exv10w4






Exhibit 10.4




Credit Agreement




Dated as of April 25, 2006




among




Piedmont Natural Gas Company, Inc.




as the Borrower,




Bank of America, N.A.,




as Administrative Agent, Swing Line Lender




and




L/C Issuer,




and




The Other Lenders Party Hereto


















 





 

 








Published CUSIP Number:                                         




CREDIT AGREEMENT




Dated as of April 25, 2006




among




PIEDMONT NATURAL GAS COMPANY, INC.

as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,




and




The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC,

as

Sole Lead Arranger and Sole Book Manager




 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	Page
	 
	 	 	 	 	 	 
	 

	 	ARTICLE I.	 	 	 	 
	 

	 	DEFINITIONS AND ACCOUNTING TERMS	 	 	 	 
	 
	 	 	 	 	 	 
	1.01

	 	Defined Terms
	 	 	1	 
	1.02

	 	Other Interpretive Provisions
	 	 	20	 
	1.03

	 	Accounting Terms
	 	 	20	 
	1.04

	 	Rounding
	 	 	21	 
	1.05

	 	Times of Day
	 	 	21	 
	1.06

	 	Letter of Credit Amounts
	 	 	21	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE II.	 	 	 	 
	 

	 	THE COMMITMENTS AND CREDIT EXTENSIONS 	 	 	 	 
	 
	 	 	 	 	 	 
	2.01

	 	Revolving Loans
	 	 	21	 
	2.02

	 	Borrowings, Conversions and Continuations of Revolving Loans
	 	 	22	 
	2.03

	 	Letters of Credit
	 	 	23	 
	2.04

	 	Swing Line Loans
	 	 	32	 
	2.05

	 	Prepayments
	 	 	34	 
	2.06

	 	Termination or Reduction of Commitments
	 	 	35	 
	2.07

	 	Repayment of Loans
	 	 	36	 
	2.08

	 	Interest
	 	 	36	 
	2.09

	 	Fees
	 	 	37	 
	2.10

	 	Computation of Interest and Fees
	 	 	37	 
	2.11

	 	Evidence of Debt
	 	 	37	 
	2.12

	 	Payments Generally; Administrative Agent’s Clawback
	 	 	38	 
	2.13

	 	Sharing of Payments by Lenders
	 	 	40	 
	2.14

	 	Extension of Maturity Date
	 	 	40	 
	2.15

	 	Increase in Commitments
	 	 	42	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE III.	 	 	 	 
	 

	 	TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	 	 
	 
	 	 	 	 	 	 
	3.01

	 	Taxes
	 	 	43	 
	3.02

	 	Illegality
	 	 	45	 
	3.03

	 	Inability to Determine Rates
	 	 	45	 
	3.04

	 	Increased Costs
	 	 	46	 
	3.05

	 	Compensation for Losses
	 	 	47	 
	3.06

	 	Mitigation Obligations; Replacement of Lenders
	 	 	48	 
	3.07

	 	Survival
	 	 	48	 






i









 






	 	 	 	 	 	 	 
	Section	 	Page
	 
	 	 	 	 	 	 
	 

	 	ARTICLE IV.	 	 	 	 
	 

	 	CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 	 	 	 	 
	 
	 	 	 	 	 	 
	4.01

	 	Conditions of Initial Credit Extension
	 	 	48	 
	4.02

	 	Conditions to all Credit Extensions
	 	 	50	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE V.	 	 	 	 
	 

	 	REPRESENTATIONS AND WARRANTIES	 	 	 	 
	 
	 	 	 	 	 	 
	5.01

	 	Existence, Qualification and Power
	 	 	51	 
	5.02

	 	Authorization; No Contravention
	 	 	51	 
	5.03

	 	Governmental Authorization; Other Consents
	 	 	51	 
	5.04

	 	Binding Effect
	 	 	51	 
	5.05

	 	Financial Statements; No Material Adverse Effect; No Internal Control Event
	 	 	51	 
	5.06

	 	Litigation
	 	 	52	 
	5.07

	 	No Default
	 	 	52	 
	5.08

	 	Ownership of Property; Liens
	 	 	52	 
	5.09

	 	Environmental Compliance
	 	 	52	 
	5.10

	 	Insurance
	 	 	53	 
	5.11

	 	Taxes
	 	 	53	 
	5.12

	 	ERISA Compliance
	 	 	53	 
	5.13

	 	Subsidiaries; Equity Interests
	 	 	54	 
	5.14

	 	Margin Regulations; Investment Company Act
	 	 	54	 
	5.15

	 	Disclosure
	 	 	54	 
	5.16

	 	Compliance with Laws
	 	 	54	 
	5.17

	 	Taxpayer Identification Number
	 	 	55	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VI.	 	 	 	 
	 

	 	AFFIRMATIVE COVENANTS 	 	 	 	 
	 
	 	 	 	 	 	 
	6.01

	 	Financial Statements
	 	 	55	 
	6.02

	 	Certificates; Other Information
	 	 	56	 
	6.03

	 	Notices
	 	 	57	 
	6.04

	 	Payment of Obligations
	 	 	58	 
	6.05

	 	Preservation of Existence, Etc
	 	 	58	 
	6.06

	 	Maintenance of Properties
	 	 	58	 
	6.07

	 	Maintenance of Insurance
	 	 	58	 
	6.08

	 	Compliance with Laws
	 	 	58	 
	6.09

	 	Books and Records
	 	 	59	 
	6.10

	 	Inspection Rights
	 	 	59	 
	6.11

	 	Use of Proceeds
	 	 	59	 
	6.12

	 	Guarantors
	 	 	59	 






ii









 






	 	 	 	 	 	 	 
	Section	 	Page
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VII.	 	 	 	 
	 

	 	NEGATIVE COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	7.01

	 	Liens
	 	 	60	 
	7.02

	 	Fundamental Changes
	 	 	61	 
	7.03

	 	Change in Nature of Business
	 	 	62	 
	7.04

	 	Transactions with Affiliates
	 	 	62	 
	7.05

	 	Burdensome Agreements
	 	 	62	 
	7.06

	 	Ratio of Consolidated Funded Indebtedness to Total Capitalization
	 	 	63	 
	7 07

	 	Amendments to Note Agreements
	 	 	63	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VIII.	 	 	 	 
	 

	 	EVENTS OF DEFAULT AND REMEDIES	 	 	 	 
	 
	 	 	 	 	 	 
	8.01

	 	Events of Default
	 	 	63	 
	8.02

	 	Remedies Upon Event of Default
	 	 	65	 
	8.03

	 	Application of Funds
	 	 	65	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE IX.	 	 	 	 
	 

	 	ADMINISTRATIVE AGENT	 	 	 	 
	 
	 	 	 	 	 	 
	9.01

	 	Appointment and Authority
	 	 	66	 
	9.02

	 	Rights as a Lender
	 	 	67	 
	9.03

	 	Exculpatory Provisions
	 	 	67	 
	9.04

	 	Reliance by Administrative Agent
	 	 	68	 
	9.05

	 	Delegation of Duties
	 	 	68	 
	9.06

	 	Resignation of Administrative Agent
	 	 	68	 
	9.07

	 	Non-Reliance on Administrative Agent and Other Lenders
	 	 	69	 
	9.08

	 	No Other Duties, Etc
	 	 	70	 
	9.09

	 	Administrative Agent May File Proofs of Claim
	 	 	70	 
	9.10

	 	Guaranty Matters
	 	 	70	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE X.	 	 	 	 
	 

	 	MISCELLANEOUS 	 	 	 	 
	 
	 	 	 	 	 	 
	10.01

	 	Amendments, Etc
	 	 	71	 
	10.02

	 	Notices; Effectiveness; Electronic Communication
	 	 	72	 
	10.03

	 	No Waiver; Cumulative Remedies
	 	 	74	 
	10.04

	 	Expenses; Indemnity; Damage Waiver
	 	 	74	 
	10.05

	 	Payments Set Aside
	 	 	76	 
	10.06

	 	Successors and Assigns
	 	 	76	 
	10.07

	 	Treatment of Certain Information; Confidentiality
	 	 	80	 
	10.08

	 	Right of Setoff
	 	 	81	 
	10.09

	 	Interest Rate Limitation
	 	 	81	 
	10.10

	 	Counterparts; Integration; Effectiveness
	 	 	81	 
	10.11

	 	Survival of Representations and Warranties
	 	 	82	 






iii









 






	 	 	 	 	 	 	 
	Section	 	Page
	 
	10.12

	 	Severability
	 	 	82	 
	10.13

	 	Replacement of Lenders
	 	 	82	 
	10.14

	 	Governing Law; Jurisdiction; Etc
	 	 	83	 
	10.15

	 	Waiver of Jury Trial
	 	 	84	 
	10.16

	 	No Advisory or Fiduciary Responsibility
	 	 	84	 
	10.17

	 	USA PATRIOT Act Notice
	 	 	85	 
	 
	SIGNATURES	 	 	S-l	 






iv









 






SCHEDULES




	 	 	 
	2.01

	 	Commitments and Applicable Percentages
	4.01

	 	Existing Credit Facilities
	5.13

	 	Subsidiaries; Other Equity Investments
	7.01

	 	Existing Liens
	10.02

	 	Administrative Agent’s Office; Certain Addresses for Notices
	10.06

	 	Processing and Recordation Fees






EXHIBITS




	 	 	 
	 

	 	Form of
	 
	 	 
	A

	 	Revolving Loan Notice
	B

	 	Swing Line Loan Notice
	C

	 	Note
	D

	 	Compliance Certificate
	E

	 	Assignment and Assumption
	F

	 	Guaranty
	G

	 	Opinion Matters







v











 





CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of April 25, 2006, among
PIEDMONT NATURAL GAS COMPANY, INC., a North Carolina corporation (the “Borrower”), each
lender from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.



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



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



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




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



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



     “Aggregate Commitments” means the Commitments of all the Lenders, which, as of the
Closing Date, are $350,000,000.



     “Agreement” means this Credit Agreement.



     “Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time. If the commitment of each Lender to make Loans and the obligation of the
L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or
if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be
determined based on the Applicable Percentage of such Lender most recently in effect, giving
effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in



1









 




the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.




     “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Debt Rating as set forth below:



	 	 	 	 	 	 	 	 	 	 
	Applicable Rate
	 	 	 	 	 	 	 	 	 	Applicable Rate for
	 	 	 	 	 	 	 	 	 	Eurodollar Rate Loans,
	Pricing	 	 	Debt Ratings	 	 	Applicable Rate for	 	 	LIBOR Floating Rate
	Level	 	 	S&P/Moody’s	 	 	Commitment Fee	 	 	Loans and Letters of Credit
	1
	 	 	3AA-/Aa3	 	 	0.045%	 	 	0.150%
	2
	 	 	A+/A1	 	 	0.050%	 	 	0.200%
	3
	 	 	A/A2	 	 	0.060%	 	 	0.250%
	4
	 	 	A-/A3	 	 	0.075%	 	 	0.300%
	5
	 	 	£BBB+/Baal	 	 	0.100%	 	 	0.350%







     “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 (a) if the
respective Debt Ratings issued by the foregoing rating agencies differ by one level, then
the Pricing Level for 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);
(b) if there is a split in Debt Ratings of more than one level, then the Pricing Level that
is one level lower than the Pricing Level of the higher Debt Rating shall apply; (c) if the
Borrower has only one Debt Rating, the Pricing Level of such Debt Rating shall apply; and
(d) if the Borrower does not have any Debt Rating, Pricing Level 5 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)(vii). 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.




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



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



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



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



2









 





     “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 of
any Person, 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 consolidated balance sheet of the Borrower
and its Subsidiaries for the fiscal year ended October 31, 2005, and the related consolidated
statements of income from operations, shareholders’ equity and cash flows of the Borrower and its
Subsidiaries for such fiscal year, including the notes thereto.



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



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



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



     “Base Rate Loan” means a Revolving Loan that bears interest based on the Base Rate.



     “BBA LIBOR” means the British Bankers Association LIBOR Rate.



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



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



     “Borrowing” means a Revolving Borrowing or a Swing Line Borrowing, as the context may
require.



     “Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the state where the
Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan,
means any such day on which dealings in Dollar deposits are conducted by and between barks in the
London interbank eurodollar market.



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




3











 





     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.




     “Change of Control” means an event or series of events by which:




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person 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 whether such right is exercisable immediately or
only after the passage of time (such right, an “option right”)), directly or indirectly, of
35% or more of the equity securities of the Borrower entitled to vote for members of the
board of directors or equivalent governing body of the Borrower on a fully-diluted basis
(and taking into account all such securities that such person or group has the right to
acquire pursuant to any option right); or




     (b) during any period of 24 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Borrower cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first
day of such period, (ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent governing body
was approved by individuals referred to in clauses (i) and (ii) above constituting at the
time of such election or nomination at least a majority of that board or equivalent
governing body (excluding, in the case of both clause (ii) and clause (iii), any individual
whose initial nomination for, or assumption of office as, a member of that board or
equivalent governing body occurs as a result of an actual or threatened solicitation of
proxies or consents for the election or removal of one or more directors by any person or
group other than a solicitation for the election of one or more directors by or on behalf
of the board of directors).



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



     “Code” means the Internal Revenue Code of 1986.



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



4









 




applicable, as such amount may be adjusted from time to time in accordance with this
Agreement.




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



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



     “Consolidated Total Assets” means, as of any date of determination, for the Borrower and its
Subsidiaries on a consolidated basis, the total assets of the Borrower and its Subsidiaries as set
forth or reflected on the most recent consolidated balance sheet of the Borrower and its
Subsidiaries, prepared 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.



     “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.



     “COSO” means the Committee of Sponsoring Organizations of the Treadway Commission.



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



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



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the



5









 




United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.




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



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



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



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



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



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



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



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



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




6












 




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




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



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



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under common
control with the Borrower within the meaning of Section 414(b) or (c) of the 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 Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer
Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.



     “Eurodollar Base Rate” has the meaning specified in the definition of Eurodollar Rate.



     “Eurodollar Rate” means for any Interest Period with respect to a Eurodollar Rate Loan, a rate
per annum determined by the Administrative Agent pursuant to the following formula:



	 	 	 	 	 	 	 	 	 
	 

	 	Eurodollar Rate
	 	=
	 	Eurodollar Base Rate
	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	1.00 — Eurodollar Reserve Percentage	 	 







     Where,




     ”Eurodollar Base Rate” means, for such Interest Period, the rate per annum equal to
the BBA LIBOR, as published by Reuters (or other commercially available source



7









 







providing quotations of BBA LIBOR as designated by the Administrative Agent from time
to time) at approximately 11:00 am., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period. If such rate is not
available at such time for any reason, then the “Eurodollar Base Rate” for such Interest
Period shall be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurodollar Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period would be
offered by Bank of America’s London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period.



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



     “Eurodollar Reserve Percentage” means, for any day, the reserve percentage (expressed as a
decimal, carried out to five decimal places) in effect on such day, whether or not applicable to
any Lender, under regulations issued from time to time by the FRB for determining the maximum
reserve requirement (including any emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The
Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage. The LIBOR Daily Floating Rate
for each outstanding LIBOR Floating Rate Loan shall be adjusted automatically as of the effective
date of any change in the Eurodollar Reserve Percentage.



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



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



8









 





     “Existing Letters of Credit” means collectively, (i) that certain letter of credit no. S040646
issued by Wachovia Bank, National Association on behalf of the Borrower, in the original stated
amount of $20,000 in favor of The Travelers Indemnity Company and (ii) that certain letter of
credit No. LC968-041959 issued by Wachovia Bank, National Association on behalf of the Borrower, in
the original stated amount of $1,165,000 in favor of The American Home Assurance Co.



     “Existing Maturity Date” shall have the meaning ascribed thereto in Section 2.14(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 of New York
on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative Agent.



     “Fee Letter” means the letter agreement, dated March 8, 2006, among the Borrower, the
Administrative Agent and the Arranger.



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



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



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



     “GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be approved by a significant segment of
the accounting profession in the United States, that are applicable to the circumstances as of the
date of determination, consistently applied.



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




9











 





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



     “Guarantors” means, collectively, each Subsidiary of the Borrower that is a Regulated
Entity.



     “Guaranty” means that certain Guaranty Agreement executed by a Guarantor in favor of
the Administrative Agent and the Lenders, substantially in the form of Exhibit F, as
supplemented from time to time by execution and delivery of Guaranty Joinder Agreements pursuant to
Section 6.12 or otherwise.



     “Guaranty Joinder Agreement” means each Guaranty Joinder Agreement, substantially in
the form thereof attached to the Guaranty, executed and delivered by a Regulated Entity to the
Administrative Agent pursuant to Section 6.12.



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



     “Increase Effective Date” has the meaning ascribed thereto in Section
2.15(d).



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



10









 






     (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), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments;




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




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




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




     (h) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, except to the
extent such Indebtedness is expressly made non-recourse to such Person. The amount of any net
obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. 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 Taxes” means Taxes other than Excluded
Taxes.



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



     “Information” has the meaning
specified in Section 10.07.



     “Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Eurodollar Rate Loan and the Maturity Date;
provided, however, that if any Interest Period for a Eurodollar Rate Loan exceeds
thee months, the respective dates that fall every three months after the beginning of such Interest
Period shall also be Interest Payment Dates; and (b) as to any Revolving Loan that bears interest
at the Base Rate



11









 




or the LIBOR Daily Floating Rate and as to any Swing Line Loan, the first Business Day following
the end of each month and the Maturity Date.




     “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, thee or six months thereafter, as selected by the Borrower in its
Revolving Loan Notice; provided that:




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




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




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



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



     “IRS” means the United States Internal Revenue Service.



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



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



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



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




12












 





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



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



     “L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder, and, with respect to the
Existing Letters of Credit only, Wachovia Bank, National Association.



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



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



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



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



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



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



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



     “Letter of Credit Sublimit” means an amount equal to $5,000,000. The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate Commitments.



     “LIBOR Daily Floating Rate” means a rate per annum determined by the Administrative
Agent pursuant to the following formula:



	 	 	 	 	 	 
	LIBOR Daily Floating Rate
	 	=
	 	LIBOR Daily Floating Base Rate 	 
	 
	 	 	 	1.00 — Eurodollar Reserve Percentage	 






13









 






     Where,




     “LIBOR Daily Floating Base Rate” means, for all LIBOR Floating Rate Loans, on
each day any such Loan is outstanding, the fluctuating rate of interest (rounded upwards,
as necessary, to the nearest 1/100 of 1%) equal to the BBA LIBOR, as published by Reuters
(or other commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London time, on
each day any such Loan is outstanding, for Dollar deposits with a term equivalent to a one
month Interest Period. If such rate is not available at such time for any reason, then the
“LIBOR Daily Floating Base Rate” shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery in same day
funds in the approximate amount of the LIBOR Floating Rate Loan being made, continued or
converted and with a term equivalent to a one-month 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), on each day any such Loan is
outstanding.



     “LIBOR Floating Rate Loan” means a Loan that bears interest at a rate based on the
LIBOR Daily Floating Rate.



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



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



     “Loan Documents” means this Agreement, each Note, each Issuer Document, the Fee
Letter, and the Guaranty.



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



     “Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X
of the FRB.



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



     “Maturity Date” means the later of (a) April 25, 2011 and (b) with respect to each
Lender, if the maturity date with respect to such Lender is extended pursuant to Section
2.14, such extended maturity date as determined pursuant to such Section; provided,
however, that, in



14









 







each case, if such date is not a Business Day, the Maturity Date shall be the next preceding
Business Day.



     “Medium Term Note Indebtedness” means all indebtedness outstanding under the Medium
Term Notes Indenture.



     “Medium Term Notes Indenture” means that certain Indenture dated as of April 1, 1993
between the Borrower and Citibank, N.A., as Trustee.



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



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



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



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any
Loan, Letter of Credit or Related Credit Arrangement, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter
arising and including interest and fees that accrue after the commencement by or against any Loan
Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person
as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims
in such proceeding.



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



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



     “Outstanding Amount” means (i) with respect to Revolving Loans and Swing Line Loans
on any date, the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Revolving Loans and Swing Line Loans, as the case may
be, occurring on such date; and (ii) with respect to any L/C Obligations on any date,




15











 




the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.




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



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “PCAOB” means the Public Company Accounting Oversight Board.



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



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



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



     “Platform” has the meaning specified in Section 6.02.



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



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



     “Regulated Entity” means any direct or indirect, wholly-owned Subsidiary of the
Borrower that is regulated by any state public utility commission.



     “Related Credit Arrangements” means, collectively, Related Swap Contracts and Related
Treasury Management Arrangements.



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



     “Related Swap Contract” means a Swap Contract which is entered into or maintained by
any Loan Party with a Lender or an Affiliate of a Lender.



     “Related Treasury Management Arrangement” means an arrangement for the delivery of
treasury management services to or for the benefit of any Loan Party which is entered into or



16









 




maintained with a Lender or Affiliate of a Lender and which is not prohibited by the express terms
of the Loan Documents.




     “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 Revolving Loans, a Revolving Loan Notice, (b) with respect to an L/C Credit
Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line
Loan Notice.



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.



     “Responsible Officer” means the president, senior vice president, chief financial
officer, treasurer, or vice president-chief risk officer of a Loan Party and, solely for purposes
of notices given pursuant to Article II, any other officer or employee of the applicable
Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent.
Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party.



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



     “Revolving Borrowing” means a borrowing consisting of simultaneous Revolving 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.



     “Revolving Loan” has the meaning specified in Section 2.01.



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



17









 





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



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



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



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



     “Senior Note Agreements” means, collectively, (i) the Note Agreement dated as of July
30, 1991, for the issuance of $35,000,000 9.44% Senior Notes due July 30, 2006, and (ii) the Note
Agreement dated as of September 21, 1992, for the issuance of $35,000,000 8.51% Senior Notes due
September 30, 2017.



     “Senior Note Indebtedness” means all indebtedness outstanding under the Senior Note
Agreements.



     “Shareholders’ Equity” means, as of any date of determination, consolidated
shareholders’ equity of the Borrower and its Subsidiaries as of that date determined in accordance
with GAAP.



     “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.




18












 





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



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



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



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



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



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



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $10,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



     “Synthetic Lease Obligation” means, with respect to any Person, the monetary
obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease,
or (b) an agreement for the use or possession of property creating obligations that do not appear
on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person,
would be characterized as the indebtedness of such Person (without regard to accounting
treatment).



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



     “Threshold Amount” means $35,000,000.



     “Total Capitalization” means, as of any date of determination, the sum of (i)
Shareholders’ Equity on such date plus (ii) Consolidated Funded Indebtedness on such date.



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



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



19









 





     “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.



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



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



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



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



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



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



     1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in



20









 




effect from time to time, applied in a manner consistent with that used in preparing the Audited
Financial Statements (except for changes concurred in by the Borrower’s independent public
accountants or otherwise required by a change in GAAP).




     (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document then such computation shall
be made in accordance with GAAP as so changed unless (i) the Borrower shall have objected to
determining compliance on such basis at or prior to the time of delivery of such financial
statements, or (ii) the Required Lenders shall so object in writing within 30 days after delivery
of such financial statements, in either of which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial statements as to which no
such objection shall have been made.



     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 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).



     1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of
Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at
such time; provided, however, that with respect to any Letter of Credit that, by
its terms or the terms of any Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all such increases,
whether or not such maximum stated amount is in effect at such time.



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




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




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     2.02 Borrowings, Conversions and Continuations of Revolving Loans.



     (a) Each Revolving Borrowing, each conversion of Revolving Loans 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 11:00 a.m. (i) three Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any
conversion of Eurodollar Rate Loans to LIBOR Floating Rate Loans or Base Rate Loans, and (ii) on
the requested date of any Borrowing of LIBOR Floating Rate Loans or Base Rate Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Revolving 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 $1,000,000 or a whole
multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.03(c) and
2.04(c), each Borrowing of or conversion to LIBOR Floating Rate Loans or Base Rate Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each
Revolving Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is
requesting a Revolving Borrowing, a conversion of Revolving Loans from one Type to the other, or a
continuation of Eurodollar Rate Loans, (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
Revolving Loans to be borrowed, converted or continued, (iv) the Type of Revolving Loans to be
borrowed or to which existing Revolving Loans 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
Revolving Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Revolving Loans shall be made as, or converted to,
LIBOR Floating Rate Loans; provided that, if the LIBOR Daily Floating Rate is unavailable,
then the applicable Revolving Loans shall be made as, or converted to, Base Rate Loans. Any such
automatic conversion to LIBOR Floating Rate Loans or, if applicable, 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 Revolving Loan Notice, but fails to specify an Interest Period,
it will be deemed to have requested a LIBOR Floating Rate Loan.



     (b) Following receipt of a Revolving Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage of the applicable Revolving Loans,
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 LIBOR
Floating Rate Loans or, if applicable, Base Rate Loans described in the preceding subsection. In
the case of a Revolving Borrowing, each Lender shall make the amount of its Revolving Loan
available to the Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 1:00 p.m. on the Business Day specified in the applicable Revolving Loan
Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent
shall make all funds so received available to the Borrower 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



22









 




each case in accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Borrower; provided, however, that if, on the date the
Revolving Loan Notice with respect to such Borrowing is given by the Borrower, there are L/C
Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the
payment in full of any such L/C Borrowings, and second, shall be made available to the
Borrower as provided above.




     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, no Loans 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 and
Borrower agrees to pay all amounts due under Section 3.05 in accordance with the terms
thereof due to any such conversion.



     (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. 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. The
Administrative Agent shall notify the Borrower and the Lenders of any change in the LIBOR Daily
Floating Rate on the date such change occurs.



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



     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 Lenders set forth in this Section 2.03, (1)
from time to time on any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit for the account of the
Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the
Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit
issued for the account of the Borrower or any of its Subsidiaries and any drawings
thereunder; provided that after giving effect to any L/C Credit Extension with
respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate
Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding
Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request
by the Borrower for the issuance or amendment of a Letter of Credit shall be



23









 







deemed to be a representation by the Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding sentence. Within the
foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to
obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during
the foregoing period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed. The Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Closing Date shall be
subject to and governed by the terms and conditions hereof.




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




     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:




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




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




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




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




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




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



24









 






     (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not
be permitted at such time to issue such Letter of Credit in its amended form under the
terms hereof.




     (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.




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



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




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




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the



25









 







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




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




     (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the 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.



26









 





     (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 notify the Borrower and the Administrative Agent
thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an “Honor Date”), the Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrower
fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify
each Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed
Amount”), and the amount of such Lender’s Applicable Percentage thereof. In such event, the
Borrower shall be deemed to have requested a Revolving Borrowing of LIBOR Floating 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 LIBOR Floating
Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and
the conditions set forth in Section 4.02 (other than the delivery of a Revolving 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 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 Applicable Percentage of the Unreimbursed Amount not
later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent,
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 LIBOR Floating 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 Revolving
Borrowing of LIBOR Floating Rate Loans because the conditions set forth in Section 4.02
cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from
the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and
shall bear interest at the Default Rate. In such event, each Lender’s payment to the
Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(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 Revolving Loan or L/C Advance pursuant to this Section
2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest
in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account
of the L/C Issuer.



27









 






     (v) Each Lender’s obligation to make Revolving 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 setoff, counterclaim, recoupment, defense or other right which such Lender may have against the
L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided, however, that each Lender’s obligation to make
Revolving Loans pursuant 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 Revolving Loan Notice). No such
making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account of the
L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of
this Section 2.03(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 greater of the Federal Funds Rate and a rate determined by the L/C Issuer in
accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing.
If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid (other
than interest and fees as aforesaid) shall constitute such Lender’s Revolving Loan included in the
relevant Revolving Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case
may be. A certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest
error.



     (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 Applicable
Percentage thereof in the same funds as those received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances
described in Section 10.05 (including pursuant to any settlement entered into by the L/C
Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of
the L/C Issuer its Applicable Percentage thereof on demand of



28









 







the Administrative Agent, plus interest thereon from the date of such demand to the date
such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate
from time to time in effect. The obligations of the Lenders under this clause shall survive
the payment in full of the Obligations and the termination of this Agreement.



     (e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be
absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this

Agreement under all circumstances, including the following:




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




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




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




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




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



     The Borrower shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance with the
Borrower’s instructions or other irregularity, the Borrower will immediately 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



29









 







authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to, and
shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the
L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower
which the Borrower proves were caused by the L/C Issuer’s willful misconduct 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, regardless of any notice or information to the contrary, and the L/C Issuer
shall not be responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective
for any reason.



     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.05 and
8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.03, Section 2.05 and Section 8.02(c),
“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. Cash
Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of
America.



     (h) Applicability of ISP 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 the
Existing Letters of Credit), (i) the rules of the ISP shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,



30









 




as most recently published by the International Chamber of Commerce at the time of issuance shall
apply to each commercial Letter of Credit.




     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate times the
daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall
be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i) due and
payable on the first Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in
arrears. If there is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein while any Event of Default under
Section 8.01(a) exists, all Letter of Credit Fees shall accrue at the Default Rate.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee (i) with respect
to each commercial Letter of Credit, at the rate specified in the Fee Letter, computed on the
amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any
amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit, at a
rate separately agreed between the Borrower and the L/C Issuer, computed on the amount of such
increase, and payable upon the effectiveness of such amendment, and (iii) with respect to each
standby Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the daily
amount available to be drawn under such Letter of Credit and on a quarterly basis in arrears. Such
fronting fee shall be due and payable on the first Business Day after the end of each March, June,
September and December in respect of the most recently-ended quarterly period (or portion thereof,
in the case of the first payment), 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. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount
of such Letter of Credit shall be determined in accordance with Section 1.06. In addition,
the 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 in effect. Such customary fees and
standard costs and charges are due and payable within 10 days of demand and are nonrefundable.



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



     (1) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any
and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance
of



31









 




Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that
the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.




     2.04 Swing Line Loans.



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



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative
Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has
received notice (by telephone or in writing) from the Administrative Agent (including at the
request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations
set forth in the proviso to the first sentence of Section 2.04(a), or (B) that one or more
of the applicable conditions specified in Article IV is not then satisfied, then, subject
to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the
borrowing date specified in such Swing Line Loan Notice, make the



32









 




amount of its Swing Line Loan available to the Borrower at its office by crediting the account of
the Borrower on the books of the Swing Line Lender in immediately available funds.




     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a LIBOR Floating Rate Loan in an amount equal
to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be deemed to be a
Revolving Loan Notice for purposes hereof) and in accordance with the requirements of
Section 2.02, without regard to the minimum and multiples specified therein for the
principal amount of LIBOR Floating Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02. The Swing Line
Lender shall furnish the Borrower with a copy of the applicable Revolving Loan Notice
promptly after delivering such notice to the Administrative Agent. Each Lender shall make
an amount equal to its Applicable Percentage of the amount specified in such Revolving Loan
Notice available to the Administrative Agent in immediately available funds for the account
of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on
the day specified in such Revolving Loan Notice, whereupon, subject to Section
2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a
LIBOR Floating Rate Loan to the Borrower in such amount. The Administrative Agent shall
remit the funds so received to the Swing Line Lender.




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




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



33









 







of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (iii) shall be conclusive absent manifest
error.




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



     (d) Repayment of Participations.




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




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



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



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



     2.05 Prepayments.



     (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Revolving 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
11:00



34









 




a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on
the date of prepayment of LIBOR Floating Rate Loans or Base Rate Loans; (ii) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$1,000,000 in excess thereof; and (iii) any prepayment of LIBOR Floating Rate Loans or Base Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof
or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of Revolving Loans to be
prepaid and, if Eurodollar Rate Loans are to be repaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of
the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by
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 on the amount prepaid, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall be applied
to the Revolving Loans of the Lenders in accordance with their respective Applicable Percentages.




     (b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $100,000 or, if less, the
entire principal amount thereof then outstanding. Each such notice shall specify the date and
amount 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.



     (c) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments
then in effect, the Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided, however, that
the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings
exceed the Aggregate Commitments then in effect.



     2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. 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, (iii) the Borrower shall not terminate or
reduce the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after
giving effect to any reduction of the Aggregate Commitments, the Letter of Credit Sublimit or the
Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be
automatically reduced by the amount of such excess. The Administrative Agent will promptly notify
the Lenders of any such notice of termination or reduction of the Aggregate Commitments. Any
reduction of the Aggregate Commitments shall



35









 





be applied to the Commitment of each Lender according to its Applicable Percentage. All fees
accrued until the effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination.



     2.07 Repayment of Loans.



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



     (b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date ten
Business Days after such Loan is made and (ii) the Maturity 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;
(ii) each LIBOR Floating Rate Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the LIBOR Daily
Floating Rate plus the Applicable Rate; (iii) 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; and (iv) each Swing Line Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum equal to the
LIBOR Daily Floating Rate plus the Applicable Rate.




(b) (i) If any amount of principal of any Loan is not paid when due (after giving
effect to any applicable grace periods), whether at stated maturity, by acceleration or
otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Laws.




     (ii) If any amount (other than principal of any Loan) payable by the Borrower under
any Loan Document is not paid when due (after giving effect to any applicable grace
periods), whether at stated maturity, by acceleration or otherwise, then upon the request
of the Required Lenders, such amount shall thereafter bear interest at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.




     (iii) 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.



36









 





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



     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to
the Applicable Rate times the actual daily amount by which the Aggregate Commitments
exceed
the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of
L/C Obligations. The commitment fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article IV is not
met, and
shall be due and payable quarterly in arrears on the first Business Day after the end of each
March, June, September and December, commencing with the first such date to occur after the
Closing Date, and on the last day of the Availability Period. The commitment fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable Rate during any
quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in effect.




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




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



     2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans when
the Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees
and interest shall be made on the basis of a 360-day year and actual days elapsed (which results
in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day
year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.12(a), bear interest for one day. Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.



     2.11 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 to so 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 Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the



37









 




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 the purchases and sales by such Lender of participations in Letters of Credit and Swing
Line Loans. In the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.



     2.12 Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise
expressly provided herein, all payments by the Borrower hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such payment is
owed,
at the Administrative Agent’s Office in Dollars and in immediately available funds not later
than
2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Applicable Percentage (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender’s Lending Office. All
payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the
next succeeding Business Day and any applicable interest or fee shall continue to accrue. If
any
payment to be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.




(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date
of any Revolving Borrowing of Eurodollar Rate Loans (or, in the case of any Revolving
Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Revolving
Borrowing) that such Lender will not make available to the Administrative Agent such
Lender’s share of such Revolving Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with Section
2.02
(or, in the case of a Revolving Borrowing of Base Rate Loans, that such Lender has made
such share available in accordance with and at the time required by Section 2.02)
and
may, in reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the applicable
Revolving Borrowing available to the Administrative Agent, then the applicable Lender
and the Borrower severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount in immediately available funds with interest thereon,
for each day from and including the date such amount is made available to the Borrower



38









 






to but excluding the date of payment to the Administrative Agent, at (A) in the case of a
payment to be made by such Lender, the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation, plus any administrative processing or similar fees customarily
charged by the Administrative Agent in connection with the foregoing, and (B) in the case
of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans.
If the Borrower and such Lender shall pay such interest to the Administrative Agent for the
same or an overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If such Lender
pays its share of the applicable Revolving Borrowing to the Administrative Agent, then the
amount so paid shall constitute such Lender’s Revolving Loan included in such Revolving
Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower
may have against a Lender that shall have failed to make such payment to the Administrative
Agent.




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



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



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



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




39












 




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 Revolving Loan, to purchase its participation or to make its
payment under Section 10.04(c).




     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



     2.13
Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Revolving Loans made by it, or the participations in L/C Obligations or in Swing Line Loans
held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
such Revolving Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Revolving Loans and subparticipations in L/C Obligations and Swing Line
Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Revolving Loans and
other amounts owing them, provided that:




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




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Revolving Loans or subparticipations in L/C Obligations or Swing
Line Loans to any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).



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



     2.14
Extension of Maturity Date.



     (a) Requests for Extension. The Borrower may, by notice to the Administrative Agent
(who shall promptly notify the Lenders) not more frequently than once in every 12 month period,
but in any event not later than 60 days prior to the Maturity Date then in effect hereunder



40









 




(the “Existing Maturity Date”), request that each Lender extend such Lender’s Maturity
Date for an additional one-year period from the Existing Maturity Date.




     (b) Lender Elections to Extend. Each Lender, acting in its sole and individual
discretion, shall, by notice to the Administrative Agent given not later than 30 days following the
date that notice of the Borrower’s request is given by the Administrative Agent (the “Notice
Date”), advise the Administrative Agent whether or not such Lender agrees to such extension
(and each Lender that determines not to so extend its Maturity Date (a “Non-Extending
Lender”) shall notify the Administrative Agent of such fact promptly after such determination
(but in any event no later than the Notice Date) and any Lender that does not so advise the
Administrative Agent on or before the Notice Date shall be deemed to be a Non-Extending Lender. The
election of any Lender to agree to such extension shall not obligate any other Lender to so agree.



     (c) Notification by Administrative Agent. The Administrative Agent shall notify the
Borrower of each Lender’s determination under this Section no later than the date 30 days prior to
the Existing Maturity Date (or, if such date is not a Business Day, on the next preceding Business
Day). Upon such notification, subject to the provisions of clause (e) below, the Existing Maturity
Date of each Lender that has elected to agree to such extension (an “Extending Lender”)
shall be automatically so extended without further action on the part of the Borrower or the
Existing Lender(s).



     (d) Additional Commitment Lenders. The Borrower shall have the right on or before the
Existing Maturity Date to replace each Non-Extending Lender with, and add as “Lenders” under this
Agreement in place thereof, one or more Eligible Assignees (each, an “Additional Commitment
Lender”) as provided in Section 10.13, each of which Additional Commitment Lenders
shall have entered into an Assignment and Assumption pursuant to which such Additional Commitment
Lender shall, effective as of the Existing Maturity Date, undertake a Commitment (and, if any such
Additional Commitment Lender is already a Lender, its Commitment shall be in addition to such
Lender’s Commitment hereunder on such date).



     (e) Conditions to Effectiveness of Extensions. Notwithstanding the foregoing, the
extension of the Existing Maturity Date pursuant to this Section shall not be effective with
respect to any Lender unless:




     (i) no Default shall have occurred and be continuing on the date of such extension and
after giving effect thereto;




     (ii) the representations and warranties contained in this Agreement are true and
correct on and as of the date of such extension and after giving effect thereto, as though
made on and as of such date (or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific date); and




     (iii) on the Maturity Date of each Non-Extending Lender, the Borrower shall prepay any
Revolving Loans outstanding on such date (and pay any additional amounts required pursuant
to Section 3.05) to the extent necessary to keep outstanding Revolving Loans
ratable with any revised Applicable Percentages of the respective Lenders effective as of
such date.



41









 





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



     2.15
Increase in Commitments.



     (a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrower may from time to
time, request an increase in the Aggregate Commitments by an amount (for all such requests) not
exceeding $250,000,000; provided that any such request for an increase shall be in a
minimum amount of $5,000,000. At the time of sending such notice, the Borrower (in consultation
with the Administrative Agent) shall specify the time period within which each Lender is requested
to respond (which shall in no event be less than ten Business Days from the date of delivery of
such notice to the Lenders).



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



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



     (d) Effective Date and Allocations. If the Aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrower shall determine the
effective date (the “Increase Effective Date”) and the final allocation of such increase.
The Administrative Agent shall promptly notify the Borrower and the Lenders of the final
allocation of such increase and the Increase Effective Date.



     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party
dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by
such Loan Party approving or consenting to such increase, and (ii) in the case of the Borrower,
certifying that, before and after giving effect to such increase, (A) the representations and
warranties contained in Article V and the other Loan Documents are true and correct on and
as of the Increase Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Section 2.15, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer
to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01, and (B) no Default exists. The Borrower shall prepay any Revolving Loans
outstanding on the Increase Effective Date (and



42









 




pay any additional amounts required pursuant to Section 3.05) to the extent necessary to
keep the outstanding Revolving Loans ratable with any revised Applicable Percentages arising from
any nonratable increase in the Commitments under this Section.




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



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



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



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



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



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



43









 





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



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




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




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




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




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



     (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer determines, in its sole discretion, that it has received a refund 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, it shall pay to the Borrower an amount equal
to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by
the Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and without interest (other than any interest paid by



44









 




the relevant Governmental Authority with respect to such refund), provided that the
Borrower, upon the request of the Administrative Agent, such Lender or the L/C Issuer, agrees to
repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to the Administrative Agent, such Lender or the L/C Issuer
in the event the Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be construed to require the
Administrative Agent, any Lender or the L/C Issuer to make available its tax returns (or any other
information relating to its taxes that it deems confidential) to the Borrower or any other Person.




     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 to determine or charge interest rates
based upon the Eurodollar Rate or the LIBOR Daily Floating Rate, as applicable, or any Governmental
Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or
to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue
applicable Eurodollar Rate Loans or LIBOR Floating Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans or LIBOR Floating 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 applicable
Eurodollar Rate Loans or LIBOR Floating Rate Loans of such Lender, as applicable, 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 and LIBOR Floating Rate Loans, to such day, or immediately,
if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and LIBOR Floating
Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on
the amount so prepaid or converted and all amounts due under Section 3.05 in accordance
with the terms thereof due to such prepayment or conversion.



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a Eurodollar Rate Loan or LIBOR Floating Rate Loans or a
conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks in
the London interbank eurodollar market for the applicable amount and, if applicable, Interest
Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurodollar Base Rate with respect to a proposed Eurodollar Rate Loan for any
requested Interest Period or the LIBOR Daily Floating Base Rate with respect to a proposed LIBOR
Floating Rate Loan, or (c) the Eurodollar Base Rate for any requested Interest Period or the LIBOR
Daily Floating Base Rate with respect to a proposed LIBOR Floating Rate Loan does not adequately
and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will
promptly so notify the Borrower and each Lender. Thereafter, the obligation of Lenders to make or
maintain Eurodollar Rate Loans and LIBOR Floating Rate Loans, as applicable, 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 of,
conversion to or continuation of Eurodollar Rate Loans and LIBOR Floating Rate Loans or, failing
that, will be deemed to have converted such




45









 







request into a request for a Revolving Borrowing of Base Rate Loans in the amount specified
therein.




     3.04 Increased Costs.



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




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Eurodollar Rate or the LIBOR Daily Floating Rate) or the L/C Issuer;




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




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


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




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




46









 







holding company with respect to capital adequacy), then from time to time the Borrower will pay to
such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for
any such reduction suffered.




     (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such
Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.



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



     Any Lender requesting compensation under Sections 3.01, 3.04 and 3.05
hereof shall do so within 90 days of the event giving rise to such request or otherwise lose the
right to request such compensation.



     3.05 Compensation for 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 Loan other than a Base Rate
Loan or LIBOR Floating Rate Loan on a day other than the last day of the Interest Period for such
Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);



     (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 Loan other than a Base Rate Loan or LIBOR
Floating 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 10.13;


including 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 (but specifically excluding any lost profits). The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.




47









 





     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 Base Rate used in determining the Eurodollar Rate for such Loan by a matching
deposit or other borrowing in the London interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.



     3.06 Mitigation Obligations; Replacement of Lenders.



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



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the
Borrower may replace such Lender in accordance with Section 10.13.



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



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




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



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




     (i) executed counterparts of this Agreement and the Guaranty, sufficient in
number for distribution to the Administrative Agent, each Lender and the Borrower;




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



48









 






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




     (iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and that each of the
Borrower and each Guarantor is validly existing, in good standing and qualified to engage
in business in each jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualification, except to the extent that failure
to do so could not reasonably be expected to have a Material Adverse Effect;




     (v) a favorable opinion of in-house counsel to the Borrower and Moore & Van Allen,
PLLC, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender,
as to the matters set forth in Exhibit G and such other matters concerning the Loan
Parties and the Loan Documents as the Required Lenders may reasonably request;




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




     (vii) a certificate signed by a Responsible Officer of the Borrower certifying (A)
that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B)
that there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;




     (viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter
of the Borrower ended on January 31, 2006, signed by a Responsible Officer of the Borrower;




     (ix) all existing credit facilities as set forth on Schedule 4.01 (other than
the Senior Note Agreements, the Medium Term Notes Indenture and the Existing Letters of
Credit) have been terminated; and




     (x) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders
reasonably may require.



     (b) Any fees required to be paid by the Borrower pursuant to the Loan Documents on or
before the Closing Date shall have been paid.



49









 





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



     Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender
that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.



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



     (a) The representations and warranties of the Borrower and each other Loan Party contained in
Article V (except for Section 5.05(c)) or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith or therewith,
shall be true and correct on and as of the date of such 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, and except that for purposes of this
Section 4.02, the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01.



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



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



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




50









 








ARTICLE V.

REPRESENTATIONS AND WARRANTIES




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



     5.01 Existence, Qualification and Power. Each Loan Party (a) is (i) duly organized or formed,
validly existing and (ii), as applicable, in good standing under the Laws of the jurisdiction of
its incorporation or organization, (b) has all requisite corporate power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its
assets and carry on its business and (ii) execute, deliver and perform its obligations under the
Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as
applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such qualification or license;
except in each case referred to in clauses (a)(ii), (b)(i) or (c), to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect.



     5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to be made under (i)
any Contractual Obligation to which such Person is a party or affecting such Person or the
properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree
of any Governmental Authority or any arbitral award to which such Person or its property is
subject; or (c) violate any Law, except in each case referred to in clauses (b) or (c) to the
extent that such conflict, breach or violation could not reasonably be expected to have a Material
Adverse Effect.



     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party 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 each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms.



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



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present in all material respects the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the period covered thereby




51









 







in accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Indebtedness.




     (b) The unaudited consolidated balance sheets of the Borrower and its Subsidiaries dated
January 31, 2006, and the related consolidated statements of income from operations, and cash flows
for the portion of the Borrower’s fiscal year then ended on that date (i) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, and (ii) fairly present 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, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments.



     (c) 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 could reasonably be
expected to have a Material Adverse Effect.



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



     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Borrower after due and diligent investigation, 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 that (a) purport to affect
or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) except as specifically disclosed in the Audited Financial Statements, either
individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.



     5.07 No Default. No Default has occurred and is continuing or would result from the
consummation of the transactions contemplated by this Agreement or any other Loan Document.



     5.08 Ownership of Property; Liens. Each of the Borrower and each Subsidiary has good record
and marketable title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business, except for such defects in title as
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. The property of the Borrower and its Subsidiaries is subject to no Liens, other than 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




52









 







respective businesses, operations and properties, and as a result thereof the Borrower has
reasonably concluded that except as specifically disclosed in the Audited Financial Statements,
such Environmental Laws and claims could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.




     5.10 Insurance. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Borrower, in such
amounts (after giving effect to any self-insurance), with such deductibles and covering such
assets and risks of the Borrower and its Subsidiaries in accordance with customary business
practices in the industry of the Borrower, as necessary and appropriate in the good faith business
judgment of the Borrower.



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



     5.12 ERISA Compliance.



     (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 that could
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.



     (c) (i) No ERISA Event has occurred 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); (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 Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.



53









 





     5.13 Subsidiaries; Equity Interests. As of the Closing Date, the Borrower has no Subsidiaries
other than those specifically disclosed in Part (a) of Schedule 5.13, and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Borrower or a Subsidiary in the amounts specified on Part (a)
of Schedule 5.13. The Borrower has no equity investments in any other corporation or
entity other than those specifically disclosed in Part(b) of Schedule 5.13. All of the
outstanding Equity Interests in the Borrower have been validly issued and are fully paid and
nonassessable.



     5.14 Margin Regulations; Investment Company Act.



     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing or drawing under each
Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of
the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section
7.01 or Section 7.03 or subject to any restriction contained in any agreement or
instrument between the Borrower and any Lender or any Affiliate of any Lender relating to
Indebtedness and within the scope of Section 8.01(e) will be Margin Stock.



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



     5.15 Disclosure. The Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries
is subject, and all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No report, financial statement,
certificate or other information furnished (whether in writing or orally) by or on behalf of any
Loan Party to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any
other Loan Document (in each case, as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon assumptions believed
by the Borrower to be reasonable at the time.



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



54









 





     5.17 Taxpayer Identification Number. The Borrower’s true and correct U.S. taxpayer
identification number is set forth on Schedule 10.02.



ARTICLE VI.

AFFIRMATIVE COVENANTS




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



     6.01 Financial Statements. Deliver to the Administrative Agent with sufficient copies for
distribution to each Lender, and the Administrative Agent shall deliver such copies promptly to
each Lender after the Administrative Agent’s receipt:



     (a) as soon as available, but in any event by the date on which consolidated financial
statements for such period are required to be delivered to the SEC under the Securities Laws
(without regard to any extensions of such date permitted by the Securities Laws for which any
special application is required) (and if the Borrower does not have have to deliver such
consolidated financial statements to the SEC under the Securities Laws, then as soon as available,
but in any event within 90 days after the end of the fiscal year of the Borrower), a consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of each fiscal year, and the
related consolidated statements of income from operations, shareholders’ equity and cash flows for
such fiscal year, setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP, such consolidated
statements to be audited and accompanied by (i) a report and opinion of a Registered Public
Accounting Firm of nationally recognized standing reasonably acceptable to the Required Lenders
(which shall include but not be limited to Deloitte & Touche, LLP), which report and opinion shall
be prepared in accordance with generally accepted auditing standards and applicable Securities
Laws and shall not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit or with respect to the absence of any
material misstatement and (ii) an attestation report of such Registered Public Accounting Firm as
to the Borrower’s internal controls over financial reporting pursuant to Section 404 of
Sarbanes-Oxley expressing a conclusion that the Borrower has maintained effective internal
controls over financial reporting based on the COSO criteria; and



     (b) as soon as available, but in any event by the date on which consolidated financial
statements for such period are required to be delivered to the SEC under the Securities Laws
(without regard to any extensions of such date permitted by the Securities Laws for which any
special application is required) (and if the Borrower does not have have to deliver such
consolidated financial statements to the SEC under the Securities Laws, then as soon as available,
but in any event within 45 days after the end of the first three fiscal quarters of each fiscal
year of the Borrower), a consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of each fiscal quarter, and the related consolidated statements of income from operations, and
cash flows for such portion of the Borrower’s fiscal year then ended and for the portion of the
Borrower’s fiscal year then ended, setting forth in each case in comparative form




55









 







the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail, such consolidated statements to be
certified by the chief executive officer, chief financial officer, treasurer or controller of the
Borrower as fairly presenting the financial condition, results of operations, shareholders’ equity
and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes.




     As to any information contained in materials furnished pursuant to Section 6.02(c),
the Borrower shall not be separately required to furnish such information under clause (a) or (b)
above, and to the extent that the Borrower has filed a Form 10K or Form 10Q for the respective
financial period with the SEC, it shall be deemed to have satisfied clauses (a) and (b) above.



     6.02 Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in
form and detail satisfactory to the Administrative Agent and the Required Lenders:



     (a) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal
quarter ended April 30, 2006), a duly completed Compliance Certificate signed by the chief
executive officer, chief financial officer, treasurer or controller of the Borrower;



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



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



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



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



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



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     Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section
6.02(c) or (d) (to the extent any such documents are included in materials otherwise filed with
the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: upon the request of the Administrative Agent, (i) the Borrower shall deliver paper copies of
such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and
each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to
the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Except for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents referred to above, and in
any event shall have no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of
the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrower or its securities) (each, a “Public Lender”).
The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower
Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the
Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any
material non-public information with respect to the Borrower or its securities for purposes of
United States Federal and state securities laws (provided, however, that to the
extent such Borrower Materials constitute Information, they shall be treated as set forth in
Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Investor”; and (z) the
Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated
“Public Investor”. Notwithstanding the foregoing, the Borrower shall be under no obligation to
mark any Borrower Materials “PUBLIC”.



     6.03 Notices. Promptly, but in any event, within five (5) days of the Borrower becoming aware
thereof, notify the Administrative Agent and each Lender:



     (a) of the occurrence of any Default;



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     (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) any dispute, litigation, investigation, proceeding or suspension
between the Borrower or any Subsidiary and any Governmental Authority; or (ii) the commencement of,
or any material development in, any litigation or proceeding affecting the Borrower or any
Subsidiary, including pursuant to any applicable Environmental Laws;



     (c) of the occurrence of any ERISA Event;



     (d) of any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary;



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



     (f) of any announcement by Moody’s or S&P of any change or possible change in a Debt Rating.



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



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



     6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 7.02 or 7.03; (b) preserve, renew and maintain in
full force and effect its good standing under the Laws of the jurisdiction of its origination,
except where the failure to do so could not reasonably be expected to result in a Material Adverse
Effect; (c) take all reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse Effect; and (d)
preserve or renew all of its registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material Adverse Effect.



     6.06 Maintenance of Properties. 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




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renewals and replacements thereof, except in the case of both (a) and (b) above, where the failure
to do so could not reasonably be expected to have a Material Adverse Effect.




     6.07 Maintenance of Insurance. Maintain insurance (including self-insurance) with respect to its
properties and business as necessary and appropriate in the customary business practice in the
industry of the Borrower.



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



     6.09 Books and Records. Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the 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 Administrative Agent or such Lender, as applicable, and at
such reasonable times during normal business hours and upon reasonable advance notice to the
Borrower, but not more frequently than once per every twelve (12) month period; provided,
however, that when an Event of Default exists the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any of the foregoing at
the expense of the Borrower at any time during normal business hours and without advance notice as
often as may be reasonably requested.



     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for (a) general working
capital needs, capital expenditures and permitted acquisitions, (b) subject to the proviso below,
the purchase or other acquisition by the Borrower of shares of its capital stock and related
preferred stock purchase rights, and (c) other lawful corporate purposes, other than, directly or
indirectly, (i) for a purpose in contravention of any Law or of any Loan Document, (ii) to
purchase or carry Margin Stock, (iii) to repay or otherwise refinance indebtedness of the Borrower
or others incurred to purchase or carry Margin Stock, (iv) to extend credit for the purpose of
purchasing or carrying any Margin Stock, or (v) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act; provided, however, that notwithstanding
clauses (ii) through (v) above, the Borrower may use proceeds of Loans as described in clause (b)
above so long as either (x) the Margin Stock so acquired is promptly retired following the
purchase or other acquisition thereof or (y) at all times and after giving effect to each such
purchase or acquisition, not more than twenty-five percent (25%) of the total assets of the
Borrower and its Subsidiaries on a consolidated basis are represented by Margin Stock owned by the
Borrower and its Subsidiaries on a consolidated basis.



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     6.12 Guarantors. Notify the Administrative Agent at the time that any Person becomes a
Regulated Entity, and promptly thereafter (and in any event within 30 days), cause such Person to



     (a) in the case of the first Regulated Entity becoming a Guarantor, a Guaranty and thereafter
for each additional Regulated Entity, a Guaranty Joinder Agreement duly executed by such Regulated
Entity;



     (b) an opinion of counsel to each Person executing the Guaranty or Guaranty Joinder Agreement
pursuant to this Section 6.12 dated as of the date of delivery of such applicable
agreements and other Loan Documents provided for in this Section 6.12 and addressed to the
Administrative Agent and the Lenders, in form and substance reasonably acceptable to the
Administrative Agent, each of which opinions may be in form and substance, including assumptions
and qualifications contained therein, substantially similar to those opinions of counsel delivered
pursuant to Section 4.01(a); and



     (c) with respect to each Person executing any Guaranty or Guaranty Joinder Agreement pursuant
to this Section 6.12, current copies of the Organization Documents of each such Person,
minutes of duly called and conducted meetings (or duly effected consent actions) of the board of
directors, partners, or appropriate committees thereof (and, if required by such Organization
Documents or applicable law, of the shareholders, members or partners) of such Person authorizing
the actions and the execution and delivery of documents described in this Section 6.12,
all certified by the applicable Governmental Authority or appropriate officer as the
Administrative Agent may elect.



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
the Borrower shall not, nor shall it permit any Guarantor to, directly or indirectly:



     7.01 Liens. 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 and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby is not changed (except
for proceeds of such property), and (ii) the direct or any contingent obligor with respect thereto
is not changed;



     (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;



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



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



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



     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not 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 not constituting an Event of Default
under Section 8.0l(h);



     (i) leases or subleases granted to others in the ordinary course of business not interfering
in any material respect with the business of the applicable Person;



     (j) any interest of title of a lessor under, and Liens arising from UCC financing statements
(or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases
permitted by this Agreement;



     (k) Liens deemed to exist in connection with repurchase agreements;



     (1) normal and customary rights of setoff upon deposits of cash in favor of banks or other
depository institutions;



     (m) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial Code on
items in the course of collection;



     (n) Liens existing on any asset or property prior to the acquisition thereof by any Loan
Party or existing on any asset or property of any Person that becomes a Guarantor prior to the
time such Person becomes a Guarantor;



     (o) Liens on property securing purchase money indebtedness (including capital lease
obligations, provided that (i) such Liens attach to such property within 90 days after the
acquisition of such property, (ii) such Liens secure only the payment of the purchase money
Indebtedness (and refinancings, renewals or extensions thereof) and (iii) such Liens attach only
to the property subject to the purchase money Indebtedness and do not encumber any other property
of any Loan Party; and



     (p) Liens not permitted by clauses (a) through (o) above if at the time of, and after giving
effect to, the creation or assumption of any such Lien, the aggregate amount of all




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Indebtedness of the Loan Parties secured by all such Liens not so permitted by clauses (a) through
(o) above does not exceed 10% of Consolidated Total Assets.




     7.02 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person,
or Dispose of (whether in one transaction or in a series of transactions) all or substantially all
of its assets (whether now owned or hereafter acquired) to or in favor of any Person, or
discontinue or eliminate, a line of business; provided, that the foregoing limitation on
the sale, lease or other transfer of assets and on the discontinuance or elimination of a line of
business shall not prohibit, at any time, a transfer of assets or the discontinuance or elimination
of a line of business (in a single transaction or a series of related transactions) to the extent
that any such Disposition would not cause the aggregate value of all assets Disposed of (excluding
the sale, lease or other transfer of assets permitted under clause (c) of this Section), after the
Closing Date to exceed $50,000,000, and provided, further, that so long as no
Default exists or would result therefrom:



     (a) the Borrower may merge with another Person if (i) such Person is organized under the laws
of the United States of America or one of its states, and (ii) the Borrower is the surviving
corporation;



     (b) any Guarantor may merge with (i) the Borrower, provided that the Borrower shall
be the continuing or surviving Person, or (ii) any one or more other Guarantors; and



     (c) any Guarantor may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or to another Guarantor.



     7.03 Change in Nature of Business. Engage in any material line of business substantially different
from those lines of business conducted by the Borrower and its Subsidiaries on the date hereof or
any business substantially related or incidental thereto.



     7.04 Transactions with Affiliates. Enter into any transaction of any kind (other than this
Agreement and any other Loan Document) with any Affiliate of the Borrower, whether or not in the
ordinary course of business, other than on fair and reasonable terms substantially as favorable to
the Borrower or such Guarantor as would be obtainable by the Borrower or such Guarantor at the
time in a comparable arm’s length transaction with a Person other than an Affiliate, provided that
the foregoing restriction shall not apply to transactions between or among the Borrower and any
Guarantor or between and among any Guarantors.



     7.05 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to the Borrower or any Guarantor or to otherwise transfer property to the Borrower or any
Guarantor, (ii) of any Regulated Entity to Guarantee the Indebtedness of the Borrower or (iii) of
the Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on property of
such Person except, with respect to clause (iii) above, for (1) any document or instalment
governing purchase money Indebtedness, provided that any such restriction contained therein
relates only to the asset or assets constructed or acquired in connection therewith, (2) Medium
Term Notes Indenture and the Senior Note Agreements, (3) any Lien permitted by Section
7.01 or any document or instrument governing any such Lien, provided that any such restriction
contained therein relates only to the asset or assets subject to such Lien, and




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(4) customary restrictions and conditions contained in any agreement relating to the sale of any
property permitted under Section 7.03 pending the consummation of such sale; or (b) (except
for the Medium Term Notes Indenture, the Senior Note Agreements and any other agreement or
indenture providing for the issuance of senior indebtedness on parity with the Obligations)
requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure
another obligation of such Person.




     7.06 Ratio of Consolidated Funded Indebtedness to Total Capitalization. Permit the ratio of
Consolidated Funded Indebtedness to Total Capitalization to exceed 0.70 to 1.00 at any time.



     7.07 Amendments to Note Agreements. Enter into or suffer to exist any amendment or
modification (a) to the amortization schedule or prepayment provisions (excluding the waiver of
any prepayment premium or penalty) of the Indebtedness created under the Medium Term Notes
Indenture and the Senior Note Agreements or (b) to any other terms or conditions contained in the
Medium Term Notes Indenture and the Senior Note Agreements if such modification (i) would conflict
with or be more restrictive than the terms or provisions of this Agreement, (ii) would provide for
collateral security for such Indebtedness in excess of that provided under such agreements as of
the Closing Date, (iii) would expand any negative pledge provision provided for therein, or (iv)
would alter any provision of the events of default under those agreements.



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



     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.01, 6.02 (within five days of the date when
due, in the case of Section 6.02(a)), 6.03, 6.05(a), 6.10,
6.11 or 6.12 or Article VII or any Guarantor fails to perform or observe
any term, covenant or agreement contained in the Guaranty; or



     (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its
part to be performed or observed and such failure continues for 30 days after the Borrower
becoming aware thereof or having received notice thereof; or



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



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



     (f) Insolvency Proceedings, Etc. Any Loan Party institutes or consents to the
institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit
of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or any material part
of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for 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) Any Loan Party becomes unable or admits
in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ
or warrant of attachment or execution or similar process is issued or levied against all or any
material part of the property of any such Person and is not released, vacated or fully bonded
within 30 days after its issue or levy; or



     (h) Judgments. There is entered against any Loan Party (i) one or more final
judgments or orders for the payment of money in an aggregate amount (as to all such judgments or
orders) exceeding the Threshold Amount (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary
final judgments that have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are




64









 







commenced by any creditor upon such judgment or order, or (B) there is a period of 10 consecutive
days during which a stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or




     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when
due, after the expiration of any applicable grace period, any installment payment with respect to
its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or



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



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



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



     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C 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 the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and



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


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any 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.




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



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the
Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective
Lenders and the L/C Issuer (including fees and time charges for attorneys who may be employees of
any Lender or the L/C Issuer) and amounts payable under Article III), ratably among them
in proportion to the respective amounts described in this clause Second payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer 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 and the L/C Issuer 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, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit;



     Sixth, to payment of Obligations consisting of liabilities under any Related Credit
Arrangement with any Lender or any Affiliate of a Lender party to a Related Credit Arrangement and
as to which the Agent has received notice of the amounts owed thereunder from the applicable
Lender or any Affiliate of a Lender party to a Related Credit Arrangement, such payments under
this clause Sixth to be allocated on a pro rata basis according to such amounts owed as to
which the Agent has received such notice; 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.





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ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. Each of the Lenders and the L/C Issuer hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The provisions
of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C
Issuer, and the Borrower shall not have rights as a third party beneficiary of any of such
provisions; provided, the foregoing provisions are not intended to limit the rights granted
to the Borrower under this Article as a primary party of interest.



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



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



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



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



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



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith



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shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02)
or (ii) in the absence of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.



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



     9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C
Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts.



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



     9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon
receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor, which shall be a bank with an office in the United
States, or an Affiliate of any such bank with an office in the United States. If no such successor
shall



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have been so appointed by the Required Lenders and shall have accepted such appointment within 30
days after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 10.04 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.



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



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




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based upon this Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.




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



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on 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, L/C Obligations and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in order to have the
claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and
the Administrative Agent and their respective agents and counsel and all other amounts due the
Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(i) and (j),
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 and the L/C Issuer to make
such payments to the Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under 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 or the L/C Issuer any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of
any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim
of any Lender or the L/C Issuer in any such proceeding.



     9.10 Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any Guarantor from its
obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.



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     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release any Guarantor from its obligations under
the Guaranty pursuant to this Section 9.10.



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 or any other Loan Party therefrom,
shall be effective unless in writing signed by the Required Lenders and the Borrower or the
applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:



     (a) waive any condition set forth in Section 4.01(a) without the written consent of
each Lender;



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



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



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01) any
fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate”
or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default
Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if
the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing
or to reduce any fee payable hereunder;



     (e) change Section 2.13 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;



     (f) change any provision of this Section 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 determination or grant any consent hereunder,
without the written consent of each Lender; or



     (g) release all or substantially all of the value of the Guaranty without the written consent
of each Lender;



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




     10.02 Notices; Effectiveness; Electronic Communication.



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




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




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



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



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




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



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



     (d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices and other communications
hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line
Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to
ensure that the Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.



     (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Revolving Loan Notices and Swing Line Loan Notices) purportedly given by or
on behalf of the Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice specified



73









 




herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the
Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the patties hereto hereby consents to such
recording.




     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 provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.



     10.04 Expenses; Indemnity; Damage Waiver.



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



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any
of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and
shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements
for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out
of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations hereunder or thereunder, the consummation of
the transactions contemplated hereby or thereby or, in the



74









 







case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or
the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor
a demand for payment under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party against an
Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other
Loan Document, if the Borrower or such Loan Party has obtained a final and nonappealable judgment
in its favor on such claim as determined by a court of competent jurisdiction.



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



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or as a result of,
this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the gross negligence of willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.




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



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



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the
L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Administrative
Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a)
to the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to
the Administrative Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from
time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the termination of
this Agreement.



     10.06 Successors and Assigns.



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



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this subsection (b),



76









 







participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided
that any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, an affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000 unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single assignee (or
to an assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been met.




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in respect of
Swing Line Loans.




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




     (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed, it being deemed reasonable on the part of the Borrower to withhold
consent to any assignment that would cause the Borrower to incur additional costs
under Section 3.01(a)) shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such assignment or (2) such assignment is
to a Lender, an Affiliate of a Lender or an Approved Fund;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to be a
Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with
respect to such Lender;



77









 






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




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




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount, if any, required as set forth in Schedule
10.06; provided, however, that the Administrative Agent may, in its
sole discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.




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




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



     Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights
and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and
10.04 with respect to facts and circumstances occurring prior to the effective date of
such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to
the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section.



     (c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C
Obligations owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, and the 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




78












 




contrary. The Register shall be available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.




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



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso
to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.13 as
though it were a Lender.



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



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



     (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any



79









 




applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.




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



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



80









 




Section or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a source other than the Borrower.




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



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



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



     10.09 Interest
Rate Limitation. Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the
Maximum Rate, the excess interest shall be applied to the principal of the 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



81









 




voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.




     10.10 Counterparts; Integration; Effectiveness. This Agreement and the other Loan Documents
may be executed in counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement and the other Loan Documents constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement and the other Loan Documents shall become effective when they
shall have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of this Agreement and any
other Loan Document by telecopy shall be effective as delivery of a manually executed counterpart
of this Agreement and the other Loan Documents.



     10.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or
unsatisfied or any Letter of Credit shall remain outstanding.



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



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, if any Lender is a
Defaulting Lender, or if any Lender is a Restricted Lender (as defined below) then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with and subject to
the restrictions contained in, and consents required by, Section 10.06), all of its
interests, rights and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided that:



82









 





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



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



     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter;



     (d) in the case of any such assignment by a Restricted Lender, the assignee must have
approved in writing the substance of the amendment, waiver or consent which caused the assignor to
be a Restricted Lender; and



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



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



     For the purposes of this Section 10.13, a “Restricted Lender” means a Lender
that fails to approve an amendment, waiver or consent requested by the Loan Parties pursuant to
Section 10.01 that has received the written approval of not less than the Required Lenders
but also requires the approval of such Lender.



     10.14 Governing Law; Jurisdiction; Etc.



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



     (b) SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NORTH CAROLINA SITTING IN MECKLENBURG COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF THE WESTERN DISTRICT OF NORTH CAROLINA, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NORTH CAROLINA STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING SHALL



83









 




BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR
ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.




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



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



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



     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby, the Borrower acknowledges and agrees that: (i) the credit
facility provided for hereunder and any related arranging or other services in connection
therewith (including in connection with any amendment, waiver or other modification hereof or of
any other Loan Document) are an arm’s-length commercial transaction between the Borrower and its
Affiliates, on the one hand, and the Administrative Agent and the Arranger, on the other hand, the
Borrower is capable of evaluating and understanding and understands and accepts the terms, risks
and conditions of the transactions contemplated hereby and by the other Loan



84









 




Documents (including any amendment, waiver or other modification thereof or thereof); (ii) in
connection with the process leading to such transaction, the Administrative Agent and the Arranger
each is and has been acting solely as a principal and is not the financial advisor, agent or
fiduciary, for the Borrower or any of its Affiliates, stockholders, creditors or employees or any
other Person; (iii) neither the Administrative Agent nor the Arranger has assumed or will assume an
advisory, agency or fiduciary responsibility in favor of the Borrower with respect to any of the
transactions contemplated hereby or the process leading thereto, including with respect to any
amendment, waiver or other modification hereof or of any other Loan Document (irrespective of
whether the Administrative Agent or the Arranger has advised or is currently advising the Borrower
or any of its Affiliates on other matters) and neither the Administrative Agent nor Arranger has
any obligation to the Borrower or any of its Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Loan
Documents; (iv) the Administrative Agent and the Arranger and their respective Affiliates may be
engaged in a board range of transactions that involve interests that differ from those of the
Borrower and its Affiliates, and neither the Administrative Agent nor the Arranger has any
obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Administrative Agent and the Arranger have not provided and will not
provide any legal, accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby (including any amendment, waiver or other modification hereof or of any other
Loan Document) and the Borrower has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate. The Borrower hereby waives and releases, to the
fullest extent permitted by law, any claims that it may have against the Administrative Agent and
the Arranger with respect to any breach or alleged breach of agency or fiduciary duty.




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



85









 





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



	 	 	 	 	 
	 	PIEDMONT NATURAL GAS COMPANY, INC.

 	 
	 	By:  	/s/ Robert O. Pritchard
 	 
	 	 	Name:  	Robert O. Pritchard 	 
	 	 	Title:  	Treasurer 	 
	 



CREDIT AGREEMENT

Signature Page




 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as

Administrative Agent

 	 
	 	By:  	/s/ Michael Brashler
 	 
	 	 	Name:  	Michael Brashler  	 
	 	 	Title:  	Vice President 	 
	 



CREDIT AGREEMENT

Signature Page





 











 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as a Lender,

L/C Issuer and Swing Line Lender

 	 
	 	By:  	/s/ Scott K. Mitchell
 	 
	 	 	Name:  	Scott K. Mitchell 	 
	 	 	Title:  	Senior Vice President 	 
	 



CREDIT AGREEMENT

Signature Page




 









 








	 	 	 	 	 
	 	BRANCH BANKING AND TRUST COMPANY

 	 
	 	By:  	/s/ H. Wright Uzzell, Jr.
 	 
	 	 	Name:  	H. Wright Uzzell, Jr. 	 
	 	 	Title:  	Senior Vice President 	 
	 



CREDIT AGREEMENT

Signature Page




 









 








	 	 	 	 	 
	 	SUNTRUST BANK

 	 
	 	By:  	/s/ Kelley Brandenburg
 	 
	 	 	Name:  	Kelley Brandenburg 	 
	 	 	Title:  	Vice President 	 
	 



CREDIT AGREEMENT

Signature Page




 









 








	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Eric J. Cosgrove
 	 
	 	 	Name:  	Eric J. Cosgrove 	 
	 	 	Title:  	Assistant Vice President 	 
	 



CREDIT AGREEMENT

Signature Page




 









 








	 	 	 	 	 
	 	AMSOUTH BANK

 	 
	 	By:  	/s/ MONTY R. TRIMBLE
 	 
	 	 	Name:  	MONTY R. TRIMBLE 	 
	 	 	Title:  	SENIOR VICE PRESIDENT 	 
	 



CREDIT AGREEMENT

Signature Page




 









 








	 	 	 	 	 
	 	THE BANK OF NEW YORK

 	 
	 	By:  	/s/ David Sunderwirth
 	 
	 	 	Name:  	David Sunderwirth  	 
	 	 	Title:  	Vice President 	 
	 



CREDIT AGREEMENT

Signature Page




 









 








	 	 	 	 	 
	 	CITIBANK, N.A.

 	 
	 	By:  	/s/ David E. Hunt
 	 
	 	 	Name:  	David E. Hunt  	 
	 	 	Title:  	Attorney-in-Fact 	 
	 



CREDIT AGREEMENT

Signature Page




 









 








	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ J. Matthew Rowand
 	 
	 	 	Name:  	J. Matthew Rowand  	 
	 	 	Title:  	Assistant Vice-President 	 
	 



CREDIT AGREEMENT

Signature Page





 












 






	 	 	 	 	 



SCHEDULE 2.01




COMMITMENTS AND

APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 
	Lender	 	Commitment	 	 	Percentage	 
	Bank of America, N.A.
	 	$	75,000,000.00	 	 	 	21.4285714286	%
	Branch Banking and Trust Company
	 	 	62,500,000.00	 	 	 	17.8571428571	%
	SunTrust Bank
	 	 	62,500,000.00	 	 	 	17.8571428571	%
	U.S. Bank National Association
	 	 	50,000,000.00	 	 	 	14.2857142857	%
	AmSouth Bank
	 	 	25,000,000.00	 	 	 	7.1428571429	%
	The Bank of New York
	 	 	25,000,000.00	 	 	 	7.1428571429	%
	Citibank, N.A.
	 	 	25,000,000.00	 	 	 	7.1428571429	%
	Wachovia Bank, National Association
	 	$	25,000,000.00	 	 	 	7.1428571429	%
	 
	 	 	 	 	 	 
	Total
	 	$	350,000,000.00	 	 	 	100.0000000000	%
	 
	 	 	 	 	 	 





1









 






SCHEDULE 4.01




EXISTING CREDIT FACILITIES

TO BE TERMINATED ON THE CLOSING DATE





	1.	 	Second Amended and Restated Line of Credit dated April 29, 2003 with regard to a line of
credit in the maximum principal amount of up to $60,000,000 extended by SunTrust Bank in
favor of the Borrower, as amended, modified, supplemented, restated and/or replaced from time
to time.
	 
	1.	 	Loan Agreement dated April 6, 2005 with regard to a line of credit in the maximum principal
amount of up to $35,000,000 extended by Branch Banking and Trust Company in favor of the
Borrower, as amended, modified, supplemented, restated and/or replaced from time to time.
	 
	2.	 	Uncommitted Line of Credit dated May 13, 2004 with regard to a line of credit in the maximum
principal amount of $10,000,000 extended by Branch Banking and Trust Company in favor of the
Borrower, as amended, modified, supplemented, restated and/or replaced from time to time.
	 
	3.	 	Revolving Loan Promissory Note dated April 26, 2005 with regard to a line of credit in the
maximum principal amount of up to $45,000,000 extended by Bank of America, NA in favor of the
Borrower, as amended, modified, supplemented, restated and/or replaced from time to time.
	 
	4.	 	Uncommitted Line of Credit dated January 5, 2006 with regard to a line of credit in the
maximum principal amount of up to $60,000,000 extended by Bank of America, NA in favor of the
Borrower, as amended, modified, supplemented, restated and/or replaced from time to time.
	 
	5.	 	Promissory Note dated April 22, 2005 with regard to a line of credit in the maximum principal
amount of up to $60,000,000 extended by Wachovia Bank, National Association in favor of the
Borrower, as amended, modified, supplemented, restated and/or replaced from time to time.
	 
	6.	 	Uncommitted Line of Credit dated January 18, 2006 with regard to a line of credit in the
maximum principal amount of up to $100,000,000 extended by Wachovia Bank, National Association
in favor of the Borrower, as amended, modified, supplemented, restated and/or replaced from
time to time.
	 
	7.	 	Note for Business and Commercial Loans Revolving dated April 28, 2005 with regard to a line
of credit in the maximum principal amount of up to $20,000,000 extended by AmSouth Bank in
favor of the Borrower, as amended, modified, supplemented, restated and/or replaced from time
to time.
	 
	8.	 	Second Amended and Restated Promissory Note dated April 29, 2005 with regard to a line of
credit in the maximum principal amount of up to $30,000,000 extended by U.S.




2









 












	 	 	Bank National
Association in favor of the Borrower, as amended, modified, supplemented, restated and/or
replaced from time to time.
	 
	9.	 	Uncommitted Line of Credit dated January 18, 2006 with regard to the Discretionary Promissory
Note line of credit in the maximum principal amount of up to $40,000,000 extended by U.S. Bank
National Association in favor of the Borrower, as amended, modified, supplemented, restated
and/or replaced from time to time.






3











 





SCHEDULE 5.13




SUBSIDIARIES AND

OTHER EQUITY INVESTMENTS




Part (a). Subsidiaries.




(i) Direct Subsidiaries





	 	 	Piedmont Energy Partners, Inc.






	 	 	Piedmont Hardy Storage Company, LLC





(ii) Indirect Subsidiaries





	 	 	Piedmont Energy Company
	 
	 	 	Piedmont Interstate Pipeline Company
	 
	 	 	Piedmont Intrastate Pipeline Company
	 
	 	 	Piedmont Propane Company





Part (b). Other Equity Investments.





	 	 	SouthStar Energy Services, LLC

Pine Needle LNG Company, LLC

Cardinal Pipeline Company, LLC

Hardy Storage Company, LLC





1









 





SCHEDULE 7.01




EXISTING LIENS




The Borrower and its Subsidiaries are lessees under various leases which the Borrower anticipates
should be construed as operating leases. If so construed, the assets subject to such leases should
be the property of the applicable lessors thereunder, and the interests of such lessors in such
assets should not constitute a Lien granted by the Borrower or any of its Subsidiaries.
Notwithstanding the foregoing, the Borrower has determined to disclose the above-described leases
in an abundance of caution.




	 	 	 	 	 
	 	 	Future Payments	 
	Lease Description	 	Fiscal Year 2006 - Thereafter	 
	Real Property
	 	$	37,620,000.82	 
	Information Systems
	 	$	0.00	 
	CRP
	 	$	197,128.20	 
	Copiers/Faxes
	 	$	1,170,088.24	 
	Vehicles — Rob Pritchard
	 	$	5,737,266.07	 
	Vehicles — Nashville
	 	$	225,000.00	 
	Copiers/Faxes-Nashville
	 	$	13,600.00	 
	EXXON Lease
	 	$	4,469,663.83	 
	 
	 	 	 
	 
	 	 	 	 
	TOTAL
	 	$	49,432,747.16	 






1









 





SCHEDULE 10.02




ADMINISTRATIVE AGENT’S OFFICE;

CERTAIN ADDRESSES FOR NOTICES




BORROWER:




Primary Contact




PIEDMONT NATURAL GAS COMPANY, INC.

Office of the Treasurer

Post Office 33068

Charlotte, North Carolina 33068

Attention: Robert Pritchard

Telephone: 704.731.4332

Telecopier: 704.731.4097

e-mail: rob.pritchard@piedmontng.com

website address: www.piedmontng.com/

U.S. Taxpayer Identification Number: 56-0556998




Secondary




PIEDMONT NATURAL GAS COMPANY, INC.

Office of General Council

Post Office 33068

Charlotte, North Carolina 33068

Attention: Martin Ruegsegger

Telephone: 704.731.4202

Telecopier: 704.731.4086

e-mail: marty.ruegsegger@piedmontng.com

website address: www.piedmontng.com/

U.S. Taxpayer Identification Number: 56-0556998




ADMINISTRATIVE AGENT:




BANK OF AMERICA, N.A.




Your contacts in Agency Servicing:




	 	 	 	 	 	 	 

	Primary	 	Kathy S. Mumpower	 	(Fee collection at close, L/C commission billing)
	 	 	AVP; Client Service Representative	 	 
	 

	 	Telephone:
	 	(704) 386-0482	 	 
	 

	 	Fax:
	 	(704) 409-0070	 	 
	 

	 	Address:
	 	101 North Tryon Street	 	 
	 

	 	 	 	Mail Code NC1-001-04-39	 	 
	 

	 	 	 	Charlotte, North Carolina 28255-0001	 	 






1









 






	 	 	 	 	 	 	 	 	 

	Secondary	 	Lynne Cole	 	 	 	 
	 	 	AVP; Client Service Representative	 	 	 	 
	 

	 	Telephone:
	 	(704) 387-3614	 	 	 	 
	 

	 	Fax:
	 	(704) 409-0003	 	 	 	 
	 

	 	Address:
	 	101 North Tryon Street	 	 	 	 
	 

	 	 	 	Mail Code NC1-001-04-39	 	 	 	 
	 	 	 	 	Charlotte, North Carolina 28255-0001	 	 
	 
	 	 	 	 	 	 	 	 
	Wire Instructions:	 	Bank of America, N.A.	 	ABA #:	 	026-009-593
	 	 	New York, NY	 	Acct.#:	 	136-621-225-0600
	 

	 	 	 	 	 	Attn:
	 	Credit Services
	 

	 	 	 	 	 	Ref:
	 	Piedmont Natural Gas Company, Inc.
	 
	 	 	 	 	 	 	 	 
	Your contacts in Agency Management:	 	 	 	 	 	 
	Primary	 	Laura Call	 	 	 	(financial reporting
requirements, bank group communications)
	 	 	Agency Officer	 	 	 	
	 	 	Bank of America, N.A.	 	 	 	 
	 	 	Mail Code: IL1-231-08-30	 	 	 	 
	 	 	231 South LaSalle Street	 	 	 	 
	 	 	Chicago, Illinois 60604	 	 	 	 
	 	 	Telephone: (312) 828-3559	 	 	 	 
	 

	 	Fax: (877) 207-2883
	 	 	 	 
	 	 	Email: laura.call@bankofamerica.com	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Secondary	 	Felicia Brinson	 	 	 	 
	 	 	Agency Officer	 	 	 	 
	 	 	Bank of America, N.A.	 	 	 	 
	 	 	Mail Code: IL1-231-08-30	 	 	 	 
	 	 	231 South LaSalle Street	 	 	 	 
	 	 	Chicago, Illinois 60604	 	 	 	 
	 

	 	Telephone: (312) 828-7299
	 	 	 	 	 	 
	 

	 	Fax: (877) 216-2432
	 		 	 	 	 
	 	 	Email: felicia.brinson@bankofamerica.com	 	 	 	 






2









 






	 	 	 	 	 	 	 

	Your contacts for Issuing Standby Letters of Credit:	 	 
	 
	 	 	 	 	 	 
	Primary	 	Sandra Leon	 	 
	 	 	VP: Trade Finance	 	 
	 	 	Bank of America, N.A.	 	 
	 	 	Mail Code: CA9-705-07-05	 	 
	 	 	1000 West Temple Street	 	 
	 	 	Los Angeles, CA 90012-1514	 	 
	 

	 	Telephone: (213) 580-8369
	 	 
	 

	 	Fax: (213) 580-8440
	 	 
	 	 	Email: Sandra.leon@bankofamerica.com	 	 
	 
	 	 	 	 	 	 
	Secondary	 	Tai Anh Lu	 	 
	 	 	Officer; Trade Finance	 	 
	 	 	Bank of America, N.A.	 	 
	 	 	Mail Code: CA9-705-07-05	 	 
	 	 	1000 West Temple Street	 	 
	 	 	Los Angeles, CA 90012-1514	 	 
	 

	 	Telephone: (213) 481-7840
	 	 
	 

	 	Fax: (213) 580-8442
	 	 
	 	 	Email: tai_anh.lu@bankofamerica.com	 	 






3









 






SCHEDULE 10.06




PROCESSING AND RECORDATION FEES




The Administrative Agent will charge a processing and recordation fee (an “Assignment Fee”) in the
amount of $2,500 for each assignment; provided, however, that in the event of two
or more concurrent assignments to members of the same Assignee Group (which may be effected by a
suballocation of an assigned amount among members of such Assignee Group) or two or more concurrent
assignments by members of the same Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group), the Assignment Fee will be $2,500 plus the amount set
forth below:




	 	 	 	 	 
	Transaction	 	Assignment Fee
	First four concurrent assignments or suballocations to
members of an Assignee Group (or from members of an
Assignee Group, as applicable)

	 	 	-0-	 
	 
	 	 	 	 
	Each additional concurrent assignment or suballocation to a
member of such Assignee Group (or from a member of such
Assignee Group, as applicable)

	 	$	500	 







1











 





EXHIBIT A




FORM OF REVOLVING LOAN NOTICE




Date:                     ,               



To: Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of April 25, 2006 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among
PIEDMONT NATURAL GAS COMPANY, INC., a North Carolina corporation (the “Borrower”), the
Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender.



     The undersigned hereby requests (select one):



     o A Borrowing of Revolving Loans      
o A conversion or continuation of Loans




	 	1.	 	On                      (a Business Day).
	 
	 	2.	 	In the amount of $                     .
	 
	 	3.	 	Comprised of                     .
	 
	 	 	 	                       [Type of Revolving Loan requested]
	 
	 	4.	 	For Eurodollar Rate Loans: with an Interest Period of                     months.





     The Revolving Borrowing, if any, requested herein complies with the provisos to the first
sentence of Section 2.01 of the Agreement.



	 	 	 	 	 
	 	PIEDMONT NATURAL GAS COMPANY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Form of Revolving Loan Notice







A-1









 








EXHIBIT B




FORM OF SWING LINE LOAN NOTICE




Date:                     ,              



To: Bank of America, N.A., as Swing Line Lender



Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:





     Reference is made to that certain Credit Agreement, dated as of April 25, 2006 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among
PIEDMONT NATURAL GAS COMPANY, INC., a North Carolina corporation (the “Borrower”), the
Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender.



     The undersigned hereby requests a Swing Line Loan:



     1. On                      (a Business Day).



     2. In the amount of $                      .



     The Swing Line Borrowing requested herein complies with the requirements of the provisos to
the first sentence of Section 2.04(a) of the Agreement.



	 	 	 	 	 
	 	PIEDMONT NATURAL GAS COMPANY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Form of Swing Line Loan Notice






B-1









 








EXHIBIT C




FORM OF NOTE




April 25, 2006





     FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to
                    or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time
to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of April
25, 2006 (as amended, restated, extended, supplemented or otherwise modified in writing from time
to time, the “Agreement;” the terms defined therein being used herein as therein defined),
among the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender.



     The Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. Except as otherwise provided in Section 2.04(f) of the
Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to
the Administrative Agent for the account of the Lender in Dollars in immediately available funds at
the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such
unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per annum rate set forth
in the Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. This Note is also entitled to the benefits of the Guaranty. Upon the occurrence and
continuation of one or more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable
all as provided in the Agreement. Loans made by the Lender shall be evidenced by one or more loan
accounts or records maintained by the Lender in the ordinary course of business. The Lender may
also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans
and payments with respect thereto.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



Form of Note





C-1









 








     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA.



	 	 	 	 	 
	 	PIEDMONT NATURAL GAS COMPANY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




Form of Note







C-2









 






	 	 	 	 	 



LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Principal or	 	 	Outstanding	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	End of	 	 	Interest	 	 	Principal	 	 	 	 
	 	 	Type of	 	 	Amount of	 	 	Interest	 	 	Paid This	 	 	Balance	 	 	Notation	 
	Date	 	Loan Made	 	 	Loan Made	 	 	Period	 	 	Date	 	 	This Date	 	 	Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





Form of Note






C-3









 








EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                     ,              



To: Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of April 25, 2006 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among
PIEDMONT NATURAL GAS COMPANY, INC., a North Carolina corporation (the “Borrower”), the
Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender.



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
                     of the Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to
the Administrative Agent on the behalf of the Borrower, and that:


[Use following paragraph 1 for fiscal year-end financial statements; provided, if the
applicable Form 10K has been filed with the SEC, no such attachment or certification is necessary
and paragraph 1 may be omitted]




     1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of the Borrower ended as
of the above date, together with the report and opinion of an independent certified public
accountant required by such section.


[Use following paragraph 1 for fiscal quarter-end financial statements; provided, if the
applicable Form 10Q has been filed with the SEC, (a) no such attachment or certification is
necessary, (b) the first sentence of paragraph 1 may be omitted and (c) the second sentence with
the bracketed language shall be utilized as paragraph 1]




     1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the
above date. Such financial statements [contained in the Form 10Q most recently filed with the SEC]
fairly present the financial condition, results of operations and cash flows of the Borrower and
its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to
normal year-end audit adjustments and the absence of footnotes.



     2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower during the accounting period covered by the
attached financial statements.



Form of Compliance Certificate




D-1









 








     3. A review of the activities of the Borrower during such fiscal period has been made under
the supervision of the undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents, and


[select one:]




     [to the best knowledge of the undersigned during such fiscal period, the Borrower performed
and observed each covenant and condition of the Loan Documents applicable to it, and no Default has
occurred and is continuing.]


—or—




     [to the best knowledge of the undersigned during such fiscal period, the following covenants
or conditions have not been performed or observed and the following is a list of each such Default
and its nature and status:]



     4. The representations and warranties of the Borrower contained in Article V (except
Section 5.05(c)) of the Agreement, and any representations and warranties of the Borrower
that are contained in any document furnished at any time under or in connection with the Loan
Documents, are true and correct on and as of the date hereof, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this Compliance Certificate,
the representations and warranties contained in subsections (a) and (b) of Section 5.05 of
the Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 6.01 of the Agreement, including the statements in
connection with which this Compliance Certificate is delivered.



     5. The financial covenant analyses and information set forth on Schedules 2 and
3 attached hereto are true and accurate on and as of the date of this Certificate.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of                     ,                     .



	 	 	 	 	 
	 	PIEDMONT NATURAL GAS COMPANY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Form of Compliance Certificate







D-2









 








For the
Quarter/Year ended                      (“Statement Date”)




SCHEDULE 2

to the Compliance Certificate

($ in 000’s)





	I.	 	Section 7.06 — Ratio of Consolidated Funded Indebtedness to Total Capitalization.





	 	 	 	 	 	 	 	 	 	 	 

	 	 	A.	 	Consolidated Funded Indebtedness at Statement Date:	 	$	                    	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	B.	 	Total Capitalization at Statement Date:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	1.	 	Shareholders’ Equity:	 	$	                    	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	2.	 	Consolidated Funded Indebtedness:	 	$	                    	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	3.	 	Total Capitalization (Line I.B.1
plus Line I.B.2):	 	$	                    	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	C.	 	Ratio of Consolidated
Funded Indebtedness to Total Capitalization (Line I.A ÷ Line I.B.3):	 	                     to 1
	 
	 	 	 	Maximum permitted:	 	0.70 to 1.00






Form of Compliance Certificate







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EXHIBIT E




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each]1Assignor
identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2
Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and
agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are
several and not joint.]4 Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in full.



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





 




			
	1	 	For bracketed language here and elsewhere in
this form relating to the Assignor(s), if the assignment is from a single
Assignor, choose the first bracketed language. If the assignment is from
multiple Assignors, choose the second bracketed language.
	 
	2	 	For bracketed language here and elsewhere in
this form relating to the Assignee(s), if the assignment is to a single
Assignee, choose the first bracketed language. If the assignment is to
multiple Assignees, choose the second bracketed language.
	 
	3	 	Select as appropriate.
	 
	4	 	Include bracketed language if there are
either multiple Assignors or multiple Assignees.





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assignment is without recourse to [the][any] Assignor and, except as expressly provided in
this Assignment and Assumption, without representation or warranty by [the][any] Assignor.





	1.	 	Assignor[s]:                     
	 
	2.	 	Assignee[s]:
                    
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
	 
	3.	 	Borrower(s):                     
	 
	4.	 	Administrative Agent: Bank of America, N.A., as the administrative agent under the
Credit Agreement
	 
	5.	 	Credit Agreement: Credit Agreement, dated as of April 25, 2006, among PIEDMONT
NATURAL GAS COMPANY, INC., a North Carolina corporation, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer, and Swing Line Lender
	 
	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Aggregate	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount of	 	 	Amount of	 	 	Percentage	 	 	 
	 	 	 	 	Commitment	 	 	Commitment	 	 	Assigned of	 	 	CUSIP
	Assignor[s]5	 	Assignee[s]6	 	for all Lenders7	 	 	Assigned	 	 	Commitment8	 	 	Number
	 
	 	 	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






	7.	 	Trade Date:                      ] 9







 




			
	5	 	List each Assignor, as appropriate.
	 
	6	 	List each Assignee, as appropriate.
	 
	7	 	Amounts in this column and in the column
immediately to the right to be adjusted by the counterparties to take into
account any payments or prepayments made between the Trade Date and the
Effective Date.
	 
	8	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.
	 
	9	 	To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.





Form of Assignment and Assumption




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




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



	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE



[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 


Consented to and Accepted:



BANK OF AMERICA, N.A., as




     Administrative Agent




	 	 	 	 	 
	By:  	 	 	 
	 	Title: 	 	 
	 	 	 	 
	 


Consented to:




	 	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Title: 	 	 
	 	 	 	 
	 



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ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION



          1. Representations and Warranties.




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




          1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
10.06(b)(iii), (v) and (vi) of the Credit Agreement (subject to receipt of such
consents as may be required under the Credit Agreement), (iii) from and after the Effective Date,
it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the
extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it is sophisticated with respect to decisions to acquire assets of the type presented by
[the][such] Assigned Interest and either it, or the Person exercising discretion in making its
decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type,
(v) it has received a copy of the Credit Agreement and has received or has been accorded the
opportunity to receive copies of the most recent financial statements delivered pursuant to
Section 6.01(a) and 6.01(b) thereof, as applicable, and such other documents and
information as it deems appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has independently
and without reliance upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and decision to enter
into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it
is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant
to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b)
agrees that (i) it will, independently and without reliance upon the Administrative Agent,
[the][any] Assignor or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in




Form of Assignment and Assumption





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accordance with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.




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




          3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of                                          [confirm that
choice of law provision parallels the Credit Agreement].




Form of Assignment and Assumption




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EXHIBIT F




FORM OF GUARANTY AGREEMENT




     THIS GUARANTY AGREEMENT (this “Guaranty Agreement”), dated as of April __, 2006, is
made by EACH OF THE UNDERSIGNED AND EACH OTHER PERSON WHO SHALL BECOME A PARTY HERETO BY EXECUTION
OF A GUARANTY JOINDER AGREEMENT (each a “Guarantor” and collectively the
“Guarantors”) to BANK OF AMERICA, N.A., a national banking association organized and
existing under the laws of the United States, as administrative agent (in such capacity, the
“Administrative Agent”) for each of the lenders (the “Lenders” now or hereafter
party to the Credit Agreement defined below (collectively with the Administrative Agent, and
certain other Persons parties to Related Credit Arrangements as more particularly described in
Section 19 hereof, the “Beneficiaries”). All capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such terms in the Credit Agreement.



W I T N E S S E T H:




     WHEREAS, the Beneficiaries have agreed to provide to PIEDMONT NATURAL GAS COMPANY, INC. (the
“Borrower”) certain credit facilities, including a revolving credit facility with a letter
of credit and swing line sublimit pursuant to the terms of that certain Credit Agreement dated as
of April 25, 2006, among the Borrower, the Administrative Agent and the Lenders (as from time to
time amended, revised, modified, supplemented or amended and restated, the “Credit
Agreement”); and



     WHEREAS, each Guarantor is, directly or indirectly, a Subsidiary of the Borrower that is a
Regulated Entity and will materially benefit from the Loans made and to be made, and the Letters of
Credit issued and to be issued, under the Credit Agreement; and



     WHEREAS, each Guarantor is required to enter into this Guaranty Agreement pursuant to the
terms of the Credit Agreement; and



     WHEREAS, a material part of the consideration given in connection with and as an inducement to
the execution and delivery of the Credit Agreement by the Lenders and the Administrative Agent was
the obligation of the Borrower to cause each Guarantor to enter into this Guaranty Agreement, and
the Beneficiaries are unwilling to extend and maintain the credit facilities provided under the
Loan Documents unless the Guarantors enter into this Guaranty Agreement;



     NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the
parties hereto agree as follows:



     1. Guaranty. Each Guarantor hereby jointly and severally, unconditionally,
absolutely, continually and irrevocably guarantees to the Administrative Agent for the benefit of
the Beneficiaries the payment and performance in full of the Guaranteed Liabilities (as defined
below). For all purposes of this Guaranty Agreement, “Guaranteed Liabilities” means: (a)
the



Form of Guaranty Agreement







F-1









 







Borrower’s prompt payment in full, when due or declared due and at all such times, of all
Obligations and all other amounts pursuant to the terms of the Credit Agreement, the Notes, and all
other Loan Documents heretofore, now or at any time or times hereafter owing, arising, due or
payable from the Borrower to any one or more of the Beneficiaries, including principal, interest,
premiums and fees (including, but not limited to, loan fees and reasonable fees, charges and
disbursements of external counsel (“Attorney Costs”); (b) the Borrower’s prompt, full and
faithful performance, observance and discharge of each and every agreement, undertaking, covenant
and provision to be performed, observed or discharged by the Borrower under the Credit Agreement,
the Notes and all other Loan Documents; and (c) the prompt payment in full by each Loan Party, when
due or declared due and at all such times, of obligations and liabilities now or hereafter arising
under Related Credit Arrangements. The Guarantors’ obligations to the Beneficiaries under this
Guaranty Agreement are hereinafter collectively referred to as the “Guarantors’
Obligations” and, with respect to each Guarantor individually, the “Guarantor’s
Obligations”. Notwithstanding the foregoing, the liability of each Guarantor individually with
respect to its Guarantor’s Obligations shall be limited to an aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance under Section 548 of
the United States Bankruptcy Code or any comparable provisions of any applicable state law.




     Each Guarantor agrees that it is jointly and severally, directly and primarily liable (subject
to the limitation in the immediately preceding sentence) for the Guaranteed Liabilities.



     2. Payment. If the Borrower shall default in payment or performance of any of the
Guaranteed Liabilities, whether principal, interest, premium, fee (including, but not limited to,
loan fees and Attorney Costs), or otherwise, when and as the same shall become due, and after
expiration of any applicable grace period, whether according to the terms of the Credit Agreement,
by acceleration, or otherwise, or upon the occurrence and during the continuance of any Event of
Default under the Credit Agreement, then any or all of the Guarantors will, upon demand thereof by
the Administrative Agent, fully pay to the Administrative Agent, for the benefit of the
Beneficiaries, subject to any restriction on each Guarantor’s Obligations set forth in Section
1 hereof, an amount equal to all the Guaranteed Liabilities then due and owing.



     3. Absolute Rights and Obligations. This is a guaranty of payment and not of
collection. The Guarantors’ Obligations under this Guaranty Agreement shall be joint and several,
absolute and unconditional irrespective of, and each Guarantor hereby expressly waives, to the
extent permitted by law, any defense to its obligations under this Guaranty Agreement to which it
is a party by reason of:




     (a) any lack of legality, validity or enforceability of the Credit Agreement, of any of
the Notes, of any other Loan Document, or of any other agreement or instrument creating,
providing security for, or otherwise relating to any of the Guarantors’ Obligations, any of
the Guaranteed Liabilities, or any other guaranty of any of the Guaranteed Liabilities (the
Loan Documents and all such other agreements and instruments being collectively referred to
as the “Related Agreements”);



Form of Guaranty Agreement







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     (b) any action taken under any of the Related Agreements, any exercise of any right or
power therein conferred, any failure or omission to enforce any right conferred thereby, or
any waiver of any covenant or condition therein provided;




     (c) any acceleration of the maturity of any of the Guaranteed Liabilities, of the
Guarantor’s Obligations of any other Guarantor, or of any other obligations or liabilities
of any Person under any of the Related Agreements;




     (d) any release, exchange, non-perfection, lapse in perfection, disposal, deterioration
in value, or impairment of any security for any of the Guaranteed Liabilities, for any of
the Guarantor’s Obligations of any Guarantor, or for any other obligations or liabilities of
any Person under any of the Related Agreements;




     (e) any dissolution of the Borrower or any Guarantor or any other party to a Related
Agreement, or the combination or consolidation of the Borrower or any Guarantor or any other
party to a Related Agreement into or with another entity or any transfer or disposition of
any assets of the Borrower or any Guarantor or any other party to a Related Agreement;




     (f) any extension (including without limitation extensions of time for payment),
renewal, amendment, restructuring or restatement of, any acceptance of late or partial
payments under, or any change in the amount of any borrowings or any credit facilities
available under, the Credit Agreement, any of the Notes or any other Loan Document or any
other Related Agreement, in whole or in part;




     (g) the existence, addition, modification, termination, reduction or impairment of
value, or release of any other guaranty (or security therefor) of the Guaranteed Liabilities
(including without limitation the Guarantor’s Obligations of any other Guarantor and
obligations arising under any other Guaranty now or hereafter in effect);




     (h) any waiver of, forbearance or indulgence under, or other consent to any change in
or departure from any term or provision contained in the Credit Agreement, any other Loan
Document or any other Related Agreement, including without limitation any term pertaining to
the payment or performance of any of the Guaranteed Liabilities, any of the Guarantor’s
Obligations of any other Guarantor, or any of the obligations or liabilities of any party to
any other Related Agreement;




     (i) any other circumstance whatsoever (with or without notice to or knowledge of any
Guarantor) which may or might in any manner or to any extent vary the risks of such
Guarantor, or might otherwise constitute a legal or equitable defense available to, or
discharge of, a surety or a guarantor, including without limitation any right to require or
claim that resort be had to the Borrower or any other Loan Party or to any collateral in
respect of the Guaranteed Liabilities or Guarantors’ Obligations, whether arising under
North Carolina General Statutes Sections 26-7 and 26-9 or otherwise.



Form of Guaranty Agreement






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It is the express purpose and intent of the parties hereto that this Guaranty Agreement and the
Guarantors’ Obligations hereunder and under each Guaranty Joinder Agreement shall be absolute and
unconditional under any and all circumstances and shall not be discharged except by payment as
herein provided.




     4. Currency and Funds of Payment. All Guarantors’ Obligations will be paid in lawful
currency of the United States of America and in immediately available funds, regardless of any law,
regulation or decree now or hereafter in effect that might in any manner affect the Guaranteed
Liabilities, or the rights of any Beneficiary with respect thereto as against the Borrower, or
cause or permit to be invoked any alteration in the time, amount or manner of payment by the
Borrower of any or all of the Guaranteed Liabilities.



     5. Events of Default. Without limiting the provisions of Section 2 hereof, in
the event that there shall occur and be continuing an Event of Default, then notwithstanding any
collateral or other security or credit support for the Guaranteed Liabilities, at the
Administrative Agent’s election and without notice thereof or demand therefor, the Guarantors’
Obligations shall immediately be and become due and payable.



     6. Subordination. Until this Guaranty Agreement is terminated in accordance with
Section 22 hereof, each Guarantor hereby unconditionally subordinates all present and
future debts, liabilities or obligations now or hereafter owing to such Guarantor (i) of the
Borrower, to the payment in full of the Guaranteed Liabilities, (ii) of every other Guarantor (an
“obligated guarantor”), to the payment in full of the Guarantors’ Obligations of such obligated
guarantor, and (iii) of each other Person now or hereafter constituting a Loan Party, to the
payment in full of the obligations of such Loan Party owing to any Beneficiary and arising under
the Loan Documents or the Related Credit Arrangements. All amounts due under such subordinated
debts, liabilities, or obligations shall, upon the occurrence and during the continuance of an
Event of Default (but not until such time that an Event of Default has occurred and is continuing),
be collected and, upon request by the Administrative Agent, paid over forthwith to the
Administrative Agent for the benefit of the Beneficiaries on account of the Guaranteed Liabilities,
the Guarantors’ Obligations, or such other obligations, as applicable, and, after such request and
pending such payment, shall be held by such Guarantor as agent and bailee of the Beneficiaries
separate and apart from all other funds, property and accounts of such Guarantor.



     7. Suits. Each Guarantor from time to time shall pay to the Administrative Agent for
the benefit of the Beneficiaries, on demand, at the Administrative Agent’s Office or such other
address as the Administrative Agent shall give notice of to such Guarantor, the Guarantors’
Obligations as they become or are declared due, and in the event such payment is not made
forthwith, the Administrative Agent may proceed to suit against any one or more or all of the
Guarantors. At the Administrative Agent’s election, one or more and successive or concurrent suits
may be brought hereon by the Administrative Agent against any one or more or all of the Guarantors,
whether or not suit has been commenced against the Borrower, any other Guarantor, or any other
Person and whether or not the Beneficiaries have taken or failed to take any other action to
collect all or any portion of the Guaranteed Liabilities or have taken or failed to take any
actions against any collateral securing payment or performance of all or any portion of the



Form of Guaranty Agreement







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Guaranteed Liabilities, and irrespective of any event, occurrence, or condition described in
Section 3 hereof.




     8. Set-Off and Waiver. Each Guarantor waives any right to assert against any
Beneficiary as a defense, counterclaim, set-off, recoupment or cross claim in respect of its
Guarantor’s Obligations, any defense (legal or equitable) or other claim which such Guarantor may
now or at any time hereafter have against the Borrower or any or all of the Beneficiaries without
waiving any additional defenses, set-offs, counterclaims or other claims otherwise available to
such Guarantor.



     9. Waiver of Notice; Subrogation.




     (a) Each Guarantor hereby waives to the extent permitted by law notice of the following
events or occurrences: (i) acceptance of this Guaranty Agreement; (ii) the Lenders’
heretofore, now or from time to time hereafter making Loans and issuing Letters of Credit
and otherwise loaning monies or giving or extending credit to or for the benefit of the
Borrower or any other Loan Party, or otherwise entering into arrangements with any Loan
Party giving rise to Guaranteed Liabilities, whether pursuant to the Credit Agreement or the
Notes or any other Loan Document or Related Agreement or any amendments, modifications, or
supplements thereto, or replacements or extensions thereof; (iii) presentment, demand,
default, non-payment, partial payment and protest; and (iv) any other event, condition, or
occurrence described in Section 3 hereof. Each Guarantor agrees that each
Beneficiary may heretofore, now or at any time hereafter do any or all of the foregoing in
such manner, upon such terms and at such times as each Beneficiary, in its sole and absolute
discretion, deems advisable, without in any way or respect impairing, affecting, reducing or
releasing such Guarantor from its Guarantor’s Obligations, and each Guarantor hereby
consents to each and all of the foregoing events or occurrences.




     (b) Each Guarantor hereby agrees that payment or performance by such Guarantor of its
Guarantor’s Obligations under this Guaranty Agreement may be enforced by the Administrative
Agent on behalf of the Beneficiaries upon demand by the Administrative Agent to such
Guarantor without the Administrative Agent being required, such Guarantor expressly waiving
to the extent permitted by law any right it may have to require the Administrative Agent, to
(i) prosecute collection or seek to enforce or resort to any remedies against the Borrower
or any other Guarantor or any other guarantor of the Guaranteed Liabilities, or (ii) seek to
enforce or resort to any remedies with respect to any security interests, Liens or
encumbrances granted to the Administrative Agent or any Lender or other party to a Related
Agreement by the Borrower, any other Guarantor or any other Person on account of the
Guaranteed Liabilities or any guaranty thereof, IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED
AND AGREED TO BY SUCH GUARANTOR THAT DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE MADE BY THE
ADMINISTRATIVE AGENT, AND THE PROVISIONS HEREOF ENFORCED BY THE ADMINISTRATIVE AGENT,
EFFECTIVE AS OF THE FIRST DATE



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ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE CREDIT AGREEMENT.




     (c) Each Guarantor further agrees with respect to this Guaranty Agreement that it shall
have no right of subrogation, reimbursement, contribution or indemnity, nor any right of
recourse to security for the Guaranteed Liabilities unless and until 93 days immediately
following the Facility Termination Date (as defined below) shall have elapsed without the
filing or commencement, by or against any Loan Party, of any state or federal action, suit,
petition or proceeding seeking any reorganization, liquidation or other relief or
arrangement in respect of creditors of, or the appointment of a receiver, liquidator,
trustee or conservator in respect to, such Loan Party or its assets. This waiver is
expressly intended to prevent the existence of any claim in respect to such subrogation,
reimbursement, contribution or indemnity by any Guarantor against the estate of any other
Loan Party within the meaning of Section 101 of the Bankruptcy Code, in the event of a
subsequent case involving any other Loan Party. If an amount shall be paid to any Guarantor
on account of such rights at any time prior to termination of this Guaranty Agreement in
accordance with the provisions of Section 22 hereof, such amount shall be held in
trust for the benefit of the Beneficiaries and shall forthwith be paid to the Administrative
Agent, for the benefit of the Beneficiaries, to be credited and applied upon the Guarantors’
Obligations, whether matured or unmatured, in accordance with the terms of the Credit
Agreement or otherwise as the Beneficiaries may elect. The agreements in this subsection
shall survive repayment of all of the Guarantors’ Obligations, the termination or expiration
of this Guaranty Agreement in any manner, including but not limited to termination in
accordance with Section 22 hereof, and occurrence of the Facility Termination Date.
For purposes of this Guaranty Agreement, “Facility Termination Date” means the date
as of which all of the following shall have occurred: (a) the Borrower shall have
permanently terminated the credit facilities under the Loan Documents by final payment in
full of all Outstanding Amounts, together with all accrued and unpaid interest and fees
thereon, other than (i) the undrawn portion of Letters of Credit and (ii) all letter of
credit fees relating thereto accruing after such date (which fees shall be payable solely
for the account of the L/C Issuer and shall be computed (based on interest rates and the
Applicable Rate then in effect) on such undrawn amounts to the respective expiry dates of
the Letters of Credit), in each case as have been fully Cash Collateralized or as to which
other arrangements with respect thereto satisfactory to the Administrative Agent and the L/C
Issuer shall have been made; (b) all Commitments shall have terminated or expired; (c) the
obligations and liabilities of the Borrower and each other Loan Party under all Related
Credit Arrangements shall have been fully, finally and irrevocably paid and satisfied in
full and the Related Credit Arrangements shall have expired or been terminated, or other
arrangements satisfactory to the counterparties shall have been made with respect thereto;
and (d) the Borrower and each other Loan Party shall have fully, finally and irrevocably
paid and satisfied in full all of their respective obligations and liabilities arising under
the Loan Documents, including with respect to the Borrower and the Obligations (except for
future obligations consisting of continuing indemnities and other contingent Obligations of
the Borrower or any Loan Party that may be owing to any of its Related Parties or any Lender
pursuant to the Loan



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Documents and expressly survive termination of the Credit Agreement or any other Loan
Document).



     10. Effectiveness; Enforceability. This Guaranty Agreement shall be effective as of
the date first above written and shall continue in full force and effect until termination in
accordance with Section 22 hereof. Any claim or claims that the Beneficiaries may at any
time hereafter have against a Guarantor under this Guaranty Agreement may be asserted by the
Administrative Agent on behalf of the Beneficiaries by written notice directed to such Guarantor in
accordance with Section 24 hereof.



     11. Representations and Warranties. Each Guarantor warrants and represents to the
Administrative Agent, for the benefit of the Beneficiaries, that it is duly authorized to execute
and deliver this Guaranty Agreement (or the Guaranty Joinder Agreement to which it is a party, as
applicable), and to perform its obligations under this Guaranty Agreement, that this Guaranty
Agreement (or the Guaranty Joinder Agreement to which it is a party, as applicable) has been duly
executed and delivered on behalf of such Guarantor by its duly authorized representatives; that
this Guaranty Agreement (and any Guaranty Joinder Agreement to which such Guarantor is a party) is
legal, valid, binding and enforceable against such Guarantor in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and by general equitable principles; and
that such Guarantor’s execution, delivery and performance of this Guaranty Agreement (and any
Guaranty Joinder Agreement to which such Guarantor is a party) do not violate or constitute a
breach of any of its Organizational Documents, any agreement or instrument to which such Guarantor
is a party, or any law, order, regulation, decree or award of any governmental authority or
arbitral body to which it or its properties or operations is subject.



     12. Expenses. Each Guarantor agrees to be jointly and severally liable for the
payment of all reasonable fees and expenses, including Attorney Costs, incurred by any Beneficiary
in connection with the enforcement of this Guaranty Agreement, whether or not suit be brought.



     13. Reinstatement. Each Guarantor agrees that this Guaranty Agreement shall continue
to be effective or be reinstated, as the case may be, at any time payment received by any
Beneficiary in respect of any Guaranteed Liabilities is rescinded or must be restored for any
reason, or is repaid by any Beneficiary in whole or in part in good faith settlement of any pending
or threatened avoidance claim.



     14. [Intentionally Omitted.]



     15. Reliance. Each Guarantor represents and warrants to the Administrative Agent, for
the benefit of the Beneficiaries, that: (a) such Guarantor has adequate means to obtain on a
continuing basis (i) from the Borrower, information concerning the Loan Parties and the Loan
Parties’ financial condition and affairs and (ii) from other reliable sources, such other
information as it deems material in deciding to provide this Guaranty Agreement and any
Guaranty Joinder Agreement (“Other Information”), and has full and complete access to the



Form of Guaranty Agreement





F-7









 







Loan Parties’ books and records and to such Other Information; (b) such Guarantor is not
relying on any Beneficiary or its or their employees, directors, agents or other representatives or
Affiliates, to provide any such information, now or in the future; (c) such Guarantor has been
furnished with and reviewed the terms of the Credit Agreement and such other Loan Documents and
Related Agreements as it has requested, is executing this Guaranty Agreement (or the Guaranty
Joinder Agreement to which it is a party, as applicable) freely and deliberately, and understands
the obligations and financial risk undertaken by providing this Guaranty Agreement (and any
Guaranty Joinder Agreement); (d) such Guarantor has relied solely on the Guarantor’s own
independent investigation, appraisal and analysis of the Borrower, the Borrower’s financial
condition and affairs, the “Other Information”, and such other matters as it deems material in
deciding to provide this Guaranty Agreement (and any Guaranty Joinder Agreement) and is fully aware
of the same; and (e) such Guarantor has not depended or relied on any Beneficiary or its or their
employees, directors, agents or other representatives or Affiliates, for any information whatsoever
concerning the Borrower or the Borrower’s financial condition and affairs or any other matters
material to such Guarantor’s decision to provide this Guaranty Agreement (and any Guaranty Joinder
Agreement), or for any counseling, guidance, or special consideration or any promise therefor with
respect to such decision. Each Guarantor agrees that no Beneficiary has any duty or responsibility
whatsoever, now or in the future, to provide to such Guarantor any information concerning the
Borrower or the Borrower’s financial condition and affairs, or any Other Information, other than as
expressly provided herein, and that, if such Guarantor receives any such information from any
Beneficiary or its or their employees, directors, agents or other representatives or Affiliates,
such Guarantor will independently verify the information and will not rely on any Beneficiary or
its or their employees, directors, agents or other representatives or Affiliates, with respect to
such information.




     16. Rules of Interpretation. The rules of interpretation contained in Sections
1.02 and 1.05 of the Credit Agreement shall be applicable to this Guaranty Agreement
and each Guaranty Joinder Agreement and are hereby incorporated by reference. All representations
and warranties contained herein shall survive the delivery of documents and any extension of credit
referred to herein or guaranteed hereby.



     17. [Intentionally Omitted.]



     18. Binding Agreement; Assignment. Subject to the limitations referenced in this
Section 18 and in the Credit Agreement regarding assignment, this Guaranty Agreement, each
Guaranty Joinder Agreement and the terms, covenants and conditions hereof and thereof, shall be
binding upon and inure to the benefit of the parties hereto and thereto, and to their respective
heirs, legal representatives, successors and assigns; provided, however, that no
Guarantor shall be permitted to assign any of its rights, powers, duties or obligations under this
Guaranty Agreement, any Guaranty Joinder Agreement or any other interest herein or therein without
the prior written consent of the Administrative Agent. Without limiting the generality of the
foregoing sentence of this Section 18, any Lender may assign to one or more Persons, or
grant to one or more Persons participations in or to, all or any part of its rights and obligations
under the Credit Agreement (to the extent permitted by the Credit Agreement); and to the extent of
any such assignment or participation such other Person shall, to the fullest extent permitted by
law, thereupon become vested with all the benefits in respect thereof granted to such Lender herein
or



Form of Guaranty Agreement





F-8









 







otherwise, subject however, to the provisions of the Credit Agreement, including Article
IX thereof (concerning the Administrative Agent) and Section 10.07 thereof concerning
assignments and participations. All references herein to the Administrative Agent shall include
any successor thereof.




     19. Related Credit Arrangements. All obligations of any Loan Party under Related
Credit Arrangements to which any Lender or its Affiliates are a party shall be deemed to be
Guaranteed Liabilities, and each Lender or Affiliate of a Lender party to any such Related Credit
Arrangement shall be deemed to be a Beneficiary hereunder with respect to such Guaranteed
Liabilities; provided, however, that such obligations shall cease to be Guaranteed
Liabilities at such time, prior to the Facility Termination Date, as such Person (or Affiliate of
such Person) shall cease to be a “Lender” under the Credit Agreement.




No Person who obtains the benefit of this Guaranty Agreement by virtue of the provisions of this
Section shall have, prior to the Facility Termination Date, any right to notice of any action or
to consent to, direct or object to any action hereunder or under any other Loan Document or
otherwise in respect of the Guarantors’ Obligations (including the release or modification of
any Guarantors’ Obligations or security therefor) other than in its capacity as a Lender and
only to the extent expressly provided in the Loan Documents. Each Beneficiary not a party to
the Credit Agreement who obtains the benefit of this Guaranty Agreement by virtue of the
provisions of this Section shall be deemed to have acknowledged and accepted the appointment of
the Administrative Agent pursuant to the terms of the Credit Agreement, and that with respect to
the actions and omissions of the Administrative Agent hereunder or otherwise relating hereto
that do or may affect such Beneficiary, the Administrative Agent and each of its Related Parties
shall be entitled to all the rights, benefits and immunities conferred under Article IX
of the Credit Agreement.



     20. Severability. The provisions of this Guaranty Agreement are independent of and
separable from each other. If any provision hereof shall for any reason be held invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability
of any other provision hereof, but this Guaranty Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.



     21. Counterparts. This Guaranty Agreement may be executed in any number of
counterparts each of which when so executed and delivered shall be deemed an original, and it shall
not be necessary in making proof of this Guaranty Agreement to produce or account for
more than one such counterpart executed by the Guarantors against whom enforcement is sought.
Without limiting the foregoing provisions of this Section 21, the provisions of Section
10.10 of the Credit Agreement shall be applicable to this Guaranty Agreement.



     22. Termination. Subject to reinstatement pursuant to Section 13 hereof, this
Guaranty Agreement and each Guaranty Joinder Agreement, and all of the Guarantors’ Obligations
hereunder (excluding those Guarantors’ obligations relating to Guaranteed Liabilities that
expressly survive such termination) shall terminate on the Facility Termination Date.



Form of Guaranty Agreement





F-9









 








     23. Remedies Cumulative; Late Payments. All remedies hereunder are cumulative and are
not exclusive of any other rights and remedies of the Administrative Agent or any other Beneficiary
provided by law or under the Credit Agreement, the other Loan Documents or other applicable
agreements or instruments. The making of the Loans and other credit extensions pursuant to the
Credit Agreement and other Related Agreements shall be conclusively presumed to have been made or
extended, respectively, in reliance upon each Guarantor’s guaranty of the Guaranteed Liabilities
pursuant to the terms hereof. Any amounts not paid when due under this Guaranty Agreement shall
bear interest at the Default Rate.



     24. Notices. Any notice required or permitted hereunder or under any Guaranty Joinder
Agreement shall be given, (a) with respect to each Guarantor, at the address of the Borrower
indicated in Schedule 10.02 of the Credit Agreement and (b) with respect to the
Administrative Agent or any other Beneficiary, at the Administrative Agent’s address indicated in
Schedule 10.02 of the Credit Agreement. All such addresses may be modified, and all such
notices shall be given and shall be effective, as provided in Section 10.02 of the Credit
Agreement for the giving and effectiveness of notices and modifications of addresses thereunder.



     25. Joinder. Each Person who shall at any time execute and deliver to the
Administrative Agent a Guaranty Joinder Agreement substantially in the form attached as Exhibit A
hereto shall thereupon irrevocably, absolutely and unconditionally become a party hereto and
obligated hereunder as a Guarantor, and all references herein and in the other Loan Documents to
the Guarantors or to the parties to this Guaranty Agreement shall be deemed to include such Person
as a Guarantor hereunder.



     26. Governing Law; Venue; Waiver of Jury Trial.



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



     (b) SUBMISSION TO JURISDICTION. EACH GUARANTOR HERETO IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NORTH CAROLINA SITTING IN MECKLENBURG COUNTY AND OF THE
UNITED STATES DISTRICT COURT OF THE WESTERN DISTRICT OF NORTH CAROLINA, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY
AGREEMENT OR ANY GUARANTY JOINDER AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND
EACH GUARANTOR HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NORTH CAROLINA STATE COURT OR, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH GUARANTOR HERETO AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS GUARANTY AGREEMENT OR IN ANY GUARANTY JOINDER AGREEMENT



Form of Guaranty Agreement







F-10









 







SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY AGREEMENT OR ANY
GUARANTY JOINDER AGREEMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.




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



     (d) SERVICE OF PROCESS. EACH GUARANTOR HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 24. NOTHING IN THIS GUARANTY
AGREEMENT WILL AFFECT THE RIGHT OF ANY GUARANTOR HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW.



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



[Signature page follows.]




Form of Guaranty Agreement









F-11









 








     IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Guaranty
Agreement as of the day and year first written above.



	 	 	 	 	 
	 	GUARANTORS:

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ADMINISTRATIVE AGENT:



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

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Form of Guaranty Agreement





F-12











 





EXHIBIT A




Form of Guaranty Joinder Agreement




GUARANTY JOINDER AGREEMENT



     THIS GUARANTY JOINDER AGREEMENT (the “Guaranty Joinder Agreement”), dated as of
                    ,
20___ is made by                                         , a                  
    (the
“Joining Guarantor”), delivered to BANK OF AMERICA, N.A., in its capacity as
Administrative Agent (the “Administrative Agent”) under that certain Credit Agreement (as
amended, revised, modified, supplemented or amended and restated from time to time, the “Credit
Agreement”), dated as of April 25, 2006, by and among PIEDMONT NATURAL GAS COMPANY, INC. (the
“Borrower”), the Lenders party thereto and the Administrative Agent. All capitalized terms not
otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.



     WHEREAS, the Joining Guarantor is a Subsidiary that is a Regulated Entity and required by the
terms of the Credit Agreement to become a “Guarantor” under the Credit Agreement and be
joined as a party to the Guaranty; and



     WHEREAS, the Joining Guarantor will materially benefit directly and indirectly from the credit
facilities made available and to be made available to the Borrower by the Lenders under the Credit
Agreement; and



     NOW, THEREFORE, the Joining Guarantor hereby agrees as follows with the Administrative Agent,
for the benefit of the Beneficiaries (as defined in the Guaranty and including any Lender or
Affiliate of any Lender party to any Related Credit Arrangement):



     1. Joinder. The Joining Guarantor hereby irrevocably, absolutely and unconditionally
becomes a party to the Guaranty as a Guarantor and bound by all the terms, conditions, obligations,
liabilities and undertakings of each Guarantor or to which each Guarantor is subject thereunder,
including without limitation the joint and several, unconditional, absolute, continuing and
irrevocable guarantee to the Administrative Agent for the benefit of the Beneficiaries of the
payment and performance in full of the Guaranteed Liabilities (as defined in the Guaranty) whether
now existing or hereafter arising, all with the same force and effect as if the Joining Guarantor
were a signatory to the Guaranty.



     2. Affirmations. The Joining Guarantor hereby acknowledges and reaffirms as of the
date hereof with respect to itself, its properties and its affairs each of the waivers,
representations, warranties, acknowledgements and certifications applicable to any Guarantor
contained in the Guaranty.



     3. Severability. The provisions of this Guaranty Joinder Agreement are independent of
and separable from each other. If any provision hereof shall for any reason be held invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability
of any other provision hereof, but this Guaranty Joinder Agreement shall be construed as if such
invalid or unenforceable provision had never been contained herein.



Form of Guaranty Agreement




F-14









 








     4. Counterparts. This Guaranty Joinder Agreement may be executed in any number of
counterparts each of which when so executed and delivered shall be deemed an original, and it shall
not be necessary in making proof of this Guaranty Joinder Agreement to produce or account for more
than one such counterpart executed by the Joining Guarantor. Without limiting the foregoing
provisions of this Section 4, the provisions of Section 10.02(b) of the Credit
Agreement shall be applicable to this Guaranty Joinder Agreement.



     5. Delivery. Joining Guarantor hereby irrevocably waives notice of acceptance of this
Guaranty Joinder Agreement and acknowledges that the Guaranteed Liabilities are and shall be deemed
to be incurred, and credit extensions under the Loan Documents and the Related Credit Arrangements
made and maintained, in reliance on this Guaranty Joinder Agreement and the Guarantor’s joinder as
a party to the Guaranty as herein provided.



     6. Governing Law; Venue; Waiver of Jury Trial. The provisions of Section 26
of the Guaranty are hereby incorporated by reference as if fully set forth herein.



     IN WITNESS WHEREOF, the Joining Guarantor has duly executed and delivered this Guaranty
Joinder Agreement as of the day and year first written above.



	 	 	 	 	 
	 	JOINING GUARANTOR:



	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Form of Guaranty Agreement





F-15









 








EXHIBIT G




OPINION
MATTERS


See attached.




Opinion Matters



G-1









 












	 	 	 

	 

	 	Moore & Van Allen PLLC

Attorneys at Law
	 
	 	 
	April 25, 2006

	 	Suite 4700

100 North Tryon Street

Charlotte, NC 28202-4003
	 
	 	 
	 

	 	T 704 331 1000

F 704 331 1159

www.mvalaw.com





To Those on the Attached Distribution List





	 	Re:	 	Credit Agreement in favor of Piedmont Natural Gas Company, Inc.




Ladies and Gentlemen:




     We have acted as special counsel to Piedmont Natural Gas Company, Inc., a North Carolina
corporation (the “Borrower”), in connection with that certain Credit Agreement dated as of April
25, 2006 (the “Credit Agreement”), by and among the Borrower; Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer; and each lender from time to time party
thereto (the “Lenders”). Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreement. For purposes of rendering our opinion
set forth herein, we have reviewed originals or copies, certified or otherwise identified to our
satisfaction, of the following documents, each of which (unless otherwise noted) is dated as of the
date hereof:




	 	1.	 	the Credit Agreement;
	 
	 	2.	 	Note in favor of Bank of America, N.A.;
	 
	 	3.	 	Note in favor of Branch Banking and Trust Company;
	 
	 	4.	 	Note in favor of SunTrust Bank;
	 
	 	5.	 	Note in favor of U.S. Bank National Association;
	 
	 	6.	 	Note in favor of AmSouth Bank;
	 
	 	7.	 	Note in favor of The Bank of New York;
	 
	 	8.	 	Note in favor of Citibank, N.A.; and
	 
	 	9.	 	Note in favor of Wachovia Bank, National Association.






	 	 	 

	 

	 	Raleigh, NC

Durham, NC
Charleston, SC




 









 











April 25, 2006

Page 2




     The Credit Agreement and the Notes are individually referred to herein as a “Loan Document” and
collectively as the “Loan Documents”. As to various questions of fact material to our opinion, we
have relied upon, and assumed without independent investigation the accuracy of, the
representations made by the parties to the Loan Documents (other than those which are expressed as
our opinions).



     In addition, for purposes of giving this opinion, we have examined such corporate records of the
Borrower, certificates of public officials, certificates of appropriate officers and officials of
the Borrower and such other documents, and have made such inquiries, as we have deemed appropriate.



     In rendering the opinions expressed herein, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as conformed or photostatic copies and the authenticity of the
originals of such copies. For the purposes of the opinions hereinafter expressed, we have further
assumed: (i) the legal capacity of all natural persons executing any Loan Document; (ii) that there
are no oral or written statements or agreements, course of performance after the date hereof
between any parties to the Loan Documents, course of dealing between any parties to the Loan
Documents or usage of trade that modify, amend or vary any of the terms of any Loan Document; (iii)
that, as to factual matters, any certificate, representation or other document upon which we have
relied and which was given or dated earlier than the date of this opinion letter, continues to
remain accurate, insofar as relevant to the opinions contained herein, from such earlier date
through and including the date hereof; (iv) that there has been no mutual mistake of fact between
any parties to the Loan Documents, or misrepresentation, fraud or deceit on the part of any party
to the Loan Documents in connection with the execution, delivery, performance under, or
transactions contemplated by, the Loan Documents; (v) all parties to the Loan Documents are in good
standing and validly existing under the laws of their respective jurisdictions of organization;
(vi) due authorization, execution and delivery of the Loan Documents by all parties thereto; (vii)
that each of the parties to the Loan Documents has the power and authority to execute and deliver
the Loan Documents to which it is a party and to perform its respective obligations thereunder;
(viii) that each Loan Document is valid, binding and enforceable against all parties thereto other
than the Borrower; (ix) that the execution and delivery by the Borrower of the Loan Documents and
the performance by the Borrower of its obligations thereunder will not violate or result in a
breach of any of the terms, conditions or provisions of (A) any law or regulation (other than any
law or regulation of the State of North Carolina or federal law or regulation of the United States,
in each case excepting any law or regulation that has not been excepted from this opinion letter
pursuant to the next following paragraph and the enumerated items thereafter), (B) any order, writ,
judgment, injunction, or decree of any court, governmental authority or arbitrator, or (C) any
agreement, document or instrument to which any such party is a party, by which it or its property
is bound, or to which it is subject; and (x) that all parties to the Loan Documents are in material
compliance with all



 









 





April 25, 2006

Page 3




applicable laws, rules and regulations governing the conduct of their business with respect to the
transactions contemplated by the Loan Documents.



     The opinions set forth herein are limited to matters governed by the laws of the State of North
Carolina and the federal laws of the United States, and no opinion is expressed herein as to the
laws of any other jurisdiction. We express no opinion concerning any matter respecting or affected
by any laws other than laws that a lawyer admitted to practice law in the State of North Carolina
exercising customary professional diligence would reasonably recognize as being directly applicable
to the Borrower or the transactions contemplated in the Loan Documents. Without limiting the
generality of the foregoing, we express no opinion concerning the following legal issues or the
application of any such laws or regulations to the matters on which our opinions are referenced:




	 	(i)	 	federal and state securities laws and regulations;
	 
	 	(ii)	 	except as set forth in paragraph 3 hereof, Federal Reserve Board margin regulations;
	 
	 	(iii)	 	pension and employee benefit laws and regulations;
	 
	 	(iv)	 	federal and state antitrust and unfair competition laws and regulations;
	 
	 	(v)	 	compliance with fiduciary duty requirements;
	 
	 	(vi)	 	the statutes, administrative decisions, and rules and regulations of county, municipal and
special political subdivisions, whether state-level, regional or otherwise;
	 
	 	(vii)	 	federal and state laws and regulations concerning the condition of title to any property;
	 
	 	(viii)	 	fraudulent transfer laws;
	 
	 	(ix)	 	federal and state environmental laws and regulations;
	 
	 	(x)	 	federal and state tax laws and regulations;
	 
	 	(xi)	 	federal and state land use and subdivision laws and regulations;
	 
	 	(xii)	 	the priority of any lien purported to be created by the Loan Documents; or




 









 











April 25, 2006

Page 4





	 	(xiii)	 	laws, rules and regulations relating to money laundering and terrorist groups (including any
requirements imposed under the USA PATRIOT Act of 2001, as amended).





     Based upon the foregoing, and such legal considerations as we have deemed necessary and subject to
the assumptions and qualifications set forth herein, we are of the opinion that:



     1. Each of the Loan Documents constitutes a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms.



     2. Based solely upon the factual certifications in the officer’s certificate attached as Exhibit A
hereto, the Borrower is not an “investment company” within the meaning of the Investment Company
Act of 1940, as amended.



     3. Assuming the Borrower complies with the provisions of the Credit Agreement relating to the use
of proceeds of the Loans, the making of the Loans under the Credit Agreement does not violate
Regulation T, U or X of the Board of Governors of the Federal Reserve System.



     4. Under federal laws, rules and regulations of the United States of America and the laws, rules
and regulations of the State of North Carolina, no consent, approval, authorization, declaration or
filing by or with any governmental authority, commission, board or agency is required for the
execution, delivery and performance of the Loan Documents that has not been obtained or made as of
the date hereof.



     Our opinions concerning the enforceability of the Loan Documents are subject to the following
qualifications:



     (a) Enforcement of the Loan Documents may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratoria or similar state or federal debtor relief laws from time to time
in effect and which affect the enforcement of creditors’ rights in general.



     (b) Enforcement of the Loan Documents is subject both to general principles of equity and to
considerations of public policy, including the requirement that the parties thereto act with
commercial reasonableness and in good faith to the extent required by applicable law, the
application of which may deny certain rights and may be applied by a court of proper jurisdiction,
regardless of whether such enforceability is considered in a proceeding in equity or at law. For
purposes of this paragraph, the terms “general principles of equity” and “considerations of public
policy” may include, but are not limited to, issues related to the right to or obligation of the
appointment of a receiver in certain circumstances; the ability of an entity to appoint an
attorney-in-fact; fiduciary obligations of attorneys-in-fact; the enforceability of usury savings
clauses; waiver of procedural, substantive, or constitutional rights, including, without
limitation, the right of statutory or equitable redemption; disclaimers or limitations of
liability;



 









 





April 25, 2006

Page 5



waiver of defenses; waiver of acceleration rights through historical acceptance of late payments;
the exercise of self-help or other remedies without judicial process; accounting for rent or sale
proceeds; requirements of mitigation of damages; and enforcement of default interest provisions.
Any provision waiving a right to jury trial is unenforceable as against public policy pursuant to
North Carolina General Statutes Section 22B-l0.




     (c) The enforceability and availability of certain remedies, rights and waiver provisions, may be
limited or rendered ineffective by applicable law; provided, that subject to the other exceptions
noted herein, there exist legally adequate remedies for the realization of the principal benefits
intended to be afforded under the Loan Documents.



     (d) We express no opinion on the enforceability of any provision in a Loan Document purporting to
prohibit, restrict or condition the assignment of rights under such Loan Document to the extent
such restriction on assignability is rendered ineffective by Section 9-408 of the Uniform
Commercial Code.



     (e) We express no opinion with respect to any provision of the Loan Documents providing that the
acceptance by the Agent or any Lender of a past due installment or other performance by a party
shall not be deemed a waiver of its right to accelerate any payment obligation or other rights
under the Loan Documents.



     (f) We express no opinion with respect to any provision of the Loan Documents purporting to require
a party to pay or reimburse attorneys’ fees incurred by another party or to indemnify another party
therefor which may be limited by applicable law and public policy.



     (g) We express no opinion with respect to any waiver of the statute of limitations contained in the
Loan Documents.



     (h) We express no opinion with respect to any provision of the Loan Documents which requires that
any amendments or waivers to the Loan Documents must be in writing.



     (i) We express no opinion as to the enforceability of any provision in the Loan Documents that
purports to excuse a party for liability for its own acts.



     (j) We express no opinion as to the enforceability of any provision in the Loan Documents that
purports to make void any act done in contravention thereof.



     (k) We express no opinion as to the enforceability of any provision in the Loan Documents that
purports to authorize a party to act in its sole discretion, that imposes liquidated damages,
penalties, late payment charges or forfeiture or that relates to evidentiary standards or other
standards by which any of the Loan Documents is to be construed.



 









 





April 25, 2006

Page 6




     (1) We express no opinion as to the enforceability of provisions of the Loan Documents providing
for the indemnification of or contribution to a party with respect to such party’s own negligence
or willful misconduct, or where such indemnification or contribution is contrary to public policy.



     (m) Provisions, if any, in the Loan Documents to the effect that waiver by a party of performance
obligations by another party shall not be deemed a waiver of such party’s right thereafter to cause
the applicable document to be in default may not be enforceable in all circumstances, unless such
party shall (i) first provide written notice to the other party that subsequent defaults will not
be accepted and will result in a default under the Loan Documents, and (ii) thereafter, timely and
diligently pursue its default remedies under the Loan Documents. We express no opinion on the
enforceability of any provision of the Loan Documents to the extent that such provision constitutes
a waiver of illegality as a defense to performance of contract obligations.



     (n) We express no opinion with respect to any consent to venue, jurisdiction or service of process
provisions or any waiver of an objection that an action or proceeding has been brought in an
inconvenient forum.



     (o) We express no opinion with respect to any severability provisions.



     (p) We express no opinion with respect to any provision waiving the obligation to marshal assets.



     (q) We express no opinion with respect to any provision of any Loan Document to the extent it
authorizes or permits any affiliate of a Lender or any purchaser of a participation interest to
set-off or apply any deposit, property or indebtedness.



     (r) North Carolina General Statutes Section 6-21.2 sets forth the procedures and limitations
applicable to the collection of attorneys’ fees and accordingly, any provisions in the Loan
Documents related to the ability of the Lenders or any other party to collect attorneys’ fees upon
default are subject to those limitations.



     Our opinions contained herein are rendered solely in connection with the transactions contemplated
under the Loan Documents and may not be relied upon in any manner by any Person other than the
addressees hereof, any successor or assignee of any addressee (including successive assignees) and
any Person who shall acquire a participation interest in the interest of any Lender (collectively,
the “Reliance Parties”), or by any Reliance Party for any other purpose. Our opinions herein shall
not be quoted or otherwise included, summarized or referred to in any publication or document, in
whole or in part, for any purpose whatsoever, or furnished to any Person other than a Reliance
Party (or a Person considering whether to become a Reliance Party), except as may be required of
any Reliance Party by applicable law or regulation or in



 









 




April 25, 2006 

Page 7



accordance with any auditing or oversight function or request of regulatory agencies to which a
Reliance Party is subject. The opinions expressed in this opinion letter are rendered as of the
date hereof and we express no opinion as to circumstances or events or change in applicable law
that may occur subsequent to such date.




	 	 	 	 	 
	 	Very truly yours,

 	 
	  	MOORE & VAN ALLEN PLLC
 	 
	 	 	 	 
	 	/s/ MOORE & VAN ALLEN PLLC	 



 









 






	 	 	 	 	 



Distribution List




Bank of America, N.A.,

  as Administrative Agent, Swing Line Lender, L/C Issuer and a Lender




Branch Banking and Trust Company,

  as a Lender




SunTrust Bank,

  as a Lender




U.S. Bank National Association,

  as a Lender




AmSouth Bank,

  as a Lender




The Bank of New York,

  as a Lender




Citibank, N.A.,

  as a Lender




Wachovia Bank, National Association,

  as a Lender





 











 





EXHIBIT A




OFFICER’S CERTIFICATE



OF



PIEDMONT NATURAL GAS COMPANY, NC.



FOR



OPINION OF MOORE & VAN ALLEN PLLC



     I, Robert O. Pritchard, hereby certify that I am the duly elected, qualified and acting Treasurer
of Piedmont Natural Gas Company, Inc., a North Carolina corporation (“Borrower”), and do hereby
certify:



     1. As Treasurer of the Borrower, I am familiar with the business and affairs of the Borrower and
with the proceedings taken in connection with Credit Agreement dated
as of April 25, 2006 (the
“Credit Agreement”), by and among the Borrower, Bank of America, NA, as administrative agent, swing
line lender and 1/c issuer thereunder and each lender from time to time party thereto. Capitalized
terms used herein and not otherwise defined herein shall have the respective meanings assigned to
them in the Credit Agreement. I have either personal knowledge of the matters and things
hereinbelow set forth or have obtained information with respect thereto from officers and employees
of the Borrower in whom I have confidence and whose duties require them to have personal knowledge
thereof.



     2. I am familiar with the terms of the Credit Agreement and each of the other documents entered
into in connection with the transactions contemplated therein (the “Transaction Documents”) and
make this certificate with the intent that it shall be relied upon by Moore & Van Allen PLLC as a
basis for its opinion to be rendered with respect to the transactions contemplated by the
Transaction Documents.



     3. The Borrower is not an entity which (a) is or holds itself out as being engaged primarily, or
proposes to engage primarily, in the business of investing, reinvesting, or trading in securities;
(b) is engaged or proposes to engage in the business of issuing face-amount certificates of the
installment type, or has been engaged in such business and has any such certificate outstanding; or
(c) is engaged or proposes to engage in the business of investing, reinvesting, owning, holding, or
trading in securities, and owns or proposes to acquire investment securities having a value
exceeding forty percent (40%) of the value of the Borrower’s total assets (exclusive of government
securities and cash items) on an unconsolidated basis.



[Remainder of Page Intentionally Left Blank]





 









 








     IN WITNESS WHEREOF, the undersigned has executed this Officer’s Certificate this 25th day of April,
2006.



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Robert O. Pritchard
 	 
	 	 	Name:  	Robert O. Pritchard 	 
	 	 	Title:  	Treasurer 	 



 









 






	 	 	 	 	 



Piedmont Natural Gas Company, Inc.




	 	 	 

	Martin C. Ruegsegger, Esquire

	 	4720 Piedmont Row Drive
	Vice President, Corporate Counsel & Secretary

	 	Charlotte, North Carolina 28210
	 

	 	Telephone: 704-731-4202
	 

	 	Facsimile: 704-731-4086
	 

	 	Electronic Mail: marty.ruegsegger@piedmontng.com
	 
	 	 
	 

	 	April 25, 2006





To Those on the Attached Distribution List




     Re: Credit Agreement in favor of Piedmont Natural Gas Company, Inc.


Ladies and Gentlemen:




     I am Vice President, Corporate Counsel and Secretary of Piedmont Natural Gas Company, Inc., a North
Carolina corporation (the “Borrower”), in connection with that certain Credit Agreement dated as of
April 25, 2006 (the “Credit Agreement”), by and among the Borrower; Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer; and each lender from time to time party
thereto (the “Lenders”). Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreement. For purposes of rendering my opinion
set forth herein, I have reviewed originals or copies, certified or otherwise identified to my
satisfaction, of the following documents, each of which (unless otherwise noted) is dated as of the
date hereof:




	 	1.	 	the Credit Agreement;
	 
	 	2.	 	Note in favor of Bank of America, N.A.;
	 
	 	3.	 	Note in favor of Branch Banking and Trust Company;
	 
	 	4.	 	Note in favor of SunTrust Bank;
	 
	 	5.	 	Note in favor of U.S. Bank National Association;
	 
	 	6.	 	Note in favor of AmSouth Bank;
	 
	 	7.	 	Note in favor of The Bank of New York;
	 
	 	8.	 	Note in favor of Citibank, N.A.; and
	 
	 	9.	 	Note in favor of Wachovia Bank, National Association.





     The Credit Agreement and the Notes are individually referred to herein as a “Loan Document” and
collectively as the “Loan Documents”. As to various questions of



 









 





April 25, 2006

Page 2



fact material to my opinion, I have relied upon, and assumed without independent investigation the
accuracy of, the representations made by the parties to the Loan Documents (other than those which
are expressed as my opinions).




     In addition, for purposes of giving this opinion, I have examined such corporate records of the
Borrower, certificates of public officials, certificates of appropriate officers and officials of
the Borrower and such other documents, and have made such inquiries, as I have deemed appropriate.



     In rendering the opinions expressed herein, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals, the conformity to original documents of
all documents submitted to me as conformed or photostatic copies and the authenticity of the
originals of such copies. For the purposes of the opinions
hereinafter expressed, I  have further
assumed that, as to factual matters, any certificate, representation or other document upon which I
have relied and which was given or dated earlier than the date of this opinion letter, continues to
remain accurate, insofar as relevant to the opinions contained herein, from such earlier date
through and including the date hereof.



     The opinions set forth herein are limited to matters governed by the laws of the State of North
Carolina and the federal laws of the United States, and no opinion is expressed herein as to the
laws of any other jurisdiction. Without limiting the generality of the foregoing, I express no
opinion concerning the following legal issues or the application of any such laws or regulations to
the matters on which my opinions are referenced:




	 	(i)	 	federal and state securities laws and regulations;
	 
	 	(ii)	 	Federal Reserve Board margin regulations;
	 
	 	(iii)	 	pension and employee benefit laws and regulations;
	 
	 	(iv)	 	federal and state antitrust and unfair competition laws and regulations;
	 
	 	(v)	 	compliance with fiduciary duty requirements;
	 
	 	(vi)	 	the statutes, administrative decisions, and rules and regulations of county, municipal and
special political subdivisions, whether state-level, regional or otherwise;
	 
	 	(vii)	 	federal and state laws and regulations concerning the condition of title to any property;




 









 











April 25, 2006

Page 3





	 	(viii)	 	fraudulent transfer laws;
	 
	 	(ix)	 	federal and state environmental laws and regulations;
	 
	 	(x)	 	federal and state tax laws and regulations;
	 
	 	(xi)	 	federal and state land use and subdivision laws and regulations;
	 
	 	(xii)	 	the priority of any lien purported to be created by the Loan Documents; or
	 
	 	(xiii)	 	laws, rules and regulations relating to money laundering and terrorist groups (including any
requirements imposed under the USA PATRIOT Act of 2001, as amended).





     Based upon the foregoing, and such legal considerations as I have deemed necessary and subject to
the assumptions and qualifications set forth herein, I am of the opinion that:



     1. Based solely on a certificate from the Secretary of State of North Carolina dated as of April
11, 2006, the Borrower is a corporation validly existing under the laws of the State of North
Carolina.



     2. The Borrower has all necessary corporate power to execute and deliver the Loan Documents and to
perform its obligations thereunder. The Loan Documents have been duly executed and delivered by the
Borrower.



     3. The execution and delivery by the Borrower of the Loan Documents and the performance by the
Borrower of its obligations thereunder (a) have been duly authorized by all requisite corporate
action on the part of the Borrower, (b) do not violate the articles of incorporation or bylaws of
the Borrower, (c) do not violate any federal law, rule or regulation of the United States of
America or any law, rule or regulation of the State of North Carolina and (d) do not result in a
breach of or a default under any document identified as a material contract and listed as an
exhibit to the Borrower’s Annual Report on Form 10-K for the fiscal year ended October 31, 2005 or
on Current Report on Form 8-K filed March 3, 2006.



     4. Based
solely upon the factual certifications in the officer’s certificate attached as Exhibit A
hereto, the Borrower is not subject to regulation under Sections 1264 and 1265 of the Energy Policy
Act of 2005, Public Law No. 109-58.



 









 





April 25, 2006

Page 4




     5. To my knowledge, no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or overtly threatened in writing by or against the Borrower or
any of its properties or revenues (a) with respect to any of the Loan Documents or (b) which could
reasonably be expected to have a Material Adverse Effect. The phrase “to my knowledge” means my
conscious awareness. The foregoing opinion means that I am without knowledge, or conscious
awareness that the foregoing confirmation is untrue.



     Our opinions contained herein are rendered solely in connection with the transactions contemplated
under the Loan Documents and may not be relied upon in any manner by any Person other than the
addressees hereof, any successor or assignee of any addressee (including successive assignees) and
any Person who shall acquire a participation interest in the interest of any Lender (collectively,
the “Reliance Parties”), or by any Reliance Party for any other purpose. Our opinions herein shall
not be quoted or otherwise included, summarized or referred to in any publication or document, in
whole or in part, for any purpose whatsoever, or furnished to any Person other than a Reliance
Party (or a Person considering whether to become a Reliance Party), except as may be required of
any Reliance Party by applicable law or regulation or in accordance with any auditing or oversight
function or request of regulatory agencies to which a Reliance Party is subject. The opinions
expressed in this opinion letter are rendered as of the date hereof and I express no opinion as to
circumstances or events or change in applicable law that may occur subsequent to such date.



	 	 	 	 	 
	 	Sincerely,

 	 
	 	/s/
Martin C. Ruegsegger
 	 
	 	Martin C. Ruegsegger 	 
	 	 	 



 









 






	 	 	 	 	 



Distribution List




Bank of America, N.A.,

  as Administrative Agent, Swing Line Lender, L/C Issuer and a Lender




Branch Banking and Trust Company,

  as a Lender




SunTrust Bank,

  as a Lender




U.S. Bank National Association,

  as a Lender




AmSouth Bank,

  as a Lender




The Bank of New York,

  as a Lender




Citibank, N.A.,

  as a Lender




Wachovia Bank, National Association,

  as a Lender