Exhibit 4.01


 




 





$650,000,000


 


REVOLVING CREDIT AGREEMENT


 


Dated as of August 11, 2005


 


among


 


EQUITABLE RESOURCES, INC.,

as the Borrower,


 


BANK OF AMERICA, N.A.,

as Administrative Agent and an L/C Issuer,


 


JPMORGAN CHASE BANK, N.A.


as Syndication Agent and an L/C Issuer,


 


THE BANK OF TOKYO MITSUBISIHI, LTD.,


CITIBANK, N.A., 


and PNC BANK, NATIONAL ASSOCIATION


as Co-Documentation Agents


 


and


 


The Other Lenders Party Hereto


 


BANC OF AMERICA SECURITIES LLC,


and


J.P. MORGAN SECURITIES INC.,


as


Joint Lead Arrangers and Co-Book Managers




 





 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I.
  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  
	
  1.01

  	
  Defined Terms

  	
   

  
	
  1.02

  	
  Other Interpretive
  Provisions

  	
   

  
	
  1.03

  	
  Accounting Terms

  	
   

  
	
  1.04

  	
  Rounding

  	
   

  
	
  1.05

  	
  References to
  Agreements and Laws

  	
   

  
	
  1.06

  	
  Times of Day

  	
   

  
	
  1.07

  	
  Letter of Credit
  Amounts

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II. THE
  COMMITMENTS AND BORROWINGS

  	
   

  
	
  2.01

  	
  Loans

  	
   

  
	
  2.02

  	
  Borrowings,
  Conversions and Continuations of Loans

  	
   

  
	
  2.03

  	
  Letters of Credit

  	
   

  
	
  2.04

  	
  Swing Line Loans

  	
   

  
	
  2.05

  	
  Prepayments

  	
   

  
	
  2.06

  	
  Termination or
  Reduction of Commitments

  	
   

  
	
  2.07

  	
  Repayment of Loans

  	
   

  
	
  2.08

  	
  Interest

  	
   

  
	
  2.09

  	
  Fees

  	
   

  
	
  2.10

  	
  Computation of
  Interest and Fees

  	
   

  
	
  2.11

  	
  Evidence of Debt

  	
   

  
	
  2.12

  	
  Payments Generally

  	
   

  
	
  2.13

  	
  Sharing of Payments

  	
   

  
	
  2.14

  	
  Extension of Stated
  Maturity Date

  	
   

  
	
  2.15

  	
  Increase in
  Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.
  TAXES, YIELD PROTECTION AND ILLEGALITY

  	
   

  
	
  3.01

  	
  Taxes

  	
   

  
	
  3.02

  	
  Illegality

  	
   

  
	
  3.03

  	
  Inability to
  Determine Rates

  	
   

  
	
  3.04

  	
  Increased Cost and
  Reduced Return; Capital Adequacy

  	
   

  
	
  3.05

  	
  Funding Losses

  	
   

  
	
  3.06

  	
  Matters Applicable to
  all Requests for Compensation

  	
   

  
	
  3.07

  	
  Survival

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.
  CONDITIONS PRECEDENT TO CLOSING DATE AND TO CREDIT EXTENSIONS

  	
   

  
	
  4.01

  	
  Conditions of Closing
  Date and Initial Credit Extension

  	
   

  
	
  4.02

  	
  Conditions to all
  Credit Extensions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
  5.01

  	
  Corporate Existence
  and Power

  	
   

  
	
  5.02

  	
  Corporate and Governmental
  Authorization; No Contravention

  	
   

  
	
  5.03

  	
  Binding Effect

  	
   

  
	
  5.04

  	
  Financial Information

  	
   

  
	
  5.05

  	
  Litigation

  	
   

  
	
  5.06

  	
  No Default

  	
   

  
	
  5.07

  	
  Compliance with ERISA

  	
   

  
	
  5.08

  	
  Environmental Matters

  	
   

  
	
  5.09

  	
  Taxes

  	
   

  
	
  5.10

  	
  Subsidiaries

  	
   

  
	
  5.11

  	
  Regulatory
  Restrictions on Borrowing; Margin Regulations

  	
   

  



 


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  5.12

  	
  Full Disclosure

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.
  AFFIRMATIVE COVENANTS

  	
   

  
	
  6.01

  	
  Information

  	
   

  
	
  6.02

  	
  Payment of Obligations

  	
   

  
	
  6.03

  	
  Maintenance of
  Property; Insurance

  	
   

  
	
  6.04

  	
  Conduct of Business
  and Maintenance of Existence

  	
   

  
	
  6.05

  	
  Compliance with Laws

  	
   

  
	
  6.06

  	
  Inspection of
  Property, Books and Records

  	
   

  
	
  6.07

  	
  Use of Proceeds

  	
   

  
	
  6.08

  	
  Governmental
  Approvals and Filings

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.
  NEGATIVE COVENANTS

  	
   

  
	
  7.01

  	
  Liens

  	
   

  
	
  7.02

  	
  Debt to Total Capital

  	
   

  
	
  7.03

  	
  Transactions with
  Affiliates

  	
   

  
	
  7.04

  	
  Limitation of Other
  Restrictions on Dividends by Subsidiaries, etc

  	
   

  
	
  7.05

  	
  Mergers and Sales of
  Assets

  	
   

  
	
  7.06

  	
  Change in Nature of
  Business

  	
   

  
	
  7.07

  	
  Use of Proceeds

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.
  EVENTS OF DEFAULT AND REMEDIES

  	
   

  
	
  8.01

  	
  Events of Default

  	
   

  
	
  8.02

  	
  Remedies Upon Event of Default

  	
   

  
	
  8.03

  	
  Application of Funds

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.
  ADMINISTRATIVE AGENT

  	
   

  
	
  9.01

  	
  Appointment and
  Authorization of Administrative Agent

  	
   

  
	
  9.02

  	
  Rights as a Lender

  	
   

  
	
  9.03

  	
  Exculpatory
  Provisions

  	
   

  
	
  9.04

  	
  Reliance by
  Administrative Agent

  	
   

  
	
  9.05

  	
  Indemnification of
  Administrative Agent

  	
   

  
	
  9.06

  	
  Delegation of Duties

  	
   

  
	
  9.07

  	
  Resignation of
  Administrative Agent

  	
   

  
	
  9.08

  	
  Non-Reliance on
  Administrative Agent and Other Lenders

  	
   

  
	
  9.09

  	
  No Other Duties, Etc

  	
   

  
	
  9.10

  	
  Administrative Agent May File
  Proofs of Claim

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.
  MISCELLANEOUS

  	
   

  
	
  10.01

  	
  Amendments, Etc.

  	
   

  
	
  10.02

  	
  Notices;
  Effectiveness; Electronic Communication

  	
   

  
	
  10.03

  	
  No Waiver;
  Cumulative Remedies

  	
   

  
	
  10.04

  	
  Attorney Costs,
  Expenses and Taxes

  	
   

  
	
  10.05

  	
  Indemnification by
  the Borrower

  	
   

  
	
  10.06

  	
  Payments Set Aside

  	
   

  
	
  10.07

  	
  Successors and
  Assigns

  	
   

  
	
  10.08

  	
  Confidentiality

  	
   

  
	
  10.09

  	
  Set-off

  	
   

  
	
  10.10

  	
  Interest Rate
  Limitation

  	
   

  
	
  10.11

  	
  Counterparts

  	
   

  
	
  10.12

  	
  Integration

  	
   

  
	
  10.13

  	
  Survival of
  Representations and Warranties

  	
   

  
	
  10.14

  	
  Severability

  	
   

  
	
  10.15

  	
  Tax Forms

  	
   

  
	
  10.16

  	
  Replacement of
  Lenders

  	
   

  



 


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  10.17

  	
  Governing Law

  	
   

  
	
  10.18

  	
  Waiver of Right to
  Trial by Jury

  	
   

  
	
  10.19

  	
  USA PATRIOT Act
  Notice

  	
   

  
	
  10.20

  	
  Termination of
  Commitments Under Existing Credit Agreement

  	
   

  
	
  10.21

  	
  ENTIRE AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
   

  



 


 


iii





















 


	
  SCHEDULES

  
	
   

  
	
  2.01

  	
  Commitments and Pro Rata Shares

  	
   

  
	
  10.02

  	
  Administrative Agent’s Office, Certain Addresses for
  Notices

  	
   

  
	
  10.07

  	
  Processing and Recordation Fees

  	
   

  
	
   

  
	
  EXHIBITS

  
	
   

  
	
   

  	
  Form of

  	
   

  
	
   

  	
   

  	
   

  
	
  A-1

  	
  Committed
  Loan Notice

  	
   

  
	
  A-2

  	
  Swing
  Line Loan Notice

  	
   

  
	
  B

  	
  Note

  	
   

  
	
  C

  	
  Compliance
  Certificate

  	
   

  
	
  D

  	
  Assignment
  and Assumption

  	
   

  
	
  E-1

  	
  Opinion
  of Reed Smith LLP

  	
   

  
	
  E-2

  	
  Opinion
  of In-House Counsel for the Borrower

  	
   

  



 


 


iv





















 


CREDIT AGREEMENT


 


This REVOLVING CREDIT
AGREEMENT (“Agreement”) is entered into as of August 11, 2005,
among EQUITABLE RESOURCES, INC., a Pennsylvania corporation (the “Borrower”), each lender from time to time
party hereto (collectively, the “Lenders” and individually, a “Lender”),
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender, and an L/C
Issuer, and JPMORGAN CHASE BANK, N.A., as Syndication Agent and an 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 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. “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.


 


“Agent-Related Persons”  means the Administrative Agent,
together with its Affiliates (including, in the case of Bank of America in its
capacity as the Administrative Agent, Bank of America Securities LLC), and the
officers, directors, employees, agents and attorneys-in-fact of such Persons
and Affiliates.


 


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


 


“Agreement” means
this Credit Agreement.


 


“ANPI” means
Appalachian NPI, LLC a Delaware limited liability company.


 


“ANPI Obligations”
means obligations with respect to the 7.76% Senior Secured Bonds due February 28,
2016 of ANPI, with respect to the related swap transaction between ANPI and
Credit Suisse First Boston International and with respect to the ownership
interests in Appalachian Natural Gas Trust, in each case under documentation in
place as of the date of this Agreement, with such changes in such documentation
as, in the reasonable opinion of the Administrative Agent, do not adversely
affect the interest of the Lenders.


 





















 


“ANPI Transaction”
means the transaction pursuant to which the ANPI Obligations were incurred.


 


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


 


Applicable Rate


 


	
  Pricing

  Level

  	
   

  	
  Debt Ratings

  S&P/Moody’s

  	
   

  	
  Facility

  Fee

  	
   

  	
  Utilization

  Fee

  	
   

  	
  Eurodollar

  Rate

  	
   

  	
  Letters

  of

  Credit

  	
   

  	
  Base

  Rate

  	
   

  
	
  1

  	
   

  	
  A+/A1 or better

  	
   

  	
  6.0

  	
   

  	
  5.0

  	
   

  	
  19.0

  	
   

  	
  19.0

  	
   

  	
  0.0

  	
   

  
	
  2

  	
   

  	
  A/A2

  	
   

  	
  7.5

  	
   

  	
  5.0

  	
   

  	
  22.5

  	
   

  	
  22.5

  	
   

  	
  0.0

  	
   

  
	
  3

  	
   

  	
  A-/A3

  	
   

  	
  8.5

  	
   

  	
  5.0

  	
   

  	
  26.5

  	
   

  	
  26.5

  	
   

  	
  0.0

  	
   

  
	
  4

  	
   

  	
  BBB+/Baa1

  	
   

  	
  10.5

  	
   

  	
  5.0

  	
   

  	
  34.5

  	
   

  	
  34.5

  	
   

  	
  0.0

  	
   

  
	
  5

  	
   

  	
  BBB/Baa2

  	
   

  	
  12.5

  	
   

  	
  5.0

  	
   

  	
  42.5

  	
   

  	
  42.5

  	
   

  	
  0.0

  	
   

  
	
  6

  	
   

  	
  BBB-/Baa3 or
  worse

  	
   

  	
  15.0

  	
   

  	
  5.0

  	
   

  	
  55.0

  	
   

  	
  55.0

  	
   

  	
  0.0

  	
   

  



 


“Debt
Rating” means, as of any date of determination, the rating as determined by either S&P or Moody’s (collectively, the “Debt
Ratings”) of the Borrower’s non-credit-enhanced, senior unsecured long-term
debt; provided that if a Debt Rating is issued by each of the foregoing
rating agencies, then the higher of such Debt Ratings shall apply (with the
Debt Rating for Pricing Level 1 being the highest and the Debt Rating for
Pricing Level 6 being the lowest), unless there is a split in Debt Ratings of
more than one level, in which case the Pricing Level that is one level higher
than the Pricing Level of the lower Debt Rating shall apply; and provided
further that if no Debt Rating is issued by either S&P or Moody’s,
then such rating agency shall be deemed to have established a rating of Pricing
Level 6.


 


Initially,
the Applicable Rate shall be determined based upon the Debt Rating specified in
the certificate delivered pursuant to Section 4.01(a)(vi). 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”
has the meaning specified in Section 10.07(h). 


 


“Arranger” means
each of Banc of America Securities LLC and J.P. Morgan Securities, Inc.,
in their capacity as co-lead arrangers and co-book managers.


 


“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 substantially in the form of
Exhibit D.


 


“Attorney Costs”
means and includes all fees, expenses and disbursements of any law firm or
other external counsel and, without duplication, the allocated cost of internal
legal services and all expenses and disbursements of internal counsel.


 


“Audited Financial
Statements” means the audited consolidated balance sheet of the Borrower
and its Subsidiaries for the fiscal year ended December 31, 2004 and the
related consolidated statements 


 


2





















 


of
income or operations, shareholders’ equity and cash flows for such fiscal year
of the Borrower and its Subsidiaries, including the notes thereto.


 


“Authorizations”
means all filings, recordings, and registrations with, and all validations or
exemptions, approvals, orders, authorizations, consents, franchises, licenses,
certificates, and permits from, any Governmental Authority.


 


“Availability Period”
means the period from and including the Closing Date to the Maturity Date.


 


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


 


“Base Rate Loan”
means a Loan that bears interest based on
the Base Rate. All Base Rate Loans shall be denominated in Dollars. 


 


“Benefit Arrangement”
means, at any time, an employee benefit plan within the meaning of Section 3(3) of
ERISA which is not a Plan or a Multiemployer Plan and which is maintained or
otherwise contributed to by any member of the ERISA Group.


 


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


 


“Borrower Materials”
has the meaning specified in Section 6.01.


 


“Borrowing” means
a Committed 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 banks in the London interbank
eurodollar market. 


 


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


 


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


 


(a)                                  any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, but excluding any employee benefit plan of
such person or its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such plan)
becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under
the Securities Exchange Act of 1934, except that a person or group shall be
deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire (such right, an “option right”), whether
such right is exercisable immediately or only after the 


 


3





















 


passage of time), directly or indirectly, of 33-1/3% or more of the
equity securities of such Person entitled to vote for members of the board of
directors or equivalent governing body of such Person on a fully-diluted basis
(and taking into account all such securities that such person or group has the
right to acquire pursuant to any option right); or


 


(b)                                 during
any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of such Person cease to be
composed of individuals (i) who were members of that board or equivalent
governing body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals 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 4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive
the applicable payment).


 


“Code” means the
Internal Revenue Code of 1986.


 


“Commitment”
means, as to each Lender, its obligation to (a) make Committed 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 applicable, as such amount may be adjusted from time to time
in accordance with this Agreement.


 


“Committed Borrowing”
means a Borrowing consisting of simultaneous Committed 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.


 


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


 


“Committed Loan Notice”
means a notice of (a) a Borrowing of Committed Loans, (b) a
conversion of Committed Loans from one Type to the other, or (c) a continuation
of Eurodollar Rate Loans, pursuant to Section 2.02(a), which shall
be substantially in the form of Exhibit A-1. 


 


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


 


“Consolidated
Debt” means, as of any date of determination, the Debt of the Borrower and
its Subsidiaries on a consolidated basis other than Non-Recourse Debt.


 


“Consolidated
Subsidiaries” means, at any date, any Subsidiary or other entity, the
accounts of which would be consolidated with those of the Borrower in its
consolidated financial statements if such statements were prepared as of such
date.


 


4





















 


“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” has the
meaning specified in the definition of “Affiliate.”


 


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


 


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


 


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


 


(b)                                 all
non-contingent obligations (and, for purposes of Section 8.01(e) and
the definitions of Material Debt and Material Financial Obligations, all
contingent obligations) of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments;


 


(c)                                  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);


 


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


 


(e)                                  capital
leases; 


 


(f)                                    to
the extent required to be included on the Borrower’s consolidated balance sheet
as debt or liabilities in accordance with GAAP, Synthetic Lease Obligations;


 


(g)                                 all
obligations of such Person for the payment of money under Production Payments;
and


 


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


 


For all purposes hereof,
the Debt of the Borrower shall include the Debt 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 any Subsidiary of the Borrower is a
general partner or a joint venturer, unless such Debt is expressly made
non-recourse to the Borrower or Subsidiary, as applicable.


 


“Debt Rating” has
the meaning set forth 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 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.


 


5





















 


“Default Rate”
means an interest rate equal to (a) the Base Rate plus (b) the
Applicable Rate, if any, applicable to Base Rate Loans plus (c) 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, in each case to the fullest extent permitted by applicable Laws.


 


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


 


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


 


“Domestic” means
organized under the laws of any state of the United States.


 


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


 


“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 or any of its 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 Substances, (c) exposure to any Hazardous Substances, (d) the
release or threatened release of any Hazardous Substances 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.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute.


 


“ERISA
Group” means the Borrower, any Subsidiary and all members of a controlled
group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal Revenue Code.


 


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


 


6





















 


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


 


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


 


“Excluded Subsidiary”
means at any time a Subsidiary which is not a Material Subsidiary, and is
organized solely for the purpose of holding, directly or indirectly, an
ownership interest in one entity or property (or related entities or
properties), does not engage in any business unrelated to such entity(ies) or
property(ies) or the financing thereof and does not have any assets or
indebtedness other than those related to its interest in such entity(ies) or
property(ies) or the financing thereof and which shall have been identified as
an Excluded Subsidiary at or prior to such time by notice from the Borrower to
the Lenders.


 


“Existing Credit
Agreement” means that certain Revolving Credit Agreement dated as of October 30,
2003 among the Borrower, Bank of America, N.A., as administrative agent and
letter of credit issuer, and the other agents and lenders therein named, as
amended.


 


“Existing Lenders”
means the lenders who are parties to the Existing Credit Agreement.


 


“Federal Funds Rate”  means, for any day, the rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank on the
Business Day next succeeding such day; provided that (a) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so published
on such next succeeding Business Day, the Federal Funds Rate for such day shall
be the average rate (rounded 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 Letters”
means the letter agreement, dated July 8, 2005 among the Borrower, the
Administrative Agent and Banc of America Securities LLC and the letter
agreement, dated July 8, 2005 among the Borrower and J.P. Morgan
Securities, Inc.


 


“Foreign Lender”
has the meaning specified in Section 10.15(a)(i). 


 


“Forward
Sale” means an obligation to deliver oil, gas or other minerals to be
acquired or produced in the future in consideration of advance payment
therefor.


 


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


 


“Fund” has the
meaning specified in Section 10.07(h).


 


“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 any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body,
court, administrative 


 


7





















 


tribunal,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.


 


“Granting Lender”
has the meaning specified in Section 10.07(i).


 


“Guarantee” means,
as to any Person, any (a) any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any Debt 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 Debt or other obligation, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the obligee in respect of such Debt or other obligation of the payment or
performance of such Debt 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 Debt or other obligation, or (iv) entered into
for the purpose of assuring in any other manner the obligee in respect of such
Debt 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 Debt or other obligation of any
other Person, whether or not such Debt or other obligation is assumed by such
Person. 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.


 


“Hazardous Substances”
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.


 


“Indemnified
Liabilities” has the meaning set forth in Section 10.05.


 


“Indemnitees” has
the meaning set forth in Section 10.05.


 


“Information” has
the meaning set forth in Section 10.08.


 


“Interest Payment Date”
means, (a) as to any Loan other than a Base Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds
three months, the respective dates that fall every three months after the
beginning of such Interest Period shall also be Interest Payment Dates; and (b) as
to any Base Rate Loan (including a Swing Line Loan), the last Business Day of
each March, June, September and December and the 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, three or six months thereafter, as
selected by the Borrower in its 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 


 


8





















 


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.


 


“IRS” means the
United States Internal Revenue Service.


 


“ISP” has the
meaning set forth in Section 2.03(h).


 


“JPM” means
JPMorgan Chase Bank, N.A., and its successors.


 


“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
whether or not 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 Pro Rata Share.


 


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


 


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


 


“L/C Issuer” means
either Bank of America or JPM in its capacity as an issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder; provided
however, that the commitment of each of Bank of America and JPM to issue
Letters of Credit hereunder shall be limited to an aggregate maximum amount for
all such Letters of Credit issued by Bank of America or JPM, as applicable,
that is equal to the lesser of (i) $325,000,000, and (ii) 50% of the
Aggregate Commitments as determined at the time of any proposed issuance of a
Letter of Credit. As used herein, the term “the L/C Issuer” shall mean “each
L/C Issuer” or  “the applicable L/C
Issuer,” as the context may require.


 


“L/C Obligations”
means, as at any date of determination, the aggregate undrawn amount of 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 1.07. 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 L/C Issuer and 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 standby letter of credit issued hereunder.


 


9





















 


“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 seven days prior to the Stated
Maturity Date then in effect (or, if such day is not a Business Day, the next
preceding Business Day).


 


“Letter of Credit
Sublimit” means an amount equal to $650,000,000, as such amount may be
reduced pursuant to Section 2.06. The Letter of Credit Sublimit is
part of, and not in addition to, the Aggregate Commitments.


 


“Lien” means any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), charge, or preference, priority or other security
interest or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, 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 Committed Loan or a Swing Line Loan.


 


“Loan Documents”
means this Agreement, each Note, and the Fee Letters. 


 


“Material Debt”
means Debt (other than (i) Non-Recourse Debt and (ii) the Loans) of
the Borrower and one or more Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal or face amount exceeding
$50,000,000.


 


“Material Financial
Obligations” means (i) a principal or face amount of Debt, (ii) payment
or collateralization obligations in respect of Swap Contracts, or (iii) payment
obligations in respect of Forward Sales, in each case of the Borrower or any of
its Subsidiaries, arising in one or more related or unrelated transactions,
exceeding in the aggregate $50,000,000.


 


“Material Plan”
means, at any time, a Plan or Plans having aggregate Unfunded Liabilities in
excess of $50,000,000.


 


“Material Subsidiary”
means any Subsidiary of Borrower for which (i) its assets and the assets
of its consolidated Subsidiaries comprise more than 5% of the assets of the
Borrower and its consolidated Subsidiaries, or (ii) its revenue and the
revenue of its consolidated Subsidiaries comprise more than 5% of the revenue
of the Borrower and its consolidated Subsidiaries, in each case determined on a
consolidated basis in accordance with GAAP as of the end of the most recent
fiscal year.


 


“Maturity Date”
means the earlier of (a) the Stated Maturity Date and (b) the
effective date of any other termination, cancellation, or acceleration of all
Commitments under this Agreement.


 


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


 


“Multiemployer
Plan” means, at any time, an employee pension benefit plan within the
meaning of Section 4001(a)(3) of
ERISA to which any member of the ERISA Group is then making or accruing an
obligation to make contributions, or has within the preceding five plan years
made contributions, including for these purposes any Person which ceased to be
a member of the ERISA Group during such five year period.


 


“Non-Recourse Debt”
of any Person means Debt secured by a Lien on one or more assets of such
Person, where the rights and remedies of the holder of such Debt in respect of
such Debt do not extend to any other assets of such Person and, if such Person
is organized under the laws of or doing business in the 


 


10





















 


United
States or any political subdivision thereof or therein, as to which such holder
has effectively waived (or subordinated in favor of the Lenders) such holder’s
right to make the election provided under 11 U.S.C. § 1111(b)(1)(A) (a
“Recourse Waiver”); provided however, that no Recourse Waiver shall be
required with respect to Production Payments, and no Recourse Waiver shall be
required with respect to the ANPI Obligations. Debt of an Excluded Subsidiary
which is without recourse to the Borrower or any other Subsidiary shall be
deemed Non-Recourse Debt of such Excluded Subsidiary secured by all assets of
such Excluded Subsidiary (whether or not such Debt is in fact so secured) and
no Recourse Waiver shall be required in respect thereof. For purposes of this
definition, the holders of ANPI Obligations which are Debt of a Person shall be
deemed to have a Lien (to the extent permitted by Section 7.01(j)
hereof) on assets of such Person securing such ANPI Obligations.


 


“NORESCO” shall
mean NORESCO LLC, a Delaware limited liability company and a wholly-owned
subsidiary of the Borrower.


 


“NORESCO Project”
shall mean any project of NORESCO or of a Subsidiary of NORESCO related to the
development, design, construction and operation of energy plant facilities.


 


“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 B.


 


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


 


“Outstanding Amount”
means (i) with respect to Committed Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of such Committed Loans occurring on such date; (ii) with
respect to Swing Line Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or
repayments of such Swing Line Loans occurring on such date; and (iii) with
respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements of outstanding unpaid
drawings under any Letters of Credit or any reductions in the maximum amount
available for drawing under Letters of Credit taking effect on such date.


 


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


 


“PBGC” means the
Pension Benefit Guaranty Corporation or any entity succeeding to any or all of
its functions under ERISA.


 


11





















 


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


 


“Plan” means at any time an employee pension benefit
plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412
of the Internal Revenue code and either (i) is maintained, or contributed
to, by any member of the ERISA Group for employees of any member of the ERISA
Group or (ii) has at any time within the preceding five years been
maintained, or contributed to, by any Person which was at such time a member of
the ERISA Group for employees of any Person which was at such time a member of
the ERISA Group.


 


“Platform” has the
meaning set forth in Section 6.01.


 


“Production Payment”
means an assignment of an interest in a fixed quantity (measured by proceeds or
by volume) of oil and gas or other hydrocarbons when produced from a specified
oil and gas property or properties, in consideration for a payment in advance
of production.


 


“Pro Rata Share”
means, with respect to each Lender at any time, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the amount of the Commitment of such Lender at such time and the denominator of
which is the amount of the Aggregate Commitments at such time; provided
that 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,
then the Pro Rata Share of each Lender shall be determined based on the Pro
Rata Share of such Lender immediately prior to such termination and after
giving effect to any subsequent assignments made pursuant to the terms hereof. The
initial Pro Rata Share of each Lender is set forth opposite the name of such
Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.


 


“PUC” means any
state or local regulatory agency or governmental authority that exercises
jurisdiction over the rates, services, ownership, capital structure, authority
to borrow, operation or production of electricity, oil, gas or hydrocarbons, or
over Persons who own, construct, or operate facilities or systems that produce,
transport, process, or market electricity, oil, gas, or hydrocarbons.


 


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


 


“Request for Credit
Extension” means (a) with respect to a Borrowing, conversion or
continuation of Committed Loans, a Committed 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 at least 51% 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 at least 51% 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).


 


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


 


12





















 


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


 


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


 


“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.


 


“SPC” has the
meaning specified in Section 10.07(i).


 


“Stated Maturity Date”
means August 9, 2006; provided, however, if the Stated
Maturity Date is extended pursuant to Section 2.14, the latest date
that the Stated Maturity Date has been extended pursuant to such Section.


 


“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.


 


“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 A-2.


 


“Swing Line Sublimit”
means an amount equal to the lesser of (a) $25,000,000 and (b) the
Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition
to, the Aggregate Commitments. 


 


13





















 


“Synthetic Lease
Obligation” means 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). 


 


“Total Capital”
means, at any date, the sum of (i) Consolidated Debt plus (ii) Shareholders’
Equity (including for this purpose any amount attributable to stock which is
required to be redeemed or is redeemable at the option of the holder, if
certain events or conditions occur or exist or otherwise), in each case
determined at such date less (iii) to the extent reflected in
Shareholders’ Equity, any excess of the net book value of assets subject to
Liens securing Non-Recourse Debt (including the total assets of Excluded
Subsidiaries) over the amount of the related Non-Recourse Debt less (iv) net
unrealized gains resulting from Swap Contracts as determined in accordance with
GAAP plus (v) net unrealized losses resulting from Swap Contracts
as determined in accordance with GAAP.


 


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


 


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


 


“Unfunded
Liabilities” means, with respect to any Plan at any time, the amount (if
any) by which (i) the value of all benefit liabilities under such Plan,
determined on a plan termination basis using the assumptions prescribed by the
PBGC for purposes of Section 4044
of ERISA, exceeds (ii) the fair market value of all Plan assets allocable
to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contributions), all determined as of the then most recent valuation date
for such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA.


 


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


 


“Unreimbursed Amount”
has the meaning set forth 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
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.


 


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


 


(ii)                                  Article,
Section, Exhibit and Schedule references are to the Loan Document in
which such reference appears.


 


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


 


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


 


14





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE II.


THE COMMITMENTS AND BORROWINGS


 


2.01                        Committed Loans. Subject to
the terms and conditions set forth herein, each Lender severally agrees to make
loans (each such loan, a “Committed 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


 


15





















 


outstanding
the amount of such Lender’s Commitment; provided, however, that
after giving effect to any Borrowing, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding
Amount of the Committed Loans of any Lender, plus such Lender’s Pro Rata
Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Pro Rata Share 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. Committed Loans may be Base Rate
Loans or Eurodollar Rate Loans, as further provided herein.


 


2.02                        Borrowings, Conversions and
Continuations of Committed Loans.


 


(a)                                  Each
Borrowing, each conversion of Committed Loans from one Type to the other, and
each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s
delivery to the Administrative Agent of an irrevocable written Committed Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower, which may be delivered via facsimile. Each such notice must be
received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Committed Loans, and (ii) on the requested date of any
Borrowing of Base Rate Committed Loans. Each Borrowing of, conversion or
continuation of Committed Loans shall be in a principal amount of $5,000,000 or
a whole multiple of $1,000,000 in excess thereof. Each Committed Loan Notice
shall specify (i) whether the Borrower is requesting a Borrowing, a
conversion of Committed 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 Committed Loans to be borrowed, converted or
continued, (iv) the Type of Committed Loans to be borrowed or to which
existing Committed 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 Committed Loan in a Committed Loan Notice or if the Borrower
fails to give a timely notice requesting a conversion or continuation, then the
applicable Committed Loans shall be made as, or converted to, Base Rate
Committed Loans. Any such automatic conversion to Base Rate Committed 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 Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.


 


(b)                                 Following
receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Pro Rata Share of the applicable
Committed 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 Base Rate Loans described in the
preceding subsection. Each Lender shall make the amount of its Committed 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 Committed 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 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 Committed
Loan Notice with respect to such Borrowing is given by the Borrower, there are
L/C Borrowings outstanding, then the proceeds of such Borrowing shall be
applied, first, to the payment in full of any such L/C Borrowings and second,
to the Borrower as provided above.


 


(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


 


16





















 


of a
Default, no Loans may be requested as, converted to or continued as Eurodollar
Rate Loans without the consent of the Required Lenders.


 


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


 


(e)                                  After
giving effect to all Borrowings, all conversions of Committed Loans from one
Type to the other, and all continuations of Committed Loans as the same Type,
there shall not be more than five Interest Periods in effect with respect to
Committed 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 other 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, and to amend or renew Letters of Credit
previously issued by it, in accordance with subsection (b) below, and
(2) to honor drafts under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the account of
the Borrower; provided that the L/C Issuer shall not be obligated to
make any L/C Credit Extension with respect to any Letter of Credit, and no
Lender shall be obligated to participate in any Letter of Credit if as of the
date of such L/C Credit Extension, (x) the Total Outstandings would exceed the
Aggregate Commitments, (y) the aggregate Outstanding Amount of the Committed
Loans of any Lender, plus such Lender’s Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata
Share of the Outstanding Amount of all Swing Line Loans would exceed such
Lender’s Commitment, or (z) the Outstanding Amount of the L/C Obligations would
exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject
to the terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed.


 


(ii)                                  The
L/C Issuer shall be under no obligation to issue any Letter of Credit and, in
the case of clauses (B) and (C) below shall not 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; 


 


17





















 


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


 


(C)                                the
expiry date of such requested Letter of Credit would occur (1) after the
Letter of Credit Expiration Date, unless all the Lenders have approved such
expiry date, or (2) after any Stated Maturity Date applicable to any
Declining Lender (as defined in Section 2.14(b)), unless the amount
of such Letter of Credit together with all other L/C Obligations outstanding on
the date of issuance of such Letter of Credit is equal to or less than the
aggregate Commitments of all Lenders who shall remain parties to this Agreement
subsequent to the Stated Maturity Date that immediately precedes the expiry
date of such Letter of Credit;


 


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


 


(E)                                 such
Letter of Credit is (1) in an initial amount less than $500,000, (2) is
to be denominated in a currency other than Dollars, or (3) is to be issued
for a purpose other than to support surety bonds (including appeal bonds),
worker’s compensation requirements and other general corporate purposes.


 


(iii)                               The
L/C Issuer shall not 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 any of Sections 2.03(a)(ii)(B), (C) or (E)(2) or
(3), or (B) the beneficiary of such Letter of Credit does not
accept the proposed amendment to such Letter of Credit.


 


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



 


(i)                                     Each
Letter of Credit shall be issued or amended, as the case may be, upon the request
of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed
and signed by a Responsible Officer of the Borrower. Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m. at least two Business Days (or such later date and
time as the L/C Issuer may agree in a particular instance in its sole
discretion) prior to the proposed issuance date or date of amendment, as the
case may be. In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name 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.


 


(ii)                                  Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from the Borrower and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof. Upon receipt by the L/C Issuer of confirmation from
the Administrative Agent that the requested issuance or amendment is permitted
in accordance with the terms hereof, then, subject to the terms and conditions
hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit
for the account of the


 


18





















 


Borrower or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer’s usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the L/C Issuer a risk participation in such Letter of Credit in
an amount equal to the product of such Lender’s Pro Rata Share times the amount
of such Letter of Credit.


 


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


 


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


 


(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 Pro Rata Share thereof. In such event, the Borrower shall be deemed to
have requested a Committed Borrowing of Base Rate Loans to be disbursed on the
Honor Date in an amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.02 for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized portion
of the Aggregate Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Committed 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.


 


19





















 


(ii)                                  Each
Lender (including the Lender acting as L/C Issuer) shall upon any notice
pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the Administrative
Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed
Amount not later than 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 Base
Rate Committed 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 Committed
Borrowing of Base 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 Committed Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Pro Rata Share of such amount shall be
solely for the account of the L/C Issuer.


 


(v)                                 Each
Lender’s obligation to make Committed Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the L/C Issuer, the Borrower
or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however,
that each Lender’s obligation to make Committed 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 Committed 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 Federal Funds Rate from time
to time in effect. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.


 


(d)                                 Repayment
of Participations.


 


(i)                                     At
any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such
payment in accordance with Section 2.03(c), if the Administrative
Agent receives for the account of the L/C Issuer any payment in respect of the
related Unreimbursed Amount or interest thereon (whether


 


20





















 


directly from the Borrower or otherwise, including proceeds of Cash
Collateral (as defined in Section 2.03(g)) applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such Lender
its Pro Rata Share thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender’s L/C Advance
was outstanding) in the same funds as those received by the Administrative
Agent.


 


(ii)                                  If
any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the account
of the L/C Issuer its Pro Rata Share thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such
amount is returned by such Lender, at a rate per annum equal to the Federal
Funds Rate from time to time in effect.


 


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


 


(i)                                     any
lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other agreement or instrument relating thereto;


 


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


 


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


 


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


 


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


 


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


 


21





















 


(f)                                    Role
of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility
to obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as to
the validity or accuracy of any such document or the authority of the Person
executing or delivering any such document. None of the L/C Issuer, any
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of the L/C Issuer shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Application. The Borrower hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, 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, any Agent-Related Person, any
Lender, nor any of the respective correspondents, participants or assignees of
the L/C Issuer, shall be liable or responsible to the Borrower 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 Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Borrower shall immediately
Cash Collateralize the then Outstanding Amount of all L/C Obligations (in an
amount equal to such Outstanding Amount determined as of the date of such L/C
Borrowing or the Letter of Credit Expiration Date, as the case may be). For
purposes hereof, “Cash Collateralize” means to pledge and deposit with
or deliver to the Administrative Agent, for the benefit of the L/C Issuer and
the Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented
to by the Lenders). Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing. Cash collateral
shall be maintained in blocked, non-interest bearing deposit accounts at Bank
of America.


 


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


 


(i)                                     Letter
of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share a Letter of Credit
fee for each Letter of Credit equal to the Applicable Rate times the daily
maximum amount available to be drawn under such Letter of Credit (whether or
not such maximum amount is then in effect under such Letter of Credit).


 


22





















 


Such
Letter of Credit fees shall be computed on a quarterly basis in arrears. Such
Letter of Credit fees shall be 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. If there is any
change in the Applicable Rate during any quarter, the daily maximum amount of
each Letter of Credit shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect.


 


(j)                                     Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting
fee with respect to each Letter of Credit in the amounts and at the times
specified in the Fee Letter. 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 on demand and
are nonrefundable.


 


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


 


2.04                        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 Pro Rata Share of the
Outstanding Amount of Committed 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 Committed Loans of any Lender, plus
such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Pro Rata Share 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 Base 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 Pro Rata Share 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


 


23





















 


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 amount of its Swing Line Loan
available to the Borrower.


 


(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 Base Rate
Committed Loan in an amount equal to such Lender’s Pro Rata Share 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 Committed Loan Notice for
purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
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
Committed Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Pro Rata
Share of the amount specified in such Committed Loan Notice available to the
Administrative Agent in Same Day Funds for the account of the Swing Line Lender
at the Administrative Agent’s Office for Dollar-denominated payments not later
than 1:00 p.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Lender that so
makes funds available shall be deemed to have made a Base Rate Committed 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 Committed
Borrowing in accordance with Section 2.04(c)(i), the request for
Base Rate Committed 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. A
certificate 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 Committed 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


 


24





















 


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 Committed 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
Pro Rata Share of such payment (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender’s risk participation
was funded) 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 Pro Rata
Share thereof on demand of the Administrative Agent, plus interest thereon from
the date of such demand to the date such amount is returned, 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 Base Rate Committed Loan or risk participation pursuant
to this Section 2.04 to refinance such Lender’s Pro Rata Share of
any Swing Line Loan, interest in respect of such Pro Rata Share 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 Committed 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 a.m. (A) three Business
Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on
the date of prepayment of Base Rate Committed Loans; (ii) any prepayment
of Eurodollar Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof, and (iii) any prepayment of Base
Rate Committed 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 Committed Loans to be
prepaid. The Administrative Agent will promptly notify each Lender of its
receipt of each such notice, and of the amount of such Lender’s Pro Rata Share
of such prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein. Any prepayment of a Eurodollar
Rate Loan shall be accompanied by all accrued interest thereon, together with
any additional amounts required pursuant to Section 3.05. Each such
prepayment shall be applied to the Committed Loans of the Lenders in accordance
with their respective Pro Rata Shares.


 


25





















 


(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. Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the Company, the Company 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(b) 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. three
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
Letter of Credit Sublimit or such Swing Line 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 be
applied to the Commitment of each Lender according to its Pro Rata Share. All
facility and utilization 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 Committed 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 Swing Line 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 Base Rate
Committed Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate and (iii) 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 Base Rate plus the Applicable Rate.


 


(b)                                 If
any amount payable by the Borrower under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at stated maturity,
by acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the


 


26





















 


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


 


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


 


2.09                        Fees.


 


(a)                                  Facility
Fee. The Borrower shall pay to the Administrative Agent for the account of
each Lender in accordance with its Pro Rata Share, a facility fee equal to the
Applicable Rate times the actual daily amount of the Aggregate
Commitments (or, if the Aggregate Commitments have terminated, on the
Outstanding Amount of all Committed Loans, Swing Line Loans, and L/C
Obligations), regardless of usage. The facility fee shall accrue at all times
during the Availability Period (and thereafter so long as any Committed Loans,
Swing Line Loans, or L/C Obligations remain outstanding), including at any time
during which one or more of the conditions in Article IV is not
met, and shall be due and payable quarterly in arrears on the last Business Day
of each March, June, September and December, commencing with the first
such date to occur after the Closing Date, and on the Maturity Date (and, if
applicable, thereafter on demand). The facility 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)                                 Utilization
Fee. The Borrower shall pay to the Administrative Agent for the account of
each Lender in accordance with its Pro Rata Share, a utilization fee equal to
the Applicable Rate times the Total Outstandings on each day that the
Total Outstandings exceed 50% of the actual daily amount of the Aggregate
Commitments. The utilization fee shall be due and payable quarterly in arrears
on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the
Maturity Date. The utilization fee shall be calculated quarterly in arrears and
if there is any change in the Applicable Rate during any quarter, the daily
amount shall be computed and multiplied by the Applicable Rate for each period
during which such Applicable Rate was in effect. The utilization fee shall
accrue at all times, including at any time during which one or more of the
conditions in Article IV is not met.


 


(c)                                  Other
Fees.


 


(i) The
Borrower shall pay to each Arranger and the Administrative Agent for their own
respective accounts fees in the amounts and at the times specified in the Fee
Letters. 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 


 


27





















 


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.


 


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 prima  facie
evidence 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 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.


 


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


 


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


 


(c)                                  (i)                                     Unless
the Borrower has notified the Administrative Agent, prior to the date any
payment is required to be made by it to the Administrative Agent or the L/C
Issuer hereunder, that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has timely made such payment
and may (but shall not be so required to), in reliance thereon, make available
a corresponding amount to the Person entitled thereto. If and to the extent
that such payment was not in fact made to the Administrative Agent in
immediately available funds, then each of the Lenders or the L/C Issuer, as the
case may be, shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender or the
L/C Issuer in immediately available funds, together with interest thereon in
respect of each day from and including the date such amount was made available
by the Administrative Agent to such Lender or the L/C Issuer to the date such


 


28





















 


amount
is repaid to the Administrative Agent in immediately available funds 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.


 


(ii)                                  Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any
Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such
Borrowing) that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with Section 2.02
(or, in the case of a Borrowing of Base Rate Loans, that such Lender has made
such share available in accordance with and at the time required by Section 2.02)
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the 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 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 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 Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender’s Committed Loan
included in such 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.


 


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


 


(d)                                 If
any Lender makes available to the Administrative Agent funds for any 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.


 


(e)                                  The
obligations of the Lenders hereunder to make Committed Loans and to fund participations
in Letters of Credit and Swing Line Loans are several and not joint. The
failure of any Lender to make any Committed Loan, to fund any such
participation or to make any payment under Sections 10.4 or 10.5
on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Committed Loan,
purchase its participation or make its payment under Sections 10.4 or 10.5.


 


(f)                                    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. If,
other than as expressly provided elsewhere herein, any Lender shall obtain on
account of the Committed Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder)


 


29





















 


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


 


2.14                        Extension
of Stated Maturity Date.


 


(a)                                  Without further action by or consent from the
Lenders, the Stated Maturity Date shall be extended to August 10, 2010
(or, if such date is not a Eurodollar Business Day, the next preceding
Eurodollar Business Day) if the following requirements are satisfied:  on or before July 10, 2006, the Borrower
shall have provided to the Administrative Agent the following, in form and
substance satisfactory to the Administrative Agent (i) a copy of the
securities certificate registered with the Pennsylvania Public Utility
Commission (the “Securities Certificate”) and of the order of the
Pennsylvania Public Utility Commission approving the Borrower’s incurring
indebtedness hereunder with a maturity date of August 10, 2010, (ii) an
opinion of counsel to the Borrower (which may be internal counsel) stating that
(A) the Securities Certificate has been registered with the Pennsylvania
Public Utility Commission in accordance with Chapter 19 of the Pennsylvania
Public Utility Code and by virtue of such registration, authorizes the Borrower
to incur indebtedness hereunder with a maturity date of August 10, 2010,
and (B) no other Authorizations are required by the Pennsylvania Public
Utility Commission or by the PUC in any other state identified by the Borrower
as being a state in which the Borrower is subject to regulation by a PUC and (iii) copies
of corporate resolutions certified by the Secretary or Assistant Secretary of
the Borrower, or such other evidence as may be satisfactory to the
Administrative Agent, demonstrating that Borrower’s incurrence of indebtedness
hereunder with a maturity date of August 10, 2010 has been duly authorized
by all necessary corporate action, together with an opinion of counsel to the
Borrower (which may be internal counsel) to such effect. The Administrative
Agent shall promptly notify the Lenders when the foregoing conditions have been
satisfied, and the extension shall be effective as of the date of such notice.


 


(b)                                 Not earlier than 60 days prior to, nor
later than 30 days prior to, each of the first two anniversaries of the Closing
Date, the Borrower may, upon notice to the Administrative Agent (who shall
promptly notify the Lenders), request a one year extension of the then current
Stated Maturity Date. Within 15 days of delivery of such notice, each Lender
shall notify the Administrative Agent whether or not it consents to such
extension (which consent may be given or withheld in such Lender’s sole and
absolute discretion). Any Lender not responding within the above time period
shall be deemed not to have consented to such extension. The Administrative
Agent shall promptly notify the Borrower and the


 


30





















 


Lenders
of the Lenders’ responses. If any Lender
declines, or is deemed to have declined, to consent to such extension (a “Declining
Lender”), the Borrower may cause any such Declining Lender to be removed or
replaced as a Lender pursuant to Section 10.16.


 


Only if Lenders holding
at least 51% of the Commitments (calculated prior to giving effect to any
removals and/or replacements of Lenders permitted herein) (the “Consenting
Lenders”) have consented to an extension requested pursuant to this Section 2.14(b),
the Stated Maturity Date shall be extended, with respect only to the Consenting
Lenders and any Lender replacing a Declining Lender pursuant to Section 10.16.
If so extended, the Stated Maturity Date, as to the Consenting Lenders and each
Lender replacing a Declining Lender pursuant to Section 10.16,
shall be extended to the date falling one year after the existing Stated
Maturity Date (except that if such date is not a Business Day, such Stated
Maturity Date, as so extended, shall be the next preceding Business Day); provided,
however, that the pre-existing Stated Maturity Date shall remain in
effect with respect to any Declining Lender that is not replaced. The
Administrative Agent and the Borrower shall promptly confirm to the Lenders
such extension, and the Administrative Agent shall distribute an amended Schedule 2.01
(which shall be deemed incorporated into this Agreement),
to reflect any changes in Lenders and their respective Commitments.


 


As a condition precedent
to such extension, the
Borrower shall have provided to the Administrative Agent the following, in form
and substance satisfactory to the Administrative Agent (i) copies of
corporate resolutions certified by the Secretary or Assistant Secretary of the
Borrower, or such other evidence as may be satisfactory to the Administrative
Agent, demonstrating that Borrower’s incurrence of indebtedness hereunder with
a maturity date of the Stated Maturity Date, as extended pursuant to this Section 2.14(b),
has been duly authorized by all necessary corporate action, together with an
opinion of counsel to the Borrower (which may be internal counsel) to such
effect, (ii) a certificate (in sufficient copies for each Lender),
signed by a Responsible Officer of the Borrower certifying that, (A) before
and after giving effect to such extension, the representations and warranties
contained in Article V (including without limitation the
representation and warranties set forth in Sections 5.04(c) and 5.05)
and the other Loan Documents are true and correct on and as of the date
thereof, 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 2.14(b), the representations and
warranties contained in subsections (a) and (b) of Section 5.04
shall be deemed to refer to the most recent statements furnished pursuant to
subsections (a) and (b), respectively, of Section 6.01,
and (B) no Default or Event of Default exists, (iii) a copy of the securities certificate registered with the
Pennsylvania Public Utility Commission and of the order of the Pennsylvania
Public Utility Commission approving the Borrower’s incurring indebtedness
hereunder with a maturity date of the Stated Maturity Date, as extended
pursuant to this Section 2.14(b), and (iv) an opinion of
counsel to the Borrower (which may be internal counsel) stating that (A) such
securities certificate has been registered with the Pennsylvania Public Utility
Commission in accordance with Chapter 19 of the Pennsylvania Public Utility
Code and by virtue of such registration, authorizes the Borrower to incur
indebtedness hereunder with a maturity date of the Stated Maturity Date, as
extended pursuant to this Section 2.14(b), and (B) no other
Authorizations are required by the Pennsylvania Public Utility Commission or by
the PUC in any other state identified by the Borrower as being a state in which
the Borrower is subject to regulation by a PUC.


 


The
Borrower shall (i) on the existing Stated Maturity Date, prior to or
contemporaneous with giving effect to any extension, pay amounts due, in full,
to any Declining Lender that is not replaced as a Lender pursuant to Section 10.16,
and (ii) prepay any Committed Loans outstanding on the existing Stated
Maturity Date which were made to it (and pay any additional amounts required
pursuant to Section 3.05) to the extent necessary to keep
outstanding Committed Loans ratable with the Pro Rata Shares of all the
Lenders.


 


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2.15                        Increase in Commitments.


 


(a)                                  Provided there exists no Default, upon notice
to the Administrative Agent (which shall promptly notify the Lenders), the
Borrower may on a one-time basis request an increase in the Aggregate
Commitments to an amount not exceeding $1,000,000,000; provided that any
such request for an increase shall be in a minimum amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof. 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). 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 Pro
Rata Share of such requested increase. Any Lender not responding within such
time period shall be deemed to have declined to increase its Commitment. 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, the Borrower may also invite additional Eligible Assignees
to become Lenders pursuant to a joinder agreement in form and substance
satisfactory to the Administrative Agent and its counsel.


 


(b)                                 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. As a condition precedent to such increase, the
Borrower shall have provided to the Administrative Agent the following, in form
and substance satisfactory to the Administrative Agent (i) copies of
corporate resolutions certified by the Secretary or Assistant Secretary of the
Borrower, or such other evidence as may be satisfactory to the Administrative
Agent, demonstrating that Borrower’s incurrence of indebtedness hereunder in
the amount of the Aggregate Commitments as increased pursuant to this Section 2.15
and with a maturity date of the Stated Maturity Date then in effect, has been
duly authorized by all necessary corporate action, together with an opinion of
counsel to the Borrower (which may be internal counsel) to such effect, (ii) a
certificate dated as of the Increase Effective Date (in sufficient copies for
each Lender) signed by a Responsible Officer of the Borrower certifying that,
before and after giving effect to such increase, (A) the representations
and warranties contained in Article V (including without limitation
the representation and warranties set forth in Sections 5.04(c) and
5.05) 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 5.04 shall be deemed to refer to the most recent statements
furnished pursuant to subsections (a) and (b), respectively, of Section 6.01,
and (B) no Default exists, (iii) a copy of the securities certificate
registered with the Pennsylvania Public Utility Commission and the order of the
Pennsylvania Public Utility Commission approving the Borrower’s incurring
indebtedness hereunder in the amount of the Aggregate Commitments as increased
pursuant to this Section 2.15 and with a maturity date of the
Stated Maturity Date then in effect, and (iv) an opinion of counsel to the
Borrower (which may be internal counsel) stating that (A) such securities
certificate has been registered with the Pennsylvania Public Utility Commission
in accordance with Chapter 19 of the Pennsylvania Public Utility Code and by
virtue of such registration, authorizes the Borrower to incur indebtedness
hereunder in the amount of the Aggregate Commitments as increased pursuant to
this Section 2.15 and with a maturity date of the Stated Maturity
Date then in effect, and (B) no other Authorizations are required by the
Pennsylvania Public Utility Commission or by the PUC in any other state
identified by the Borrower as being a state in which the Borrower is subject to
regulation by a PUC; provided, however, that the delivery of the
items set forth in the foregoing clauses  (iii) and (iv) shall
not be required as a condition precedent to such increase in the event that the
Stated Maturity Date has not been extended pursuant to Section 2.14
prior to the Borrower’s request for such increase.


 


The
Borrower shall prepay any Committed Loans outstanding on the Increase Effective
Date (and pay any additional amounts required pursuant to Section 3.05)
to the extent necessary to keep the


 


32





















 


outstanding Committed Loans ratable with any revised
Pro Rata Shares arising from any nonratable increase in the Commitments under
this Section.


 


(c)                                  This Section shall supersede any
provisions in Sections 2.12 or 10.01 to the contrary.


 


ARTICLE III.


TAXES, YIELD PROTECTION AND
ILLEGALITY


 


3.01                        Taxes.


 


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


 


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


 


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


 


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


 


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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, then, on notice thereof
by such Lender to the Borrower through the Administrative Agent, any obligation
of such Lender to make or continue Eurodollar Rate Loans or to convert Base
Rate Committed Loans to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt
of such notice, the Borrower shall, upon demand from such Lender (with a copy
to the Administrative Agent), prepay or, if applicable, convert all Eurodollar
Rate Loans of such Lender to Base Rate Loans, either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.


 


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


 


3.04                        Increased
Cost and Reduced Return; Capital Adequacy.


 


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


 


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


 


34





















 


(c)                                  The
Borrower shall pay to each Lender, as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits, additional interest on the unpaid
principal amount of each Eurodollar Rate Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender in
good faith, which determination shall be conclusive), which shall be due and
payable on each date on which interest is payable on such Loan, provided
the Borrower shall have received at least 15 days’ prior notice (with a copy to
the Administrative Agent) of such additional interest from such Lender. If a
Lender fails to give notice 15 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 15 days from receipt of
such notice. Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Lender to compensation pursuant to
this Section and will designate a different Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Lender, be otherwise disadvantageous to
such Lender.


 


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


 


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


 


(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 on the date or in the amount notified by the Borrower; or


 


(c)                                  any
assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.16;


 


including any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan
(excluding loss of anticipated profits) or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any
customary administrative fees charged by such Lender in connection with the
foregoing.


 


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


 


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


 


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.


 


35





















 


ARTICLE IV.


CONDITIONS PRECEDENT TO CLOSING DATE
AND TO CREDIT EXTENSIONS


 


4.01                        Conditions of Closing Date and
Initial Credit Extension. The obligation of 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 facsimiles (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the Borrower, 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 its legal counsel:


 


(i)                                     executed
counterparts of this Agreement, 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;


 


(iii)                               such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of a Responsible Officer of the Borrower 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
the Borrower is a party;


 


(iv)                              a
certificate of the Pennsylvania Secretary of State evidencing that the Borrower
is duly organized or formed, and is validly existing, in good standing under
the laws of the State of Pennsylvania;


 


(v)                                 a
favorable opinion of Reed Smith LLP, counsel to the Borrower, addressed to the
Administrative Agent and each Lender, as to the matters set forth in Exhibit E-1
and a favorable opinion of the Deputy General Counsel of the Borrower,
addressed to the Administrative Agent and each Lender, as to the matters set
forth in Exhibit E-2; 


 


(vi)                              a
certificate signed by a Responsible Officer of the Borrower certifying (A) that
the representations and warranties of the Borrower contained in Article V
are true and correct on and as of the date hereof, (B) that no Default
exists or would result from the execution of this Credit Agreement, (C) that
there has been no material adverse change since December 31, 2004 in the
business, assets, liabilities (actual or contingent), operations, or condition
(financial or otherwise) of the Borrower and its subsidiaries taken as a whole;
and (D) the current Debt Ratings;


 


(vii)                           evidence
that the Commitments under the Existing Credit Agreement have been or
concurrently with the Closing Date are being terminated, and that the Borrower
has repaid all amounts owed thereunder upon such termination; and


 


(viii)                        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 on or before the Closing Date shall have been paid.


 


(c)                                  Unless
waived by the Administrative Agent, the Borrower shall have paid all Attorney
Costs of the Administrative Agent to the extent invoiced prior to or on the
Closing Date.


 


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4.02                        Conditions to all Credit
Extensions. The obligation of each Lender to honor any Request for Credit
Extension (other than a Committed Loan Notice requesting only a conversion of
Committed 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 contained in Article V
(except the representations and warranties in Sections 5.04(c), 5.05
and 5.06, as to any matter which has theretofore been disclosed in
writing by the Borrower to the Lenders by written notice given to the
Administrative Agent) or in 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 that for purposes of this Section 4.02, the
representations and warranties contained in subsections (a) and (b) of
Section 5.04 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.


 


(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
Extension (other than a Committed Loan Notice requesting only a conversion of
Committed 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.


 


ARTICLE V.


REPRESENTATIONS AND WARRANTIES


 


The Borrower represents
and warrants that:


 


5.01                        Corporate Existence and Power.
The Borrower is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, and has all
corporate powers and all material Authorizations required to carry on its
business as now conducted.


 


5.02                        Corporate and
Governmental Authorization; No Contravention. The
Borrower’s incurrence of Debt hereunder, and the execution, delivery and
performance by the Borrower of this Agreement and the Notes, are within the
corporate powers of the Borrower, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
Governmental Authority (except such as has been obtained), do not contravene,
or constitute a default under, any provision of applicable law or regulation or
of the certificate of incorporation or by-laws of the Borrower or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or any of its Subsidiaries, or result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.


 


5.03                        Binding Effect. This Agreement constitutes
a valid and binding agreement of the Borrower, and each Note, when executed and
delivered in accordance with this Agreement, will constitute a valid and
binding obligation of the Borrower, in each case enforceable in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency or
similar laws of general application relating to the enforcement of creditors’
rights.


 


37





















 


5.04                        Financial Information.


 


(a)                                  The
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of December 31, 2004, and the related consolidated statements of income,
cash flows and changes in stockholders’ equity for the fiscal year then ended,
reported on by Ernst & Young LLP, independent certified public
accountants for the Borrower, and set forth in the Borrower’s 2004 Form 10-K,
a copy of which has been delivered to each of the Lenders, (i) fairly
present, in conformity with GAAP, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such fiscal year, and (ii) show,
to the extent required by GAAP, 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
Debt.


 


(b)                                 The
unaudited consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of June 30, 2005, and the related unaudited consolidated
statements of income and cash flows for the three months then ended, set forth
in the Borrower’s Latest Form 10-Q, a copy of which has been delivered to
each of the Lenders, fairly present, in conformity with GAAP applied on a basis
consistent with the financial statements referred to in subsection (a) of
this Section, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such three month period (subject to normal
year-end adjustments).


 


(c)                                  Since
December 31, 2004 there has been no material adverse change in the
business, financial position or results of operations of the Borrower and its
Consolidated Subsidiaries, considered as a whole.


 


5.05                        Litigation. There is no action, suit, proceeding
or investigation pending against, or, to the knowledge of the Borrower,
threatened against or affecting, the Borrower or any of its Subsidiaries before
any Governmental Authority in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the business,
consolidated financial position or consolidated results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole, or which in
any manner draws into question the validity or enforceability of this Agreement
or the Notes.


 


5.06                        No Default. Neither the
Borrower nor any of its Subsidiaries is in default under or with respect to any
Contractual Obligation which could be reasonably expected to have a material
adverse effect on the business, financial condition, results of operations or
prospects of the Borrower and its Consolidated Subsidiaries, considered as a
whole.


 


5.07                        Compliance with ERISA. Each
member of the ERISA Group has fulfilled its obligations under the minimum
funding standards of ERISA and the Internal Revenue Code with respect to each
Plan and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the
minimum funding standard under Section 412
of the Internal Revenue Code in respect of any Plan, (ii) failed to make
any contribution or payment to any Plan or Multiemployer Plan or in respect of
any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue
Code, or (iii) incurred any liability under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007
of ERISA.


 


5.08                        Environmental Matters. In the ordinary
course of its business, the Borrower conducts an ongoing review of the effect
of Environmental Laws on the business, operations and properties of the
Borrower and its Subsidiaries, in the course of which it identifies and
evaluates associated liabilities and costs (including, without limitation, any
capital or operating expenditures required for clean-up or closure of
properties presently or previously owned, any capital or operating expenditures
required to achieve or maintain compliance with environmental protection
standards imposed by law or as a condition of any


 


38





















 


license,
permit or contract, any related constraints on operating activities, including
any periodic or permanent shutdown of any facility or reduction in the level of
or change in the nature of operations conducted thereat, any costs or
liabilities in connection with off-site disposal of wastes or Hazardous
Substances, and any actual or potential liabilities to third parties, including
employees, and any related costs and expenses). On the basis of this review,
the Borrower has concluded that such associated liabilities and costs,
including the costs of compliance with Environmental Laws, are unlikely to have
a material adverse effect on the business, financial condition, results of
operations or prospects of the Borrower and its Consolidated Subsidiaries,
considered as a whole.


 


5.09                        Taxes. The Borrower and its
Subsidiaries have filed all United States Federal income tax returns and all
other material tax returns which are required to be filed by them, and have
paid all taxes due pursuant to such returns or pursuant to any assessment
received by the Borrower or any Subsidiary (other than those not yet delinquent
and payable without premium or penalty, and except for those being diligently
contested in good faith by appropriate proceedings, and in each case, for which
adequate reserves and provisions for taxes have been made on the books of the
Borrower and each Subsidiary). The charges, accruals and reserves on the books
of the Borrower and its Subsidiaries in respect of taxes or other governmental
charges are, in the opinion of the Borrower, adequate.


 


5.10                        Subsidiaries. Each of the
Borrower’s corporate Subsidiaries is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material governmental
authorizations required to carry on its business as now conducted, except where
the absence of any of the foregoing could not reasonably be expected to have a
material adverse effect on the business, financial condition, results of operations
or prospects of the Borrower and its Consolidated Subsidiaries, considered as a
whole.


 


5.11                        Regulatory Restrictions on
Borrowing; Margin Regulations.


 


(a)                                  None
of the Borrower, any Person Controlling the Borrower, or any Subsidiary is an “investment company” within the meaning of
the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of
the Public Utility Holding Company Act of 1935, as amended.


 


(b)                                 Margin
stock does not constitute more than 25% of the assets of the Borrower and its
Subsidiaries.


 


5.12                        Full Disclosure. No
statement, information, report, representation, or warranty made by the
Borrower in any Loan Document or furnished to the Administrative Agent or any
Lender by or on behalf of the Borrower in connection with any Loan Document
contains any untrue statement of a material fact or omits any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.


 


ARTICLE VI.


AFFIRMATIVE COVENANTS


 


The Borrower agrees that,
so long as any Lender has any Commitment hereunder, any Letter of Credit
remains outstanding or any amount payable hereunder remains unpaid:


 


6.01                        Information.
The Borrower will deliver to each of the Lenders:


 


39





















 


(a)                                  as
soon as available, and in any event within 60 days after the end of each fiscal
year of the Borrower, a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, cash flows and changes in stockholders’
equity for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing
selected by the Borrower, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject
to any “going concern” or like qualification or exception or any qualification
or exception as to the scope of such audit;


 


(b)                                 as
soon as available, and in any event within 35 days after the end of each of the
first three quarters of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of the end
of such quarter and the related consolidated statements of income and cash
flows for such quarter and for the portion of the Borrower’s fiscal year ended
at the end of such quarter, setting forth in the case of such statements of
income and cash flows, in comparative form the figures for the corresponding
quarter and the corresponding portion of the Borrower’s previous fiscal year,
all certified (subject to normal year-end adjustments) as to fairness of
presentation, conformity to GAAP and consistency by the chief financial officer
or the chief accounting officer of the Borrower;


 


(c)                                  simultaneously
with the delivery of each set of financial statements referred to in clauses
(a) and (b) above, a certificate of a Responsible
Officer of the Borrower substantially in the form of the Compliance Certificate
attached hereto;


 


(d)                                 within
five days after any officer of the Borrower obtains actual knowledge of any
Default, if such Default is then continuing, a certificate of a Responsible
Officer of the Borrower setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect thereto;


 


(e)                                  promptly
upon the mailing thereof to the shareholders of the Borrower generally, copies
of all financial statements, reports and proxy statements so mailed;


 


(f)                                    promptly
upon the filing thereof, copies of all registration statements (other than the
exhibits thereto and any registration statements on Form S-8 or its equivalent)
and reports on Forms 10-K, 10-Q and 8-K (or their equivalents) which the
Borrower shall have filed with the Securities and Exchange Commission;


 


(g)                                 if
and when any member of the ERISA Group (i) gives or is required to give
notice to the PBGC of any “reportable event”
(as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been terminated, a
copy of such notice; (iii) receives notice from the PBGC under Title IV of
ERISA of an intent to terminate, impose liability (other than for premiums
under Section 4007 of ERISA)
in respect of, or appoint a trustee to administer any Plan, a copy of such
notice; (iv) applies for a waiver of the minimum funding standard under Section 412 of the Internal Revenue
Code, a copy of such application; (v) gives notice of intent to terminate
any Plan under Section 4041(c) of
ERISA, a copy of such notice and other information filed with the PBGC; (vi) gives
notice of withdrawal from any Plan pursuant to Section 4063
of ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of a bond
or other security, a certificate of the chief financial officer or


 


40





















 


the
chief accounting officer of the Borrower setting forth details as to such
occurrence and action, if any, which the Borrower or applicable member of the
ERISA Group is required or proposes to take; 


 


(h)                                 from
time to time, such additional information regarding the financial position or
business of the Borrower and its Subsidiaries as the Administrative Agent, at
the request of any Lender, may reasonably request.


 


Documents required to be
delivered pursuant to Section 6.01(a), (b), (e) or
(f) (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) (A) 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 (B) on which such documents are posted on the Borrower’s behalf on
IntraLinks/IntraAgency or another relevant 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), and (ii) on
which the Borrower notifies (which may be by facsimile or electronic mail) the
Administrative Agent and each Lender of the posting of any such documents; provided
that the Borrower shall deliver paper copies or soft copies (by electronic
mail) of such documents to the Administrative Agent or any Lender that requests
the Borrower to deliver such paper copies or soft copies. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to
provide paper copies of the Compliance Certificates required by Section 6.01(c) to
the Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the 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 10.08);
(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.”


 


6.02                        Payment of Obligations. The
Borrower will pay and discharge, and will cause each Subsidiary to pay and
discharge, at or before maturity, all their respective material obligations and
liabilities (including, without limitation, tax liabilities and claims of
materialmen, warehousemen and the like, which if unpaid might by law give rise
to a Lien), except where the same may be contested in good faith by appropriate
proceedings, and will maintain, and will cause each Subsidiary to maintain, in
accordance with generally accepted accounting principles, appropriate reserves
for the accrual of any of the same.


 


41





















 


6.03                        Maintenance of Property;
Insurance.


 


(a)                                  The
Borrower will keep, and will cause each Subsidiary to keep, all material
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted.


 


(b)                                 The
Borrower will, and will cause each of its Subsidiaries to, maintain (either in
the name of the Borrower or in such Subsidiary’s own name) with financially
sound and responsible insurance companies, insurance on all their respective
properties in at least such amounts, against at least such risks and with such
risk retention as are usually maintained, insured against or retained, as the
case may be, in the same general area by companies of established repute
engaged in the same or a similar business; and will furnish to the Lenders,
upon request from the Administrative Agent, information presented in reasonable
detail as to the insurance so carried.


 


6.04                        Conduct of Business and
Maintenance of Existence. The Borrower will preserve, renew and keep in
full force and effect, and will cause each Subsidiary to preserve, renew and
keep in full force and effect their respective legal existence and good
standing under the Laws of the jurisdiction of its organization and their
respective rights, privileges and franchises necessary or desirable in the
normal conduct of business; provided that nothing in this Section 6.04
shall prohibit (i) the merger of a Subsidiary into the Borrower or the
merger or consolidation of a Subsidiary with or into another Person if (A) in
the case of a domestic Subsidiary, the corporation surviving such consolidation
or merger is a domestic Subsidiary and (B) in the case of a foreign
Subsidiary, the entity surviving such consolidation or merger is a Subsidiary,
if, in each case covered by this clause (i), after giving effect thereto, no
Default shall have occurred and be continuing, or (ii) the termination of
the corporate existence of any Subsidiary if the Borrower in good faith
determines that such termination is in the best interest of the Borrower and is
not materially disadvantageous to the Lenders.


 


6.05                        Compliance with Laws. The Borrower will
comply, and cause each Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws and
ERISA and the rules and regulations thereunder) except where the necessity
of compliance therewith is contested in good faith by appropriate proceedings.


 


6.06                        Inspection of Property, Books and Records. The
Borrower will keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Subsidiary to permit, representatives of any Lender
at such Lender’s expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books
and records, and to discuss their respective affairs, finances and accounts
with their respective officers, employees and independent public accountants,
all at such reasonable times and as often as may reasonably be desired.


 


6.07                        Use of Proceeds. The proceeds of the Loans
made under this Agreement will be used by the Borrower (i) to repay
borrowings under the Existing Credit Agreement, (ii) for working capital,
capital expenditures, share repurchases, and other lawful corporate purposes,
and (iii) as support for the Borrower’s commercial paper program.


 


6.08                        Governmental Approvals and Filings. The
Borrower will, and will cause each Subsidiary to, keep and maintain in full
force and effect all action by or in respect of, or filing with, any
Governmental Authority necessary in connection with (a) the execution and
delivery of this Agreement, or any Note issued hereunder by the Borrower, (b) the
consummation by the Borrower of the transactions herein or therein
contemplated, (c) the performance of or compliance with the terms and
conditions hereof or thereof by the Borrower, or (d) any other actions
required to ensure the legality, validity, binding effect, enforceability or
admissibility in evidence hereof or thereof.


 


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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:


 


7.01                        Liens. Neither
the Borrower nor any Subsidiary shall, directly or indirectly, create, incur,
assume or suffer to exist any Lien on any asset now owned or hereafter acquired
by it, except: 


 


(a)                                  Liens
existing on the date of this Agreement securing Debt outstanding on the date of
this Agreement in an aggregate principal or face amount not exceeding
$10,000,000;


 


(b)                                 any
Lien existing on any asset of any person at the time such person becomes a
Subsidiary, and not created in contemplation of such event;


 


(c)                                  any
Lien on any asset securing Debt incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such asset, provided that
such Lien attaches to such asset concurrently with or within 90 days after
completion of the acquisition thereof;


 


(d)                                 (i) Liens
on the assets of NORESCO or on the assets of a Subsidiary of NORESCO
attributable to a NORESCO Project securing obligations of NORESCO or such
Subsidiary with respect to surety bonds and similar instruments obtained by
NORESCO or such Subsidiary with respect to such NORESCO Project; and (ii) Liens
on assets of NORESCO granted in financings which contemplate that assets will
be transferred to the financing entity in a transaction qualifying for sale
treatment under Financial Accounting Standards Board Statement No. 140,
provided that the aggregate book value of all assets subject to Liens described
in this subclause (ii) shall at no time exceed $150,000,000;


 


(e)                                  any
Lien on any asset of any person existing at the time such person is merged or
consolidated with or into the Borrower or a Subsidiary and not created in
contemplation of such event;


 


(f)                                    any
Lien existing on any asset prior to the acquisition thereof by the Borrower or
a Subsidiary, and not created in contemplation of such acquisition;


 


(g)                                 any
Lien arising out of the refinancing, extension, renewal or refunding of any
Debt secured by any Lien permitted by any of the foregoing clauses of this
Section; provided that such Debt is not increased and is not secured by any
additional assets;


 


(h)                                 Liens
arising in the ordinary course of its business which (i) do not secure
Debt or obligations in respect of Swap Contracts, (ii) do not secure any
obligation in an amount exceeding $20,000,000 and (iii) do not in the
aggregate materially detract from the value of its assets or materially impair
the use thereof in the operation of its business;


 


(i)                                     (i)                                     Liens
on cash and cash equivalents to secure obligations arising under Swap Contracts
which Liens (i) are granted by and governed by standard International
Swaps and Derivatives Association, Inc. (“ISDA”) documentation, and (ii) secure
Swap Contracts consisting of derivative transactions contemplated to be settled
in cash and not by physical delivery and which are non-speculative in nature
and are designed to minimize the risk of fluctuations in oil and gas prices
with respect to the Company’s operations in the ordinary course of its
business;


 


(j)                                     Liens
on the oil and gas properties, revenue therefrom, and other assets related to
the ANPI Transaction securing ANPI Obligations, as such Liens are described in
documentation in place as


 


43





















 


of the
date of this Agreement, with such changes in such documentation as, in the
reasonable opinion of the Administrative Agent, do not adversely affect the
interest of the Lenders;


 


(k)                                  Production
Payments and Liens on the properties covered thereby to secure performance
obligations in connection therewith, provided that the aggregate principal
amount of balance sheet obligations in respect of Production Payments may at no
time exceed $500,000,000; 


 


(l)                                     Liens
on shares of Kerr-McGee Corporation (successor by merger to Westport Resources
Corporation) (and any successor thereof) common stock to secure obligations
under or in connection with any swap, option, collar, forward or other hedging
transactions, including any Swap Contract, with respect to such shares or with
any other transactions entered into for the purpose of selling, assigning,
otherwise disposing of, or managing risk with respect to, such shares; and


 


(m)                               Liens
not otherwise permitted by the foregoing clauses of this Section securing
Debt in an aggregate principal or face amount at any date not to exceed
$100,000,000.


 


7.02                        Debt to Total Capital.                              Consolidated Debt will at no time exceed 65%
of Total Capital.


 


7.03                        Transactions with Affiliates.                                     The Borrower will not, and will not permit
any Subsidiary to, directly or indirectly, pay any funds to or for the account
of, make any investment (whether by acquisition of stock or indebtedness, by
loan, advance, transfer of property, guarantee or other agreement to pay,
purchase or service, directly or indirectly, any Debt, or otherwise) in, lease,
sell, transfer or otherwise dispose of any assets, tangible or intangible, to,
or participate in, or effect, any transaction with, any Affiliate, except on an
arms-length basis on terms at least as favorable to the Borrower or such
Subsidiary than could have been obtained from a third party who was not an
Affiliate; provided that the
foregoing provisions of this Section shall not prohibit any such Person
from declaring or paying any lawful dividend or other payment ratably in
respect of all of its capital stock of the relevant class so long as, after
giving effect thereto, no Default shall have occurred and be continuing.


 


7.04                        Limitation of Other
Restrictions on Dividends by Subsidiaries, etc. The Borrower will not permit any Subsidiary
to be or become subject to any restriction of any nature (whether arising by
operation of law, by agreement, by its articles of incorporation, by-laws or
other constituent documents of such Subsidiary, or otherwise) on the right of
such Subsidiary from time to time to (w) declare and pay dividends or
distributions with respect to capital stock owned by the Borrower or any
Subsidiary, (x) pay any indebtedness, obligations or liabilities from time
to time owed to the Borrower or any Subsidiary, (y) make loans or advances
to the Borrower or any Subsidiary, or (z) transfer any of its properties
or assets to the Borrower or any Subsidiary, except:


 


(a)                                  legal restrictions under other applicable
Law, if any, and fraudulent conveyance or similar laws of general applicability
for the benefit of creditors of such Subsidiary generally;


 


(b)                                 with respect to clause (z)
above:  (i) non-assignment
provisions of any executory contract or of any lease by the Borrower or such
Subsidiary as lessee, and (ii) restrictions on transfer of property
subject to a Lien permitted by Section 7.01 for the benefit of the
holder of such Lien;


 


(c)                                  restrictions applicable solely to an Excluded
Subsidiary.


 


7.05                        Mergers and Sales of Assets.
The Borrower will not (i) consolidate or merge with or into any other
Person or (ii) sell, lease or otherwise transfer, directly or indirectly,
all or substantially all of the assets of the Borrower and its Subsidiaries,
taken as a whole, to any other Person; provided
that the Borrower may merge with another Person if (x) the Borrower
is the corporation surviving such merger and (y) after giving effect to such
merger, no Default shall have occurred and be continuing.


 


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


 


7.07                        Use of
Proceeds. The Borrower shall not use the proceeds of any Credit Extension,
whether directly or indirectly, for a purpose that entails a violation of
Regulation U of the FRB.


 


ARTICLE VIII.


EVENTS OF DEFAULT AND REMEDIES


 


8.01                        Events of Default. Any of
the following shall constitute an Event of Default:


 


(a)                                  Non-Payment.
The Borrower fails to pay (i) when and as required to be paid herein, any
amount of principal of any Loan or any L/C Obligation, or (ii) within five
days after the same becomes due, any interest on any Loan or on any L/C
Obligation, or any facility, utilization or other fee due hereunder, or 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 Sections  6.01(d), 6.07 or 6.08
or Article VII; or


 


(c)                                  Other
Defaults. The Borrower fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days; or


 


(d)                                 Representations
and Warranties. Any representation, warranty, certification or statement of
fact made or deemed made by or on behalf of the Borrower, 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; provided that
(except in the case of any representation, warranty or certification made with
respect to any financial statement of the Borrower) if such lack of correctness
is capable of being remedied or cured within a 30-day period, Borrower shall
have a period of 30 days after written notice thereof has been given to
Borrower by Administrative Agent (acting on the request of one or more Lenders)
within which to remedy or cure such lack of correctness; or


 


(e)                                  Cross-Payment
Default; Cross-Acceleration. The Borrower or any Subsidiary (A) fails
to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Material
Financial Obligations, or (B) fails to observe or perform any other
agreement or condition relating to any Material Debt 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 the
maturity of such Material Debt to be accelerated or to cause such Material Debt
to be repurchased, prepaid, defeased or redeemed (automatically or otherwise),
or an offer to repurchase, prepay, defease or redeem such Debt to be made, prior
to its stated maturity; or


 


(f)                                    Insolvency
Proceedings, Etc. The Borrower or any Material Subsidiary institutes or
consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to
the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator
or similar officer is appointed without the application or consent of such
Person and the appointment continues undischarged or unstayed for 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


 


45





















 


continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or


 


(g)                                 Inability
to Pay Debts; Attachment. (i) The Borrower or any Material Subsidiary
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 the Borrower or any Subsidiary final judgments or
orders for the payment of money in an aggregate amount exceeding $50,000,000
(to the extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage), and (A) enforcement proceedings are
commenced by any creditor upon such judgment or order, or (B) there is a
period of 30 consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or 


 


(i)                                     ERISA.
Any member of the ERISA Group shall
fail to pay when due an amount or amounts aggregating in excess of $5,000,000
which it shall have become liable to pay under Title IV of ERISA; or notice of
intent to terminate a Material Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer, any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning
of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans, which could cause one
or more members of the ERISA Group to incur a current payment obligation in
excess of $25,000,000 in the aggregate; or


 


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


 


(k)                                  Change
of Control. There occurs any Change of Control with respect to the
Borrower.


 


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 obligations 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


 


46





















 


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


 


provided,
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.


 


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 Attorney Costs 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 and interest) payable to the Lenders
(including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;


 


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


 


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


 


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


 


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


 


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


 


ARTICLE IX.


ADMINISTRATIVE AGENT


 


9.01                        Appointment and Authorization
of Administrative Agent.


 


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


 


47





















 


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.


 


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 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.


 


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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 shall be entitled to rely on legal counsel (who may be
counsel for the Borrower), independent accountants and other experts selected
by it.


 


9.05                        Indemnification of
Administrative Agent. Whether or not the transactions contemplated hereby
are consummated, the Lenders shall indemnify upon demand each Agent-Related
Person (to the extent not reimbursed by or on behalf of the Borrower and
without limiting the obligation of the Borrower to do so), pro rata, and hold
harmless each Agent-Related Person from and against any and all Indemnified
Liabilities incurred by it; provided, however, that no Lender
shall be liable for the payment to any Agent-Related Person of any portion of
such Indemnified Liabilities to the extent determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such
Agent-Related Person’s own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for its
ratable share of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that the Administrative Agent is not reimbursed for such expenses by or on
behalf of the Borrower. The obligations of the Lenders in this Section are
subject to the provisions of Section 2.12(e) and shall survive
termination of the Aggregate Commitments, the payment of all other Obligations
and the resignation of the Administrative Agent.


 


9.06                        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.


 


9.07                        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 (so long as no Event of Default exists), to
appoint a successor, which shall be a bank with an office in the United States,
or an Affiliate of any such bank with an office in the United States. If no
such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative
Agent meeting the


 


49





















 


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 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.


 


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


 


9.09                        No Other Duties, Etc. Anything
herein to the contrary notwithstanding, none of the Bookrunners, Arrangers,
Documentation Agent or Syndication Agent 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.


 


9.10                        Administrative Agent May File
Proofs of Claim. In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Borrower, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise


 


50





















 


(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, 10.04 and 10.05)
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, 10.04 and 10.05.


 


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 to authorize the Administrative
Agent to vote in respect of the claim of any Lender in any such proceeding.


 


ARTICLE X.


MISCELLANEOUS


 


10.01                 Amendments,
Etc.  No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent to any
departure by the Borrower therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower, 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)                                  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;


 


(b)                                 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;


 


(c)                                  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 to amend the definition of “Default Rate” or to waive any obligation
of the Borrower to pay interest at the Default Rate;


 


(d)                                 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; or


 


51





















 


(e)                                  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;


 


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
Letter of Credit Application relating to any Letter of Credit issued or to be
issued by it; (ii) no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Lender in addition to the Lenders required
above, affect the rights or duties of the Swing Line Lender under this
Agreement; (iii) no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required
above, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document; (iv) Section 10.07(h) may
not be amended, waived or otherwise modified without the consent of each
Granting Lender all or any part of whose Loans are being funded by an SPC at
the time of such amendment, waiver or other modification; and (v) the Fee
Letters may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto.


 


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.


 


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


 


52





















 


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


 


10.03                 No Waiver;
Cumulative Remedies. No failure by any Lender or the Administrative Agent
to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other


 


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


 


10.05                 Indemnification
by the Borrower. Whether or not the transactions contemplated hereby are
consummated, the Borrower shall indemnify and hold harmless each Agent-Related
Person, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively the “Indemnitees”)
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses and
disbursements (including Attorney Costs) of any kind or nature whatsoever which
may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a) the
execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Commitment, Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (c) any actual
or alleged presence or release of Hazardous Substances on or from any property
currently or formerly owned or operated by the Borrower or any Subsidiary of
the Borrower, or any Environmental Liability related in any way to the Borrower
or any Subsidiary of the Borrower, or (d) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including any
investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified
Liabilities”), in all cases, whether or not caused by or arising, in whole or in part,
out of the negligence of the Indemnitee; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee. No
Indemnitee shall be liable for any damages arising from the use by others of
any information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement. All amounts
due under this Section 10.05 shall be payable within ten Business
Days after demand therefore. The agreements in this Section shall survive
the resignation of the Administrative Agent, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.


 


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


 


10.07                 Successors and
Assigns.


 


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


 


(b)                                 Any
Lender may at any time assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and Swing Line Loans) at the time owing to
it); provided that (i) except in the case of an assignment of the
entire remaining amount of the assigning Lender’s Commitment and the Loans at
the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund (as defined in subsection (g) of
this Section) with respect to a Lender, 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, each L/C Issuer, and, so long as no Default or 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 Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been
met; (ii) 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 rights in respect of Swing Line
Loans; (iii) any assignment of a Commitment must be approved by the
Administrative Agent, the L/C Issuer and the Swing Line Lender unless the
Person that is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee), such
approval not to be unreasonably withheld or delayed; and (iv) the parties
to each assignment shall execute and deliver to the


 


55





















 


Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee in
the amount, if any, required as set forth in Schedule 10.07, and
the Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Subject to acceptance and
recording thereof by the Administrative Agent pursuant to subsection (c) of
this Section, from and after the effective date specified in each Assignment
and Assumption, the Eligible Assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Sections 3.01, 3.04, 3.05, 10.04
and 10.05 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)                                  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 contrary. The Register shall be
available for inspection by the Borrower and the L/C Issuer, at any reasonable
time and from time to time upon reasonable prior notice. In addition, at any
time that a request for a consent for a material or substantive change to the
Loan Documents is pending, any Lender may request and receive from the
Administrative Agent a copy of the Register.


 


(d)                                 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 for purposes of this subsection (b),
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 and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any  provision
of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, waiver or other modification described in the first
proviso to Section 10.01 that directly 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 10.09 as
though it were a Lender, provided such Participant agrees to be subject
to Section 2.13 as though it were a Lender.


 


(e)                                  A
Participant shall not be entitled to receive any greater payment under Section 3.01
or 3.04 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s


 


56



















 


prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 10.15
as though it were a Lender.


 


(f)                                    Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (including under its Note, if any)
to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such
pledge or assignment shall release 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 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)                                 As
used herein, the following terms have the following meanings:


 


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


 


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


 


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


 


(i)                                     Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle identified as such in writing
from time to time by the Granting Lender to the Administrative Agent and the
Borrower (an “SPC”) the option to provide all or any part of any
Committed Loan that such Granting Lender would otherwise be obligated to make
pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to fund any Committed Loan, and (ii) if
an SPC elects not to exercise such option or otherwise fails to make all or any
part of such Committed Loan, the Granting Lender shall be obligated to make
such Committed Loan pursuant to the terms hereof. Each party hereto hereby
agrees that (i) neither the grant to any SPC nor the exercise by any SPC
of such option shall increase the costs or expenses or otherwise increase or
change the obligations of the Borrower under this Agreement (including its
obligations under Section 3.04), (ii) no SPC shall be liable
for any indemnity or similar payment obligation under this Agreement for which
a Lender would be liable, and (iii) the Granting Lender shall for all
purposes, including the approval of any amendment, waiver or other modification
of any provision of any Loan Document, remain the lender of record hereunder. The
making of a Committed Loan by an SPC hereunder shall utilize the Commitment of
the Granting Lender to the same extent, and as if, such Committed Loan were
made by such Granting Lender. In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one


 


57





















 


day after the payment in
full of all outstanding commercial paper or other senior debt of any SPC, it
will not institute against, or join any other Person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained herein, any SPC may (i) with
notice to, but without prior consent of the Borrower and the Administrative
Agent and with payment of a processing fee of $3,500, assign all or any portion
of its right to receive payment with respect to any Committed Loan to the
Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Committed Loans to any rating agency, commercial
paper dealer or provider of any surety or Guarantee or credit or liquidity
enhancement to such SPC.


 


(j)                                     Notwithstanding anything to the contrary
contained herein, any Lender that is a Fund may create a security interest in
all or any portion of the Loans owing to it and the Note, if any, held by it to
the trustee for holders of obligations owed, or securities issued, by such Fund
as security for such obligations or securities, provided that unless and
until such trustee actually becomes a Lender in compliance with the other
provisions of this Section 10.07, (i) no such pledge shall
release the pledging Lender from any of its obligations under the Loan
Documents and (ii) such trustee shall not be entitled to exercise any of
the rights of a Lender under the Loan Documents even though such trustee may
have acquired ownership rights with respect to the pledged interest through
foreclosure or otherwise.


 


(k)                                  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 Company, 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 and obligations of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).
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 Committed 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 succession or make other arrangements satisfactory to Bank of
America to effectively assume the obligations of Bank of America with respect
to such Letters of Credit.


 


10.08                 Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors (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; (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process; (d) to any other party to this Agreement; (e) in connection
with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder; (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any Eligible Assignee of or Participant in, or any
prospective Eligible Assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any direct or indirect
contractual counterparty or prospective counterparty (or such contractual


 


58





















 


counterparty’s
or prospective counterparty’s professional advisor) to any credit derivative
transaction relating to obligations of the Borrower; (g) with the consent
of the Borrower; (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis
from a source other than the Borrower; or (i) to the National Association
of Insurance Commissioners or any other similar organization. In addition, the
Administrative Agent and the Lenders may disclose the existence of this
Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the
Administrative Agent and the Lenders in connection with the administration and
management of this Agreement, the other Loan Documents, the Commitments, and
the Credit Extensions. For purposes of this Section, “Information” means
all information received from the Borrower or any Subsidiary relating to the
Borrower or any Subsidiary or any of their respective businesses, other than
any such information that is available to the Administrative Agent, any Lender
or the L/C Issuer on a nonconfidential basis prior to disclosure by the
Borrower or any Subsidiary. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.


 


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


 


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


 


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


 


To the extent that the
interest rate laws of the State of Texas are applicable to the Loans for
purposes of determining the “maximum rate” or the “maximum amount,” then those
terms mean the “weekly ceiling” from time to time in effect under Texas Finance
Code § 303.001, as limited by Texas


 


59





















 


Finance
Code § 303.009, and, to the extent that this Agreement is deemed an open
end account as such term is defined in Texas Finance Code Section 301.002(a)(14),
the Lenders retain the right to modify the interest rate in accordance with
applicable law.


 


The parties agree that
Texas Finance Code, Chapter 346, which regulates certain revolving loan
accounts and revolving triparty accounts, shall not apply to any revolving loan
accounts created under this Agreement or the Notes or maintained in connection
therewith.


 


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


 


10.12                 Integration. This
Agreement, together with the other Loan Documents, comprises the complete and
integrated agreement of the parties on the subject matter hereof and thereof
and supersedes all prior agreements, written or oral, on such subject matter. In
the event of any conflict between the provisions of this Agreement and those of
any other Loan Document, the provisions of this Agreement shall control; provided
that the inclusion of supplemental rights or remedies in favor of the
Administrative Agent or the Lenders in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.


 


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


 


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


 


10.15                 Tax Forms. (a)  (i)  Each Lender that is not a “United
States person” within the meaning of Section 7701(a)(30) of the Code (a “Foreign
Lender”) shall deliver to the Administrative Agent, prior to receipt of any
payment subject to withholding under the Code (or upon accepting an assignment
of an interest herein), two duly signed completed copies of either IRS Form W-8BEN
or any successor thereto (relating to such Foreign Lender and entitling it to
an exemption from, or reduction of, withholding tax on all payments to be made
to such Foreign Lender by the Borrower pursuant to this Agreement) or IRS Form W-8ECI
or any successor thereto (relating to all payments to be made to such Foreign
Lender by the Borrower pursuant to this Agreement) or such other evidence
satisfactory to the Borrower and the Administrative Agent that such Foreign
Lender is entitled to an exemption from, or reduction of, U.S. withholding tax,
including any exemption pursuant to Section 881(c) of the Code. Thereafter
and from time to time, each such Foreign Lender shall (A) promptly submit
to the Administrative Agent such additional duly completed and signed copies of
one of such forms (or such successor forms as shall be adopted from time to
time by the relevant United States taxing authorities) as may then be available
under then current United States laws and regulations to avoid, or such
evidence as is satisfactory to the Borrower and the Administrative Agent of any
available exemption from or reduction of, United States


 


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


 


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


 


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


 


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


 


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


 


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


 


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10.16                 Replacement
of Lenders.


 


If any Lender
requests compensation under Section 3.04, 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 other circumstance exists
hereunder that gives the Borrower the right to replace a Lender as a party
hereto, 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 10.07), all of its
interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment), provided that:


 


(a)                                  the
Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 10.07(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; and


 


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


 


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


 


10.17                 Governing Law.


 


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


 


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


 


62





















 


PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.


 


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


 


10.19                 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
Borrowers, which information includes the name and address of each Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify such Borrower in accordance with the Act.


 


10.20                 Termination of
Commitments Under Existing Credit Agreement. The commitments of the
Existing Lenders under the Existing Credit Agreement shall terminate on the
Closing Date. Execution of this Agreement by Lenders who are Existing Lenders
shall constitute a waiver of the notice provisions in Sections 2.09 and 9.01
of the Existing Credit Agreement.


 


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


 


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


 


	
   

  	
  EQUITABLE
  RESOURCES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Philip P. Conti

  	
   

  
	
   

  	
  Name:

  	
  Philip
  P. Conti

  
	
   

  	
  Title:

  	
  Vice
  President, CFO and Treasurer

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]


 





















 


	
   

  	
  BANK
  OF AMERICA, N.A., 

  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Ronald E. McKaig

  	
   

  
	
   

  	
  Name:

  	
  Ronald
  E. McKaig

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK
  OF AMERICA, N.A.,

  as a Lender, an L/C Issuer, and Swing Line Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Ronald E. McKaig

  	
   

  
	
   

  	
  Name:

  	
  Ronald
  E. McKaig

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]


 





















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A.

  as a Lender, an L/C Issuer, and Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Robert C. Mertensotto

  	
   

  
	
   

  	
  Name:

  	
  Robert
  C. Mertensotto

  
	
   

  	
  Title:

  	
  Managing
  Director

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]


 





















 


	
   

  	
  THE
  BANK OF TOKYO-MITSUBISHI, LTD.,

  as a Lender and Co-Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Kelton Glassock

  	
   

  
	
   

  	
  Name:

  	
  Kelton
  Glassock

  
	
   

  	
  Title:

  	
  Vice
  President & Manager

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]


 





















 


	
   

  	
  CITIBANK,
  N.A.,

  as a Lender and Co-Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Robert J. Harrity, Jr.

  	
   

  
	
   

  	
  Name:

  	
  Robert
  J. Harrity, Jr.

  
	
   

  	
  Title:

  	
  Managing
  Director

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]


 





















 


	
   

  	
  PNC
  BANK, NATIONAL ASSOCIATION

  as a Lender and Co-Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Thomas A. Majeski

  	
   

  
	
   

  	
  Name:

  	
  Thomas
  A. Majeski

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]


 





















 


	
   

  	
  BARCLAYS
  BANK PLC,

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Nicholas Bell

  	
   

  
	
   

  	
  Name:

  	
  Nicholas
  Bell

  
	
   

  	
  Title:

  	
  Director

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]


 





















 


	
   

  	
  DEUTSCHE
  BANK AG NEW YORK BRANCH,

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Rainer Meier

  	
   

  
	
   

  	
  Name:

  	
  Rainer
  Meier

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Marcus Tarkington

  	
   

  
	
   

  	
  Name:

  	
  Marcus
  Tarkington

  
	
   

  	
  Title:

  	
  Director

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]


 





















 


	
   

  	
  HARRIS
  NESBITT FINANCING, INC.,

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Cahal B. Carmody

  	
   

  
	
   

  	
  Name:

  	
  Cahal
  B. Carmody

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]


 





















 


	
   

  	
  MELLON
  BANK, N.A.,

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Mark W. Rogers

  	
   

  
	
   

  	
  Name:

  	
  Mark
  W. Rogers

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]


 





















 


	
   

  	
  SUNTRUST
  BANK,

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Kelley Brunson

  	
   

  
	
   

  	
  Name:

  	
  Kelley
  Brunson

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]


 





















 


	
   

  	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION,

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Paul M. Pritchett

  	
   

  
	
   

  	
  Name:

  	
  Paul
  M. Pritchett

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]


 





















 


	
   

  	
  THE
  BANK OF NEW YORK,

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  David Sunderwirth

  	
   

  
	
   

  	
  Name:

  	
  David
  Sunderwirth

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]


 





















 


	
   

  	
  BNP
  PARIBAS,

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Betsy Jocher

  	
   

  
	
   

  	
  Name:

  	
  Betsy
  Jocher

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Polly Schott

  	
   

  
	
   

  	
  Name:

  	
  Polly
  Schott

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]


 





















 


	
   

  	
  FIFTH
  THIRD BANK,

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Jim Janovsky

  	
   

  
	
   

  	
  Name:

  	
  Jim
  Janovsky

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 


 


[Signature Page to Equitable Resources, Inc.
Revolving Credit Agreement]