the Administrative Agent, the L/C Issuer, or any Lender.  All amounts due under this Section 10.04 shall
be payable within 30 Business Days after demand therefor.  The agreements in this Section 10.04 shall survive the
termination of the Total Commitment and repayment of all the other Obligations.


 


10.05                 Indemnification by the Borrower.  Whether or not the transactions contemplated
hereby are consummated, the Borrower shall indemnify and hold harmless each
Agent-Related Person,  the L/C Issuer,
each Lender, and their respective Affiliates, directors, officers, employees,
counsel, agents, attorneys, and attorneys-in-fact (collectively the “Indemnitees”) from
and against any and all liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses, and disbursements
(including reasonable attorneys’ fees and expenses) of any kind or nature
whatsoever which may at any time be imposed on, incurred by or asserted against
any such Indemnitee in any way relating to or arising out of or in connection
with (a) the execution, delivery, enforcement, performance, or administration
of any Loan Document or any other agreement, letter, or instrument delivered in
connection with the transactions contemplated thereby or the consummation of
the transactions contemplated thereby, (b) any Commitment, Loan or 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), or (c) any actual or
alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by the Borrowers or any Subsidiary, or
any Environmental Liability related in any way to the Borrower or any
Subsidiary, or (d) any claim, litigation, investigation, or proceeding relating
to any of the foregoing, whether based on contract, tort, or any other theory
(including any investigation of, preparation for, or defense of any pending or
threatened claim, investigation, litigation, or proceeding) and regardless of
whether any Indemnitee is a party thereto (all the foregoing, collectively, the
“Indemnified Liabilities”),
in all cases, whether or not caused by or arising, in whole or in part, out of
the negligence of the Indemnitee; provided  that, such indemnity shall
not, as to any Indemnitee, be available to the extent that such liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses, or


 


56

















 


disbursements are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee, or from such Indemnitee’s breach of this
Agreement.  No Indemnitee shall be
liable for any damages arising from the use by others of any information or
other materials obtained through IntraLinks or other similar information
transmission systems in connection with this Agreement, nor shall any
Indemnitee have any liability for any indirect or consequential damages
relating to this Agreement or any other Loan Document or arising out of its
activities in connection herewith or therewith (whether before or after the
Closing Date).  All amounts due under
this Section 10.05 shall
be payable no later than ten Business Days after demand therefor. The
agreements in this Section 10.05
shall survive the resignation of the Administrative Agent or the L/C Issuer,
the replacement of any Lender, the termination of the Total Commitment, and the
repayment, satisfaction or discharge of all the other Obligations. An
Indemnitee will promptly notify the Borrower upon receipt of written notice of
any claim, action, suit, or proceeding made, commenced, or threatened that
could give rise to an Indemnified Liability; provided that, any failure
by such Indemnitee to give such notice shall not relieve the Borrower from its
obligations to indemnify the Indemnitee unless (and then solely to the extent)
the Borrower is materially prejudiced thereby.


 


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


 


10.07                 Successors and Assigns.


 


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


 


(b)                                 Any
Lender may at any time assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and its Loans (including for purposes of this subsection (b),
participations in L/C Obligations) at the time owing to it); provided
that (i) except in the case of an assignment of the entire remaining
amount of the


 


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assigning Lender’s Commitment and the Loans at the time owing to it or
in the case of an assignment to a Lender or a Lender Affiliate or an Approved
Fund (as defined in subsection (h)  of
this Section 10.07)
with respect to a Lender, the aggregate amount of the Commitment (which for
this purpose includes any Loans outstanding thereunder) or principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000, unless each of the Administrative
Agent and the L/C Issuer and, so long as no Event of Default has occurred and
is continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed), (ii) each partial assignment shall be made
as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under this Agreement with respect to the Loans or the
Commitment assigned, and (iii) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500. 
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c)
of this Section 10.07,
from and after the effective date specified in each Assignment and Assumption,
the Eligible Assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 10.04,
and 10.05 for claims
arising with respect to circumstances occurring prior to the assignment).  Upon request, the Borrower (at its expense)
shall execute and deliver new or replacement Notes to the assigning Lender and
the assignee Lender.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this subsection (b) shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with, and subject to, subsection (d) of this Section 10.07.


 


(c)                                  The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at the Administrative Agent’s Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and participations in 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.  Administrative Agent shall
provide copies of the Register to the Borrower upon its reasonable request.


 


(d)                                 Any
Lender at any time may, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender’s participations in L/C
Obligations) at the time owing to it); provided  that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrower, the Administrative Agent, and
the other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this
Agreement.  Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that


 


58

















 


such Lender shall retain the sole right to enforce this Agreement and
to approve any amendment, modification, or waiver of any provision of this
Agreement; provided
that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment, waiver, or
other modification that would (i) postpone any date upon which any payment of
money is scheduled to be paid to such Participant, or (ii) reduce the
principal, interest, fees or other amounts payable to such Participant.  Subject to subsection (e) of this Section 10.07, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04, and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section 10.07.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.09 as though it were a
Lender; provided
that (i) such Participant agrees to be subject to Section 2.13 as
though it were a Lender and (ii) the Borrower has given prior written consent
to the sale of the participation to such Participant.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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“Lender Affiliate”
means, with respect to a Lender, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the specified Lender. 
“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings
correlative thereto.


 


Notwithstanding anything to the contrary contained
herein, if at any time the L/C Issuer assigns all of its Commitment and Loans
pursuant to subsection (b)
above, the L/C Issuer may upon 30 days’ notice to the Borrower and the Lenders,
resign as L/C Issuer.  In the event of
such resignation, the Borrower shall be entitled to appoint from among the
Lenders a successor L/C Issuer hereunder. Upon the appointment of a successor
L/C Issuer, such Person acting as such successor L/C Issuer shall succeed to
all the rights, powers, and duties of the retiring L/C Issuer, and the term “L/C Issuer”
shall mean such successor Letter of Credit issuer, and the retiring L/C
Issuer’s rights, powers, and duties as L/C Issuer shall be terminated, without
any other or further act or deed on the part of the retiring L/C Issuer or any
Lender, other than the right of the retiring L/C Issuer to require the
successor L/C Issuer to issue letters of credit in substitution for the Letters
of Credit, if any, outstanding at the time of such succession or to 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.
The failure by the Borrower to appoint any such successor shall not affect the
resignation of the retiring L/C Issuer; provided that if the L/C Issuer retires
and no successor L/C Issuer has been appointed by the Borrower, the retiring
L/C Issuer shall retain all the rights and obligations of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).


 


10.08                 Confidentiality.  Each of the Administrative Agent, the L/C
Issuer, and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates’ directors, officers, employees, and agents,
including accountants, legal counsel, and other advisors who have a need to
know such information in connection with the transactions contemplated by this
Agreement or the provisions of other financial products or services to Borrower
(and each disclosing party agrees that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority having jurisdiction over the disclosing
party, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section 10.08, to (i) any Eligible Assignee of or
Participant in, or any prospective Eligible Assignee of or Participant in, any
of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty’s or prospective counterparty’s professional advisor)
to any credit derivative transaction relating to obligations of the Borrower,
(g) with the consent of the Borrower, (h) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this Section 10.08 or any
similar confidentiality undertaking by which the disclosing party is bound, or
(ii) becomes available to the Administrative Agent, the L/C Issuer, or any
Lender on a nonconfidential basis from a source other than the Borrower, and
not from a Person party to the Loan Documents, or (i) to the National
Association of Insurance Commissioners or any other similar organization.  In addition, the Administrative Agent, the
L/C Issuer, and the Lenders may disclose the (i) existence of this Agreement,
(ii) the initial pricing under this Agreement, (iii) the Termination Date and
the Maturity Date, (iv) the initial principal amount of this


 


60

















 


Agreement, and (v) the identities of the Administrative Agent, the
Syndication Agent, the L/C Issuer, the Arrangers, and the documentation agents
under this Agreement to market data collectors, similar service providers to
the lending industry, and service providers to the Administrative Agent, the
L/C Issuer, and the Lenders in connection with the administration and
management of this Agreement, the other Loan Documents, the Commitments, the
Loans, and the Letters of Credit.  For
the purposes of this Section 10.08, “Information” means all information received
from the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent, the L/C Issuer, or
any Lender on a nonconfidential basis prior to disclosure by the Borrower.  The Administrative Agent, the L/C Issuer,
the Syndication Agent, and each Lender shall be considered to have 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. Notwithstanding anything herein to the
contrary, “Information”
shall not include, and each party hereto may disclose without limitation of any
kind, any information with respect to the “tax treatment” and “tax structure” (in each
case, within the meaning of Treasury Regulation Section 1.6011-4) of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to such party relating to
such tax treatment and tax structure; provided that, with respect to any
document or similar item that in either case contains information concerning
the tax treatment or tax structure of the transaction as well as other
information, this sentence shall only apply to such portions of the document or
similar item that relate to the tax treatment or tax structure of the
transactions contemplated hereby.


 


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


 


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


 


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


 


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


 


10.13                 Survival of Representations and
Warranties.  All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof.


 


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


 


10.15                 Foreign Lenders.


 


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


 


(ii)                                  Each
Foreign Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Lender
under any of the Loan Documents (for example, in the case of a typical participation
by such Lender), shall deliver to the Administrative Agent on the date when
such Foreign Lender ceases to act for its own account with respect to any
portion of any such sums paid or payable, and at such other


 


62

















 


times as may be necessary in the determination of the
Administrative Agent (in the reasonable exercise of its discretion), (A) two
duly signed completed copies of the forms or statements required to be provided
by such Lender as set forth above, to establish the portion of any such sums
paid or payable with respect to which such Lender acts for its own account that
is not subject to U.S. withholding tax, and (B) two duly signed completed
copies of IRS Form W-8IMY (or any successor thereto), together with any
information such Lender chooses to transmit with such form, and any other
certificate or statement of exemption required under the Code, to establish
that such Lender is not acting for its own account with respect to a portion of
any such sums payable to such Lender.


 


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


 


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


 


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


 


(c)                                  If
any Governmental Authority asserts that the Administrative Agent did not
properly withhold or backup withhold, as the case may be, any tax or other
amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section 10.15, and costs and expenses (including
attorneys’ fees and expenses) of the Administrative Agent.  The obligation of the Lenders under this Section 10.15 shall
survive the termination of the Total Commitment, repayment of all the
Obligations hereunder, and the resignation of the Administrative Agent.


 


10.16                 Removal and Replacement of Lenders.


 


(a)                                  Under
any circumstances set forth herein providing that the Borrower shall have the
right to remove or replace, as the case may be, a Lender as a party to this
Agreement, the Borrower may, upon notice to such Lender and the Administrative
Agent, (i) remove such Lender by terminating such Lender’s Commitment and repay
in full all principal, interest, fees, and other amounts owing or accrued


 


63

















 


to such Lender through the date of termination (including any amounts
payable pursuant to Section 3.05),
or (ii) replace such Lender by causing such Lender to assign all its
Commitment, Loans, and participations in L/C Obligations (without payment of
any assignment fee) pursuant to Section 10.07(b) to one or more other Lenders or
Eligible Assignees procured by the Borrower; provided  that,
if the Borrower elects to exercise such right with respect to any Lender
pursuant to Section 3.06(b),
it shall be obligated to remove or replace, as the case may be, all Lenders
that have made similar requests for compensation pursuant to Section 3.01 or 3.04.  If the Borrower proceeds under clause (i) of the
preceding sentence, the Borrower shall provide appropriate assurances and
indemnities (which may include letters of credit) to the L/C Issuer as it may
reasonably require with respect to the obligation of the removed Lender or
Lenders to fund participation interests in any L/C Obligations then
outstanding.  Any Lender being replaced
pursuant to clause (ii)
of the preceding sentence shall execute and deliver an Assignment and
Assumption with respect to such Lender’s Commitment, Loans, and participations
in L/C Obligations.


 


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


 


10.17                 Governing Law.


 


(a)                                  THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE; PROVIDED  THAT THE ADMINISTRATIVE
AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.


 


(b)                                 ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH
OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.  THE BORROWER, THE ADMINISTRATIVE AGENT, AND
EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED
THERETO.  THE BORROWER, THE
ADMINISTRATIVE AGENT, AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT, OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF SUCH STATE.


 


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


 


64

















 


A COPY OF THIS SECTION 10.18 WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.


 


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


 


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


 


[Remainder of Page 
Intentionally Left Blank


Signature Pages Follow]


 


65

















 


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


 


EXECUTED to be effective as of the Closing Date.


 


 


	
  ALLTEL
  CORPORATION, as the Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Scott T. Ford

  	
   

  
	
   

  	
   

  	
  Scott T. Ford

  
	
   

  	
   

  	
  Chief Executive Officer and President

  
					



 


 


 

















 


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


 


EXECUTED to be effective as of the Closing Date.


 


 


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

  Agent, the L/C Issuer, and a Lender

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Todd Shipley

  	
   

  
	
  Name:

  	
  Todd Shipley

  	
   

  
	
  Title:

  	
  Managing Director

  	
   

  
					



 

















 


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


 


EXECUTED to be effective as of the Closing Date.


 


	
  MERRILL
  LYNCH, PIERCE, FENNER & SMITH

  INCORPORATED,

  as the Syndication
  Agent

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Cecile Baker

  	
   

  
	
  Name:

  	
  Cecile Baker

  	
   

  
	
  Title:

  	
  Authorized Signatory

  	
   

  
					



 

















 


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


 


EXECUTED to be effective
as of the Closing Date.


 


	
  MERRILL
  LYNCH BANK USA,

  as a Lender

  
	
   

  
	
   

  
	
  By:

  	
  /s/ D. Kevin Imlay

  	
   

  
	
  Name:

  	
  D. Kevin Imlay

  	
   

  
	
  Title:

  	
  Senior Credit Officer

  	
   

  
					



 

















 


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


 


EXECUTED to be effective
as of the Closing Date.


 


	
  JPMORGAN
  CHASE BANK,

  as a Lender

  
	
   

  
	
   

  
	
  By:

  	
  /s/ David M. Mallett

  	
   

  
	
  Name:

  	
  David M. Mallett

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  
					



 

















 


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


 


EXECUTED to be effective
as of the Closing Date.


 


	
  CITIBANK,
  N.A., as a Lender

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Elizabeth H. Minnella

  	
   

  
	
  Name:

  	
  Elizabeth H. Minnella

  	
   

  
	
  Title:

  	
  Director

  	
   

  
					



 

















 


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


 


EXECUTED to be effective
as of the Closing Date.


 


	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION,

  as a Lender

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Mark L. Cook

  	
   

  
	
  Name:

  	
  Mark L. Cook

  	
   

  
	
  Title:

  	
  Director

  	
   

  
					



 

















 


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


 


EXECUTED to be effective
as of the Closing Date.


 


	
  SUNTRUST
  BANK, as a Lender

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Thomas C. King, Jr.

  	
   

  
	
  Name:

  	
  Thomas C. King, Jr.

  	
   

  
	
  Title:

  	
  Director

  	
   

  
					



 

















 


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


 


EXECUTED to be effective
as of the Closing Date.


 


	
  BANK
  ONE, NA, as a Lender

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Matthew J. Reilly

  	
   

  
	
  Name:

  	
  Matthew J. Reilly

  	
   

  
	
  Title:

  	
  Director

  	
   

  
					



 

















 


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


 


EXECUTED to be effective
as of the Closing Date.


 


	
  KEYBANK
  NATIONAL ASSOCIATION,

  as a Lender

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Christopher A. Swindell

  	
   

  
	
  Name:

  	
  Christopher A. Swindell

  	
   

  
	
  Title:

  	
  Portfolio Manager

  	
   

  
					



 

















 


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


 


EXECUTED to be effective
as of the Closing Date.


 


	
  REGIONS
  BANK, as a Lender

  
	
   

  
	
   

  
	
  By:

  	
  /s/ David Waller

  	
   

  
	
  Name:

  	
  David Waller

  	
   

  
	
  Title:

  	
  Vice President, Corporate Banking, Regions Bank

  	
   

  
					



 

















 


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


 


EXECUTED to be effective
as of the Closing Date.


 


	
  WILLIAM
  STREET COMMITMENT CORPORATION,

  (Recourse only to William Street Commitment Corporation)

  as a Lender

  
	
   

  
	
   

  
	
  By:

  	
  /s/ David Weil

  	
   

  
	
   

  	
  David Weil

  	
   

  
	
   

  	
  Treasurer