exv4w1






Exhibit 4.1



Execution Version




AMENDED AND RESTATED CREDIT AGREEMENT,




dated as of June 6, 2008




among




AEI,

as the Cayman Borrower,




AEI FINANCE HOLDING LLC,

as the U.S. Borrower,




CREDIT SUISSE,

CAYMAN ISLANDS BRANCH,

as Revolving LC Issuer,




CREDIT SUISSE,

CAYMAN ISLANDS BRANCH,

as Synthetic LC Issuer,




CREDIT SUISSE,

CAYMAN ISLANDS BRANCH,

as Administrative Agent, and




JPMORGAN CHASE BANK, N.A.,

as Collateral Agent

 






CREDIT SUISSE SECURITIES (USA) LLC and J.P. MORGAN SECURITIES, INC.,

as Joint Lead Arrangers, Joint Bookrunners and Joint Syndication Agents,




and




CREDIT SUISSE SECURITIES (USA) LLC,

as Sole Structuring and Sole Documentation Agent




 






 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	PAGE	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	2	 
	 
	 	 	 	 
	SECTION 1.1 Defined Terms
	 	 	2	 
	 
	 	 	 	 
	SECTION 1.2 Use of Defined Terms
	 	 	30	 
	 
	 	 	 	 
	SECTION 1.3 Cross-References
	 	 	30	 
	 
	 	 	 	 
	SECTION 1.4 Accounting and Financial Determinations
	 	 	30	 
	 
	 	 	 	 
	SECTION 1.5 Treatment of Certain Non-consolidated or Non-controlled Subsidiaries
	 	 	31	 
	 
	 	 	 	 
	SECTION 1.6 Subsidiaries’ Submission to Applicable Law and Contractual and Fiduciary
Duties
	 	 	32	 
	 
	 	 	 	 
	ARTICLE II COMMITMENTS, BORROWING PROCEDURES AND NOTES
	 	 	32	 
	 
	 	 	 	 
	SECTION 2.1 Commitments
	 	 	32	 
	SECTION 2.1.1 Term Loan Commitments
	 	 	32	 
	SECTION 2.1.2 Revolving Loan Commitments
	 	 	32	 
	SECTION 2.1.3 Synthetic Revolving Deposit Account
	 	 	33	 
	SECTION 2.1.4 Revolving Letters of Credit
	 	 	37	 
	SECTION 2.1.5 Synthetic Letters of Credit
	 	 	38	 
	 
	 	 	 	 
	SECTION 2.2 Borrowing Procedures
	 	 	40	 
	SECTION 2.2.1 Term Loan Borrowing Procedures
	 	 	40	 
	SECTION 2.2.2 Revolving Loan Borrowing Procedures
	 	 	40	 
	SECTION 2.2.3 Synthetic Revolving Deposits; Synthetic Revolving Loan
Borrowing Procedures
	 	 	40	 
	 
	 	 	 	 
	SECTION 2.3 Continuation and Conversion Elections
	 	 	40	 
	 
	 	 	 	 
	SECTION 2.4 Funding
	 	 	41	 
	 
	 	 	 	 
	SECTION 2.5 Letter of Credit Issuance Procedures
	 	 	41	 
	SECTION 2.5.1 Participations in Letters of Credit
	 	 	41	 
	SECTION 2.5.2 Disbursements
	 	 	42	 
	SECTION 2.5.3 Reimbursement
	 	 	43	 
	SECTION 2.5.4 Deemed Disbursements of Letters of Credit
	 	 	44	 
	SECTION 2.5.5 Nature of Reimbursement Obligations
	 	 	46	 
	SECTION 2.5.6 Resignation and Removal of Issuing Bank; Additional Issuing
Banks
	 	 	47	 
	 
	 	 	 	 
	SECTION 2.6 Register; Notes
	 	 	48	 
	 
	 	 	 	 
	SECTION 2.7 Increase in Revolving Loan Commitment Amount
	 	 	49	 
	 
	 	 	 	 
	ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
	 	 	50	 
	 
	 	 	 	 
	SECTION 3.1 Repayments and Prepayments; Application
	 	 	50	 
	 
	 	 	 	 
	i







 









 






	 	 	 	 	 
	 	 	PAGE	 
	SECTION 3.1.1 Repayments and Prepayments
	 	 	50	 
	SECTION 3.1.2 Application
	 	 	55	 
	 
	 	 	 	 
	SECTION 3.2 Interest Provisions
	 	 	56	 
	SECTION 3.2.1 Rates; Fees
	 	 	56	 
	SECTION 3.2.2 Post-Maturity Rates
	 	 	57	 
	SECTION 3.2.3 Payment Dates
	 	 	57	 
	 
	 	 	 	 
	SECTION 3.3 Fees
	 	 	58	 
	SECTION 3.3.1 Revolving Loan Commitment Fee
	 	 	58	 
	 
	 	 	 	 
	ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
	 	 	58	 
	 
	 	 	 	 
	SECTION 4.1 LIBO Rate Lending Unlawful
	 	 	58	 
	 
	 	 	 	 
	SECTION 4.2 Deposits Unavailable
	 	 	59	 
	 
	 	 	 	 
	SECTION 4.3 Increased LIBO Rate Loan Costs, etc.
	 	 	59	 
	 
	 	 	 	 
	SECTION 4.4 Funding Losses
	 	 	60	 
	 
	 	 	 	 
	SECTION 4.5 Increased Capital Costs
	 	 	60	 
	 
	 	 	 	 
	SECTION 4.6 Taxes
	 	 	60	 
	 
	 	 	 	 
	SECTION 4.7 Payments, Computations, etc.
	 	 	63	 
	 
	 	 	 	 
	SECTION 4.8 Sharing of Payments
	 	 	64	 
	 
	 	 	 	 
	SECTION 4.9 Setoff
	 	 	65	 
	 
	 	 	 	 
	SECTION 4.10 Replacement of Lenders
	 	 	65	 
	 
	 	 	 	 
	SECTION 4.11 Mitigation
	 	 	66	 
	 
	 	 	 	 
	ARTICLE V CONDITIONS TO LOANS
	 	 	66	 
	 
	 	 	 	 
	SECTION 5.1 Conditions to Closing
	 	 	66	 
	SECTION 5.1.1 Resolutions, etc.
	 	 	66	 
	SECTION 5.1.2 Certificates
	 	 	67	 
	SECTION 5.1.3 Delivery of Loan Documents; Notes
	 	 	67	 
	SECTION 5.1.4 Collateral Security Arrangements
	 	 	67	 
	SECTION 5.1.5 Opinions of Counsel
	 	 	68	 
	SECTION 5.1.6 Closing Fees, Expenses, etc.
	 	 	68	 
	SECTION 5.1.7 Satisfactory Legal Form
	 	 	68	 
	SECTION 5.1.8 Patriot Act Disclosures
	 	 	68	 
	SECTION 5.1.9 Financial Statements
	 	 	68	 
	SECTION 5.1.10 Compliance with Warranties, No Default, etc.
	 	 	68	 
	SECTION 5.1.11 Solvency, etc.
	 	 	69	 
	SECTION 5.1.12 Necessary Consents; Acknowledgments
	 	 	69	 
	SECTION 5.1.13 Rating of Loans
	 	 	69	 
	SECTION 5.1.14 Evidence of Insurance
	 	 	69	 
	SECTION 5.1.15 Existing Indebtedness
	 	 	69	 
	 
	 	 	 	 
	SECTION 5.2 Conditions to Restatement
	 	 	69	 
	 
	 	 	 	 
	ii







 









 






	 	 	 	 	 
	 	 	PAGE	 
	SECTION 5.2.1 Certificates
	 	 	69	 
	SECTION 5.2.2 Delivery of Loan Documents
	 	 	69	 
	SECTION 5.2.3 Opinions of Counsel
	 	 	70	 
	SECTION 5.2.4 Collateral Security Arrangements
	 	 	70	 
	SECTION 5.2.5 Restatement Fees, Expenses, etc.
	 	 	70	 
	SECTION 5.2.6 Satisfactory Legal Form
	 	 	70	 
	 
	 	 	 	 
	SECTION 5.3 Conditions to Revolving Loan and Synthetic Revolving Loan Borrowings and
the Issuance of Letters of 

                    Credit
	 	 	70	 
	SECTION
5.3.1 Borrowing Request or Issuance Request
	 	 	70	 
	SECTION
5.3.2 Closing Conditions
	 	 	71	 
	SECTION
5.3.3 Representations and Warranties
	 	 	71	 
	SECTION
5.3.4 No Default
	 	 	71	 
	 
	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	71	 
	 
	 	 	 	 
	SECTION 6.1 Organization, etc.
	 	 	71	 
	 
	 	 	 	 
	SECTION 6.2 Due Authorization, Non-Contravention, etc.
	 	 	71	 
	 
	 	 	 	 
	SECTION 6.3 Government Approval, Regulation, etc.
	 	 	72	 
	 
	 	 	 	 
	SECTION 6.4 Validity, etc.
	 	 	72	 
	 
	 	 	 	 
	SECTION 6.5 Financial Information
	 	 	72	 
	 
	 	 	 	 
	SECTION 6.6 No Material Adverse Change; Solvency
	 	 	73	 
	 
	 	 	 	 
	SECTION 6.7 Litigation
	 	 	73	 
	 
	 	 	 	 
	SECTION 6.8 Subsidiaries
	 	 	73	 
	 
	 	 	 	 
	SECTION 6.9 Ownership of Properties
	 	 	73	 
	 
	 	 	 	 
	SECTION 6.10 Taxes
	 	 	73	 
	 
	 	 	 	 
	SECTION 6.11 Pension and Welfare Plans
	 	 	74	 
	 
	 	 	 	 
	SECTION 6.12 Environmental Warranties
	 	 	74	 
	 
	 	 	 	 
	SECTION 6.13 Accuracy of Information
	 	 	75	 
	 
	 	 	 	 
	SECTION 6.14 Regulations U and X
	 	 	75	 
	 
	 	 	 	 
	SECTION 6.15 Absence of Any Undisclosed Liabilities
	 	 	75	 
	 
	 	 	 	 
	SECTION 6.16 Labor Matters
	 	 	75	 
	 
	 	 	 	 
	SECTION 6.17 Legal Form
	 	 	76	 
	 
	 	 	 	 
	SECTION 6.18 Ranking
	 	 	76	 
	 
	 	 	 	 
	SECTION 6.19 Collateral
	 	 	77	 
	 
	 	 	 	 
	SECTION 6.20 Commercial Activity; Absence of Immunity
	 	 	77	 
	 
	 	 	 	 
	SECTION 6.21 Subsidiary Distributions
	 	 	77	 
	 
	 	 	 	 
	iii







 









 






	 	 	 	 	 
	 	 	PAGE	 
	ARTICLE VII COVENANTS
	 	 	77	 
	 
	 	 	 	 
	SECTION 7.1 Affirmative Covenants
	 	 	77	 
	SECTION
7.1.1 Financial Information, Reports, Notices, etc.
	 	 	77	 
	SECTION
7.1.2 Maintenance of Existence; Compliance with Laws, etc.
	 	 	80	 
	SECTION
7.1.3 Maintenance of Properties
	 	 	80	 
	SECTION
7.1.4 Insurance
	 	 	81	 
	SECTION
7.1.5 Books and Records
	 	 	81	 
	SECTION
7.1.6 Environmental Law Covenant
	 	 	81	 
	SECTION
7.1.7 Use of Proceeds
	 	 	82	 
	SECTION
7.1.8 Collateral Requirements and Further Assurances
	 	 	82	 
	SECTION
7.1.9 Hedging Obligations
	 	 	83	 
	 
	 	 	 	 
	SECTION 7.2 Negative Covenants
	 	 	83	 
	SECTION
7.2.1 Business Activities
	 	 	83	 
	SECTION
7.2.2 Indebtedness
	 	 	83	 
	SECTION
7.2.3 Liens
	 	 	87	 
	SECTION
7.2.4 Financial Covenants
	 	 	89	 
	SECTION
7.2.5 Investments
	 	 	89	 
	SECTION
7.2.6 Restricted Payments, etc.
	 	 	91	 
	SECTION
7.2.7 Capital Expenditures, etc.
	 	 	91	 
	SECTION
7.2.8 No Prepayment of Other Debt
	 	 	91	 
	SECTION
7.2.9 Issuance of Capital Securities
	 	 	92	 
	SECTION
7.2.10 Consolidation, Merger, Permitted Acquisitions, etc.
	 	 	92	 
	SECTION
7.2.11 Permitted Dispositions
	 	 	93	 
	SECTION
7.2.12 Modification of Certain Agreements
	 	 	94	 
	SECTION
7.2.13 Transactions with Affiliates
	 	 	94	 
	SECTION
7.2.14 Restrictive Agreements, etc.
	 	 	95	 
	SECTION
7.2.15 Sale and Leaseback
	 	 	96	 
	SECTION
7.2.16 U.S. Borrower
	 	 	96	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT
	 	 	96	 
	 
	 	 	 	 
	SECTION 8.1 Listing of Events of Default
	 	 	96	 
	SECTION
8.1.1 Non-Payment of Obligations
	 	 	96	 
	SECTION
8.1.2 Breach of Warranty
	 	 	97	 
	SECTION
8.1.3 Non-Performance of Certain Covenants and Obligations
	 	 	97	 
	SECTION
8.1.4 Non-Performance of Other Covenants and Obligations
	 	 	97	 
	SECTION
8.1.5 Default on Other Indebtedness
	 	 	97	 
	SECTION
8.1.6 Judgments
	 	 	97	 
	SECTION
8.1.7 Pension Plans
	 	 	98	 
	SECTION
8.1.8 Change in Control
	 	 	98	 
	SECTION
8.1.9 Bankruptcy, Insolvency, etc.
	 	 	98	 
	SECTION
8.1.10 Impairment of Security, etc.
	 	 	99	 
	SECTION
8.1.11 Failure of Subordination
	 	 	99	 
	 
	 	 	 	 
	SECTION 8.2 Action if Bankruptcy
	 	 	99	 
	 
	 	 	 	 
	iv







 









 






	 	 	 	 	 
	 	 	PAGE	 
	SECTION 8.3 Action if Other Event of Default
	 	 	99	 
	 
	 	 	 	 
	SECTION 8.4 Effect of Cure
	 	 	100	 
	 
	 	 	 	 
	ARTICLE IX THE AGENTS
	 	 	100	 
	 
	 	 	 	 
	SECTION 9.1 Actions
	 	 	100	 
	 
	 	 	 	 
	SECTION 9.2 Funding Reliance, etc.
	 	 	101	 
	SECTION
9.2.1 Lenders
	 	 	101	 
	SECTION
9.2.2 Borrowers
	 	 	101	 
	 
	 	 	 	 
	SECTION 9.3 Exculpation
	 	 	101	 
	 
	 	 	 	 
	SECTION 9.4 Successor
	 	 	102	 
	 
	 	 	 	 
	SECTION 9.5 Loans by the Administrative Agent
	 	 	103	 
	 
	 	 	 	 
	SECTION 9.6 Credit Decisions
	 	 	103	 
	 
	 	 	 	 
	SECTION 9.7 Copies, etc.
	 	 	103	 
	 
	 	 	 	 
	SECTION 9.8 Reliance by Agents and the Issuing Banks
	 	 	103	 
	 
	 	 	 	 
	SECTION 9.9 Defaults
	 	 	104	 
	 
	 	 	 	 
	SECTION 9.10 Appointment of Supplemental Agent, Sub-Agent; etc.
	 	 	104	 
	 
	 	 	 	 
	SECTION 9.11 Posting of Approved Electronic Communications
	 	 	105	 
	 
	 	 	 	 
	SECTION 9.12 Release of Liens
	 	 	106	 
	 
	 	 	 	 
	SECTION 9.13 New Intercreditor Agreement
	 	 	107	 
	 
	 	 	 	 
	SECTION 9.14 Withholding Tax
	 	 	107	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS PROVISIONS
	 	 	107	 
	 
	 	 	 	 
	SECTION 10.1 Waivers, Amendments, etc.
	 	 	107	 
	 
	 	 	 	 
	SECTION 10.2 No Waiver by Issuing Bank
	 	 	108	 
	 
	 	 	 	 
	SECTION 10.3 Notices; Time
	 	 	108	 
	 
	 	 	 	 
	SECTION 10.4 Payment of Costs and Expenses
	 	 	109	 
	 
	 	 	 	 
	SECTION 10.5 Indemnification
	 	 	110	 
	 
	 	 	 	 
	SECTION 10.6 Survival
	 	 	111	 
	 
	 	 	 	 
	SECTION 10.7 Severability
	 	 	111	 
	 
	 	 	 	 
	SECTION 10.8 Headings
	 	 	111	 
	 
	 	 	 	 
	SECTION 10.9 Execution in Counterparts, Effectiveness, etc.
	 	 	111	 
	 
	 	 	 	 
	SECTION 10.10 Governing Law; Entire Agreement
	 	 	111	 
	 
	 	 	 	 
	SECTION 10.11 Successors and Assigns
	 	 	112	 
	 
	 	 	 	 
	SECTION 10.12 Sale and Transfer of Loans; Participations in Loans and Commitments
	 	 	112	 
	 
	 	 	 	 
	v







 









 






	 	 	 	 	 
	 	 	PAGE	 
	SECTION 10.13 Other Transactions
	 	 	115	 
	 
	 	 	 	 
	SECTION 10.14 Forum Selection and Consent to Jurisdiction
	 	 	115	 
	 
	 	 	 	 
	SECTION 10.15 Waiver of Jury Trial
	 	 	116	 
	 
	 	 	 	 
	SECTION 10.16 Judgment Currency
	 	 	117	 
	 
	 	 	 	 
	SECTION 10.17 Confidentiality
	 	 	117	 
	 
	 	 	 	 
	SECTION 10.18 Independence of Covenants and Default Provisions
	 	 	118	 
	 
	 	 	 	 
	SECTION 10.19 Counsel Representation
	 	 	118	 
	 
	 	 	 	 
	SECTION 10.20 No Immunity
	 	 	118	 
	 
	 	 	 	 
	SECTION 10.21 Patriot Act
	 	 	119	 
	 
	 	 	 	 
	SECTION 10.22 Joint and Several Obligations
	 	 	119	 
	 
	 	 	 	 
	SECTION 10.23 Amendment and Restatement
	 	 	119	 






Exhibit A-1 — Borrowing Request

Exhibit A-2 — Issuance Request

Exhibit A-2-I — Letter of Credit

Exhibit B-1 — Closing Date Certificate

Exhibit B-2 — Restatement Effective Date Certificate

Exhibit C — Compliance Certificate

Exhibit D — Continuation/Conversion Notice

Exhibit E — Intercreditor Agreement

Exhibit F — Lender Assignment Agreement

Exhibit G — Promissory Note

Exhibit H — Borrowers’ Counsel Opinion

Exhibit I — Other Counsel Opinion

Exhibit J — Solvency Certificate

Exhibit K — Reaffirmation Agreement




Schedule I — Disclosure Schedule

Schedule II — Lender Percentages and Offices




Item 5.1.4(D) — Restatement Effective Date Collateral Documents

Item 5.1.4(E) — Post Closing Date Collateral Documents




vi









 







AMENDED AND RESTATED CREDIT AGREEMENT




     THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 6, 2008, is among AEI, an
exempted company with limited liability incorporated in the Cayman Islands (formerly known as
Ashmore Energy International, the “Cayman Borrower”), AEI FINANCE HOLDING LLC, a Delaware
limited liability company (the “U.S. Borrower” and, together with the Cayman Borrower,
each, a “Borrower” and, together, the “Borrowers”), CREDIT SUISSE, CAYMAN ISLANDS
BRANCH, as administrative agent (in such capacity, the “Administrative Agent”), Revolving
LC Issuer and Synthetic LC Issuer, and JPMORGAN CHASE BANK, N.A., as collateral agent (in such
capacity, the “Collateral Agent”).



W I T N E S S E T H:




     WHEREAS, the Borrowers, the various financial institutions and other Persons from time to time
parties thereto, the Administrative Agent, the Collateral Agent, Credit Suisse Securities (USA) LLC
and J.P. Morgan Securities, Inc., as joint lead arrangers, joint bookrunners and joint syndication
agents (in such capacity, the “Joint Lead Arrangers”), and Credit Suisse Securities (USA)
LLC, as sole structuring and sole documentation agent (in such capacity, the “Documentation
Agent”), are parties to that certain Credit Agreement, dated as of March 30, 2007, as amended
by that certain First Amendment, dated as of April 23, 2007 (the “First Amendment”), and as
further amended by that certain Second Amendment, Waiver and Consent, dated as of May 31, 2007 (the
“Second Amendment” and the Credit Agreement, as amended by the First Amendment and the
Second Amendment, the “Existing Credit Agreement”); and



     WHEREAS, pursuant to the Second Amendment, the Required Lenders consented to the
implementation of one or more letter of credit sub-facilities for the issuance of letters of credit
in an aggregate amount not to exceed $200,000,000 by one or more issuing bank(s) through an
amendment to the Existing Credit Agreement on terms and conditions reasonably satisfactory to
Lenders holding more than 50% of the outstanding principal amount of the Commitments in respect of
Revolving Loans and the Synthetic Revolving Facility Available Amount (such Lenders, collectively,
the “Required Revolving Lenders”), the Administrative Agent and each such issuing bank;



     WHEREAS, the Issuing Banks agree to issue the letters of credit described above on terms and
subject to the conditions described herein;



     WHEREAS, the Required Revolving Lenders consent to amend and restate the Existing Credit
Agreement in its entirety to: (i) provide for the issuance of Revolving Letters of Credit and
Synthetic Letters of Credit as provided herein; and (ii) make certain other changes as more fully
set forth herein, which amendment and restatement shall become effective upon the Restatement
Effective Date as defined herein;



     WHEREAS, the Required Revolving Lenders have, on or prior to the Restatement Effective Date,
authorized the Administrative Agent to execute this Agreement on their behalf;



 









 





     WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation
of the obligations and liabilities of the parties under the Existing Credit Agreement and that this
Agreement amend and restate in its entirety the Existing Credit Agreement; and



     WHEREAS, it is the intent of parties hereto to confirm that all obligations of the Borrower
and each Guarantor under the Credit Agreement, as amended hereby, and the other Loan Documents
shall continue in full force and effect and that, from and after the Restatement Effective Date,
all references to the “Credit Agreement” contained therein shall be deemed to refer to this
Agreement;



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



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




     SECTION 1.1 Defined Terms. The following terms (whether or not underscored) when used in this
Agreement, including its preamble and recitals, shall, except where the context otherwise requires,
have the following meanings (such meanings to be equally applicable to the singular and plural
forms thereof):



     “Administrative Agent” is defined in the preamble and includes each other
Person appointed as the successor Administrative Agent pursuant to Section 9.4.



     “Affected Lender” is defined in Section 4.10.



     “Affiliate” of any Person means any other Person which, directly or indirectly,
controls, is controlled by or is under common control with such Person. “Control” of a Person
means the power, directly or indirectly, (a) to vote 10% or more of the Capital Securities (on a
fully diluted basis) of such Person having ordinary voting power for the election of directors,
managing members or general partners (as applicable) or (b) to direct or cause the direction of the
management and policies of such Person (whether by contract or otherwise); provided that
none of the “Purchasers” identified in the Note Purchase Agreement (as in effect on the Effective
Date) shall be “Affiliates” of the Cayman Borrower or any of its Subsidiaries.



     “Agents” means the Administrative Agent and the Collateral Agent.



     “Agreement” means, on any date, this Amended and Restated Credit Agreement as in
effect on the Restatement Effective Date and as thereafter from time to time amended, supplemented,
amended and restated or otherwise modified from time to time and in effect on such date.



     “Alternate Base Rate” means, on any date and with respect to all Base Rate Loans, a
fluctuating rate of interest per annum (rounded upward, if necessary, to the next highest 1/16 of
1%) equal to the higher of



     (a) the Base Rate in effect on such day; and



2









 





     (b) the Federal Funds Rate in effect on such day plus 1/2 of 1%.



Changes in the rate of interest on that portion of any Loans maintained as Base Rate Loans will
take effect simultaneously with each change in the Alternate Base Rate. The Administrative Agent
will give notice promptly to the Borrowers and the Lenders of changes in the Alternate Base Rate;
provided, that the failure to give such notice shall not affect the Alternate Base Rate in
effect after such change.



     “Applicable Law” means all applicable laws, statutes, ordinances, codes, rules,
regulations, regulatory norms, administrative resolutions, orders and decrees of a Governmental
Authority.



     “Applicable Margin” means with respect to (a) all Loans maintained as Base Rate Loans,
1.75% per annum and (b) all Loans maintained as LIBO Rate Loans, 3.00% per annum.



     “Approved Bank” means any bank that has a credit rating of A3 or higher from Moody’s
or A- or higher from S&P.



     “Approved Fund” means any Person (other than a natural Person) that (a) is or will be
engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course, and (b) is administered or managed by a Lender, an
Affiliate of a Lender or a Person or an Affiliate of a Person that administers or manages a Lender.



     “Ashmore” means Ashmore Investment Management Limited.



     “Assumption Agreement” is defined in Section 2.6(d)(ii).



     “Authorized Officer” means, relative to each Borrower and each Guarantor, those of its
officers, general partners or managing members (as applicable) whose signatures and incumbency
shall have been certified to the Administrative Agent and the Lenders pursuant to
Section 5.1.1(b) or pursuant to a certificate delivered to the Administrative Agent and the
Lenders after the Closing Date in form and substance satisfactory to the Administrative Agent.



     “Base Rate” means, at any time, the rate of interest then most recently established by
the Administrative Agent in New York as its base rate for Dollars loaned in the United States. The
Base Rate is not necessarily intended to be the lowest rate of interest determined by the
Administrative Agent in connection with extensions of credit.



     “Base Rate Loan” means a Loan bearing interest at a fluctuating rate determined by
reference to the Alternate Base Rate.



     “Base Return” means, in respect of the Synthetic Revolving Deposits for any Investment
Period, an amount equal to the sum of the product calculated for each day during such Investment
Period of (x) the aggregate amount of the Synthetic Revolving Deposits as of such day less the
principal amount of Synthetic Revolving Loans that have not been reimbursed
pursuant to Section 2.1.3(d)(i) as of such day multiplied by (y) the difference of (i)
the LIBO



3









 







Rate (Reserve Adjusted) for such Investment Period if such Synthetic Revolving Deposits
were deemed to be a LIBO Rate Loan hereunder (exclusive of any Applicable Margin that would
otherwise be applicable thereto) minus (ii) an amount equal to ten basis points per annum, in each
case, computed on the basis of a year of 360 days and payable for the actual number of days elapsed
occurring during such Investment Period.



     “Borrowers” is defined in the preamble.



     “Borrowing Request” means a Loan request and certificate duly executed by an
Authorized Officer of the Cayman Borrower substantially in the form of Exhibit A-1 hereto.



     “Bridge Credit Agreement” means the Credit Agreement, dated as of May 23, 2006, among
the Cayman Borrower, the Lenders referred to therein, ABN AMRO Bank N.V., as Administrative Agent,
and LaSalle Bank National Association, as Collateral Agent.



     “Business Day” means (a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New York, New York or Luxembourg
and (b) relative to the making, continuing, prepaying or repaying of any LIBO Rate Loans, any day
which is a Business Day described in clause (a) above and which is also a day on which
dealings in Dollars are carried on in the London interbank eurodollar market.



     “Call Premium” is defined in Section 3.1.1(h).



     “Capital Expenditures” means, for any Person for any period, the aggregate amount of
(a) all expenditures of such Person and its Subsidiaries on a consolidated basis for fixed or
capital assets made during such period which, in accordance with GAAP, would be classified as
capital expenditures and (b) Capitalized Lease Liabilities incurred by such Person and its
Subsidiaries during such period. For purposes of this definition, the purchase price of any plant,
property or equipment that is purchased with, or reimbursed by, the trade-in of existing plant,
property or equipment, or with insurance proceeds or condemnation proceeds, shall be reduced by the
credit granted by the seller of such property, plant or equipment being traded in at such time, or
the amount of such insurance proceeds or condemnation proceeds, as the case may be.



     “Capital Securities” means, with respect to any issuer, all shares, interests,
participations or other equivalents (however designated, whether voting or non-voting) of such
issuer’s capital, whether now existing or issued after the Closing Date, including common shares,
preferred shares, membership interests in a limited liability company, limited or general
partnership interests in a partnership or any other equivalent of such ownership interest.



     “Capitalized Lease Liabilities” means, with respect to any Person, all monetary
obligations of such Person and its Subsidiaries under any leasing or similar arrangement which have
been (or, in accordance with GAAP, should be) classified as capitalized leases, and for purposes of
each Loan Document the amount of such obligations shall be the capitalized amount thereof,
determined in accordance with GAAP, and the stated maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date upon which such
lease may be terminated by the lessee without payment of a premium or a penalty.



4









 





     “Cash Collateralized” means, with respect to any letter of credit, the deposit of
immediately available funds maintained by the issuer of such letter of credit (or its designated
agent), in an amount equal to not less than 100% of the face amount of such letter of credit.



     “Cash Equivalent Investment” means, at any time, any of the following entered into in
the ordinary course of business and not for speculative purposes:




     (a) any direct obligation of (or unconditionally guaranteed by) any of the following:




     (i) the United States, a State thereof (or any agency or political subdivision
thereof, to the extent such obligations are supported by the full faith and credit
of the United States or a State thereof), maturing not more than one year after such
time,




     (ii) any member state of the European Union on the Closing Date, maturing not
more than one year after such time, that is rated Aa2 or higher by Moody’s or AA- or
higher by S&P, or




     (iii) with respect to Cash Equivalent Investments made by any Person whose
principal place of business is not in the United States or such a member state of
the European Union, the government of the jurisdiction of such Person’s principal
place of business 732 days after such time;




     (b) commercial paper maturing not more than 270 days from the date of issue, which is
issued by (i) a Person (other than an Affiliate of the Cayman Borrower or any of its
Subsidiaries) organized under the laws of any State of the United States or of the District
of Columbia or of any member state of the European Union, and rated A1 or higher by S&P or
P-1 or higher by Moody’s, or (ii) any Lender (or its holding company);




     (c) any certificate of deposit, time or demand deposits, bankers acceptance, export
notes or other obligations or undertakings, maturing not more than 732 days after its date
of issuance, which is issued or guaranteed by either:




     (i) any bank organized under the laws of the United States (or any State
thereof), or any member state of the European Union on the Closing Date, and which
has (A) a credit rating of A2 or higher from Moody’s or A or higher from S&P and (B)
a combined capital and surplus greater than $500,000,000,




     (ii) with respect to Cash Equivalent Investments made by any Person whose
principal place of business is in a jurisdiction other than the United States or
such a member state of the European Union, a bank operating such other jurisdiction
that either (A) has a long-term local currency rating of A2 or higher from Moody’s,
A or higher from S&P or A or higher from Fitch, or (B) is ranked (by any applicable
governmental regulatory authority or by any reputable, non-governmental ranking
organization) as one of the top three banks in such jurisdiction (ranked by total
assets),



5









 






     (iii) any bank (or any class or type of bank), to the extent that any
Subsidiary of the Cayman Borrower is required by the terms of any of its
Indebtedness to maintain any deposits with such bank (or a bank of such class or
type), but only to the extent so required,




     (iv) any bank to the extent that any Subsidiary of the Cayman Borrower
maintains any deposits with such bank in the ordinary course of business, so long as
no such deposit is outstanding for longer than 14 days, or




     (v) any bank located in the jurisdiction of any business owned by the Cayman
Borrower so long as the aggregate outstanding amount of all investments maintained
at such bank pursuant to this clause (c)(v) does not exceed $2,000,000 at
any time;




     (d) any repurchase agreement having a term of 365 days or less entered into with any
Lender or any commercial banking institution satisfying the criteria set forth in clause
(c)(i) which (i) is secured by a fully perfected security interest in any obligation of
the type described in clause (a) and (ii) has a market value at the time such
repurchase agreement is entered into of not less than 100% of the repurchase obligation of
such commercial banking institution thereunder;




     (e) shares of money market mutual funds or similar funds which invest exclusively in
assets of the type described in clauses (a) through (d) (other than
clauses (a)(iii), (c)(iii), (c)(iv) or (c)(v) above);




     (f) with respect to any Subsidiary of the Cayman Borrower that has received financing
on a project-finance basis and any other Subsidiary located in the same jurisdiction as such
project-finance Subsidiary, any investment with cash permitted by terms of the loan
documentation governing such project financing and which is pledged to the lenders under
such loan documentation; or




     (g) deposits with banks that have (A) a credit rating of A2 or higher from Moody’s or A
or higher from S&P or A or higher from Fitch or is ranked (by any applicable governmental
regulatory authority or by any reputable, non-governmental ranking organization) as one of
the top three banks in such jurisdiction (ranked by total assets) and (B) a combined capital
and surplus greater than $500,000,000, which deposits are made by Subsidiaries for purposes
of servicing accounts payable and accounts receivable.



     “Casualty Event” means the damage, destruction or condemnation, as the case may be, of
property of any Person or any of its Subsidiaries.



     “Cayman Borrower” is defined in the preamble.



     “Change in Control” means at any time, (i) any person or group (within the meaning of
Sections 13(d) and 14(d) under the Exchange Act), other than (a) the funds managed by Ashmore and
(b) each of the other shareholders of the Cayman Borrower as of the date of this Agreement



6









 







shall become the ultimate “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of Capital Securities representing 50% or more of the
Capital Securities of the Cayman Borrower on a fully diluted basis, by means other than pursuant to
or following an initial public offering of the Capital Securities of the Cayman Borrower and (ii)
the Cayman Borrower shall cease to beneficially own and control 100% of the membership and other
equity ownership interests in the U.S. Borrower.



     “Closing Date” means the date on which each of the conditions precedent set forth in
Section 5.1. were satisfied or waived and the Term Loans and Synthetic Revolving Deposits
were made, such date being March 30, 2007.



     “Closing Date Certificate” means the closing date certificate executed and delivered
by an Authorized Officer of the Borrowers, substantially in the form of Exhibit B-1 hereto.



     “Closing Date Projections” means the projections described in Item 6.5(b) of
the Disclosure Schedule hereto.



     “Code” means the Internal Revenue Code of 1986, and the regulations thereunder, in
each case as amended, reformed or otherwise modified from time to time.



     “Collateral Agent” means JPMorgan Chase Bank, N.A., in its capacity as collateral
agent hereunder, and each other Person appointed as the successor Collateral Agent pursuant to
Section 9.4.



     “Collateral Coverage Ratio” means, on any date, the ratio of (i) total assets of the
Cayman Borrower, less current liabilities (other than the current portion of Stand-alone Senior
Secured Debt) of the Cayman Borrower to (ii) Stand-alone Senior Secured Debt.



     “Commitment” means, relative to any Lender, such Lender’s obligation (if any) to make
Loans and/or Synthetic Revolving Deposits pursuant to Section 2.1 and/or to participate in
any Letter of Credit pursuant to Section 2.5.1.



     “Commitment Increase” is defined in Section 2.6(a).



     “Commitment Termination Date” means the date on which any Commitment Termination Event
occurs. Upon such date, the Commitments shall terminate automatically and without any further
action.



     “Commitment Termination Event” means




     (a) the occurrence of any Event of Default with respect to either Borrower described in
Section 8.1.9; or




     (b) the occurrence and continuance of any other Event of Default and either




     (i) the declaration of all or any portion of the Loans to be due and payable
pursuant to Section 8.3, or



7









 






     (ii) the giving of notice by the Administrative Agent, acting at the direction
of the Required Lenders, to the Borrowers that the Commitments have been terminated.



     “Communications” is defined in Section 9.11.



     “Compliance Certificate” means a certificate duly completed and executed by an
Authorized Officer of the Cayman Borrower, substantially in the form of Exhibit C hereto,
together with such changes thereto as the Administrative Agent may reasonably request for the
purpose of monitoring compliance with the financial covenants contained herein.



     “Consolidated Debt” means, on any date, the outstanding principal amount of all
Indebtedness of the Cayman Borrower and its Subsidiaries (calculated on a consolidated basis in
accordance with GAAP) of the types referred to in clause (a), clause (b),
clause (c) and clause (g) of the definition of “Indebtedness” (other than any
Subordinated Debt) and any Contingent Liability in respect of any of the foregoing.



     “Consolidated EBITDA” means, for any Person for any applicable period, the sum of:




     (a) such Person’s Consolidated Net Income, plus




     (b) to the extent deducted in determining such Person’s Consolidated Net Income, the
sum of (i) amounts attributable to amortization, (ii) income tax and franchise tax expense
(to the extent based on such Person’s income), (iii) such Person’s Consolidated Interest
Expense, (iv) depreciation, depletion, impairment and abandonment of assets, and (v)
minority interests,



     provided that the following shall be excluded from the calculation of Consolidated
EBITDA:




     (A) any gains and losses (whether cash or non-cash) on the sale of assets not in the
ordinary course of business,




     (B) other non-cash items (such other non-cash items to include realized or unrealized
non-cash currency exchange gain or loss),




     (C) any extraordinary or non-recurring item or expense (whether cash or non-cash), and




     (D) any non-cash payments made by the Cayman Borrower in respect of its long-term
incentive payment arrangements (including the Cayman Borrower’s sales incentive plan and
stock incentive plan, in each case, as in effect on the Closing Date).



     “Consolidated Interest Expense” means, for any applicable period, the aggregate
accrued interest expense of the Cayman Borrower and its Subsidiaries (calculated on a consolidated
basis in accordance with GAAP) for such period, including the portion of any payments made in
respect of Capitalized Lease Liabilities allocable to interest expense.



8









 





     “Consolidated Leverage Ratio” means, as of the last day of any period of four
consecutive Fiscal Quarters, the ratio of:




     (a) Consolidated Net Debt outstanding on the last day of such period, to




     (b) Consolidated EBITDA for such period (provided that, for the purposes of
calculating the Consolidated Leverage Ratio, Consolidated EBITDA for the Fiscal Quarter
ending March 31, 2006 shall be deemed to be $256,000,000, Consolidated EBITDA for the Fiscal
Quarter ending June 30, 2006 shall be deemed to be $181,000,000 and Consolidated EBITDA for
the fiscal quarter ending September 30, 2006 shall be deemed to be $187,000,000).



     “Consolidated Net Debt” means, on any date, Consolidated Debt less cash and Cash
Equivalent Investments held by the Cayman Borrower or its Subsidiaries, whether or not restricted.



     “Consolidated Net Income” means, for any Person for any period, the aggregate of all
amounts which would be included as net income on the consolidated financial statements of such
Person and its Subsidiaries for such period (as determined in accordance with GAAP).



     “Contingent Liability” means any agreement, undertaking or arrangement by which any
Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise (including by reason of such Person being a general
partner of another Person), to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness of any other
Person (other than by endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the Capital Securities of any other Person. The
amount of any Person’s obligation under any Contingent Liability shall (subject to any limitation
set forth therein) be deemed to be the outstanding principal amount of the debt, obligation or
other liability guaranteed thereby.



     “Continuation/Conversion Notice” means a notice of continuation or conversion and
certificate duly executed by an Authorized Officer of the applicable Borrower, substantially in the
form of Exhibit D hereto.



     “Controlled Group” means all members of a controlled group of corporations and all
members of a controlled group of trades or businesses (whether or not incorporated) under common
control which, together with the Cayman Borrower, are treated as a single employer under Section
414(b) or 414(c) of the Code or Section 4001 of ERISA.



     “Cuiaba Intercompany Debt” means all outstanding amounts owing by (a) EPE – Empresa
Produtora de Energia Ltda. in respect of intercompany loans from Enron Netherlands Holding B.V.
(which loans were assigned to Enron Corp. and subsequently assigned to the Cayman Borrower) and EPE
Holding Ltd., (b) Gasocidente do Mato Grosso Ltda. in respect of an intercompany loan from Enron
Netherlands Holdings B.V. (which loans were assigned to Enron Corp. and subsequently assigned to
the Cayman Borrower) and (c) Gas Oriente Boliviano Ltda. in respect of an intercompany loan from
Prisma Energy International Bolivia Holding



9









 







Limited (which loans were assigned to Prisma Energy Luxembourg S.à r.l. and subsequently
assigned to Prisma Energy Spain, S.L.).



     “Cuiaba/Shell Intercompany Debt” means all outstanding amounts owing by (a) EPE –
Empresa Produtora de Energia Ltda. in respect of intercompany loans from Shell International
Investments Limited, (b) Gasocidente do Mato Grosso Ltda. in respect of an intercompany loan from
Shell Gas International Investments Limited and (c) Gas Oriente Boliviano Ltda. in respect of an
intercompany loan from Shell Gas Latin America B.V.



     “Deemed Disbursements Collateral Account” means the Deemed Revolving LC Disbursements
Collateral Account and the Deemed Synthetic LC Disbursements Collateral Account.



     “Deemed Revolving LC Disbursements Collateral Account” is defined in Section
2.5.4(d).



     “Deemed Synthetic LC Disbursements Collateral Account” is defined in Section
2.5.4(e).



     “Default” means any Event of Default or any condition, occurrence or event which,
after notice or lapse of time or both, would constitute an Event of Default.



     “Disbursement” is defined in Section 2.5.2.



     “Disbursement Date” is defined in Section 2.5.2.



     “Disclosure Schedule” means the Disclosure Schedule attached to the Existing Credit
Agreement as Schedule I as supplemented on the Restatement Effective Date to the extent
described in the definition of “Security Agreements” in this Section 1.1.



     “Disposition” (or similar words such as “Dispose”) means, with respect to any
Person, any sale, transfer, lease, contribution or other conveyance (including by way of merger)
of, or the granting of options, warrants or other rights to, any of such Person’s assets (including
accounts receivable and Capital Securities of Subsidiaries) to any other Person in a single
transaction or series of transactions.



     “Documentation Agent” is defined in the recitals.



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



     “Domestic Office” means the office of a Lender designated as its “Domestic Office” on
Schedule II hereto or in a Lender Assignment Agreement, or such other office within the
United States as may be designated from time to time by notice from such Lender to the
Administrative Agent and the Borrowers.



     “Effective Date” means March 30, 2007.



     “Entitled Person” is defined in Section 10.16.



10









 





     “Environmental Laws” means all applicable statutes, laws, ordinances, codes, rules and
regulations (including consent decrees and administrative orders) relating to public health and
safety (with respect to exposure to Hazardous Materials) and protection of the environment.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto of similar import, together with the regulations thereunder, in each case
as in effect from time to time. References to Sections of ERISA also refer to any successor
Sections thereto.



     “Event of Default” is defined in Section 8.1.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Excluded Subsidiary” means a Subsidiary that represents directly or through direct or
indirect ownership interest in any other Person less than 3.5% of the Consolidated EBITDA of the
Cayman Borrower and its Subsidiaries for the most recently ended Fiscal Year.



     “Existing Credit Agreement” is defined in the recitals.



     “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to (a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York or (b) if
such rate is not so published for any day which is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day on such transactions received by
the Administrative Agent from three federal funds brokers of recognized standing selected by it.



     “Fee Letter” means, the confidential Fee Letter, dated January 31, 2007, among the
Cayman Borrower, Credit Suisse Securities (USA) LLC and J.P. Morgan Securities, Inc.



     “First Amendment” is defined in the recitals.



     “Fiscal Quarter” means a quarter ending on the last day of March, June, September or
December.



     “Fiscal Year” means any period of twelve consecutive calendar months ending on
December 31; references to a Fiscal Year with a number corresponding to any calendar year
(e.g., the “2007 Fiscal Year”) refer to the Fiscal Year ending on December 31 of such
calendar year.



     “Fitch” means Fitch, Inc.



     “F.R.S. Board” means the Board of Governors of the Federal Reserve System or any
successor thereto.



11









 





     “GAAP” means generally accepted accounting principles in the United States from time
to time.



     “GAAP Change” is defined in Section 1.4(b).



     “Governmental Authority” means the government of the United States or any other nation
or any political subdivision of any thereof, whether provincial, state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other Person exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.



     “Guarantor” means each of (a) AEI Nicaragua Holdings Ltd. (formerly known as Prisma
Energy Nicaragua Holdings Ltd.), (b) AEI Colombia Ltd., (c) AEI Colombia Holdings Ltd. (formerly
known as Prisma Energy Colombia Holdings Ltd.), (d) AEI Luxembourg Global, S.à r.l. (formerly known
as Prisma Energy Global Investments S.à r.l.), (e) AEI Brazil Power Holdings Ltd. (formerly known
as Prisma Energy Brazil Power Holdings Ltd.), (f) AEI Brazil PD Holdings Ltd. (formerly known as
Prisma Energy Brazil PD Holdings Ltd.), (g) ETB – Energia Total do Brasil Ltda., (h) AEI Brazil
Finance Ltd. (formerly known as Prisma Energy Brazil Finance Ltd.), (i)  AEI Financing LLC
(formerly known as Ashmore Energy International Financing LLC), (j)  AEI LLC (formerly known as
Ashmore Energy International LLC), (k) AEI Dominican Republic Ltd. (formerly known as Prisma Energy
Dominican Republic Ltd.), (l) AEI Dominican Republic Operations Ltd. (formerly known as Prisma
Energy Dominican Republic Operations Ltd.), (m) AEI Dominicana Holdings Limited (formerly known as
Prisma Energy Dominicana Holding Limited), (n) AEI Guatemala Holdings Ltd. (formerly known as
Prisma Energy Guatemala Holdings Ltd.), (o) AEI Asia, Ltd., (p) AEI Peru Holdings Ltd., (q) AEI
Central America Ltd., (r) AEI Andean Holdings Ltd., (s) AEI Colombia Investments Ltd. and (t) to
the extent not prohibited by applicable law or any contractual limitation applicable to it, each
newly acquired or formed Subsidiary (acquired or formed after the Closing Date) that is a top-tier
holding company Subsidiary of the Cayman Borrower holding (directly or indirectly) the Capital
Securities of any operating-level company of the Cayman Borrower.



     “Guaranty” means the (i) Guaranty by each Guarantor (other than ETB – Energia Total do
Brasil Ltda.) and (ii) Guaranty by ETB – Energia Total do Brasil Ltda., in each case, dated as of
the Closing Date, in favor of the Collateral Agent, for the benefit of the Secured Parties.



     “Hazardous Material” means any pollutant or contaminant or hazardous, dangerous or
toxic chemical, waste, material or substance (including any petroleum product) within the meaning
of any applicable statute, law, regulation, code, rule, ordinance or requirement (including consent
decrees and administrative orders) of any Governmental Authority relating to or imposing liability
or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material,
all as amended.



     “Hedging Agreement” means, with respect to any Person, collectively, any agreement
that sets forth any Hedging Obligations of such Person or any of its Subsidiaries that is entered
into by such Person or any of its Subsidiaries and under which the counterparty of such agreement
is (or at the time such agreement was entered into, was) a Lender or an Affiliate of a Lender.



12









 





     “Hedging Obligations” means, with respect to any Person, all liabilities of such
Person under currency exchange agreements, interest rate swap agreements, interest rate cap
agreements
and interest rate collar agreements, and all other agreements or arrangements designed to
protect such Person against fluctuations in interest rates, currency exchange rates or commodity
prices. For purposes of the definition of “Indebtedness” in this Section 1.1, the net
amount of any Hedging Obligations on any date shall be the net amount payable (if any) by such
Person on such date if such Hedging Obligations were to be terminated or unwound on such date.



     “herein,” “hereof,” “hereto,” “hereunder” and similar terms
contained in any Loan Document refer to such Loan Document as a whole and not to any particular
Section, paragraph or provision of such Loan Document.



     “Immaterial Guarantor” means any Guarantor other than a Material Guarantor.



     “Impermissible Qualification” means any qualification or exception to the opinion or
certification of any independent public accountant as to any financial statement




     (a) which is of a “going concern” or similar nature;




     (b) which relates to the limited scope of examination of matters relevant to such
financial statement; or




     (c) which relates to the treatment or classification of any item in such financial
statement and which, as a condition to its removal, would require an adjustment to such item
the effect of which would cause an Event of Default to occur.



     “including” and “include” means including without limiting the generality of
any description preceding such term, and, for purposes of each Loan Document, the parties hereto
agree that the rule of ejusdem generis shall not be applicable to limit a general statement, which
is followed by or referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.



     “Increase Date” is defined in Section 2.6(a).



     “Indebtedness” of any Person means:




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




     (b) all obligations, contingent or otherwise, relative to the face amount of all
letters of credit, whether or not drawn, and banker’s acceptances issued for the account of
such Person (provided that, except for purposes of Section 8.1.5,
“Indebtedness” shall not include (x) any letter of credit listed on Item 7.2.2 of
the Disclosure Schedule, and any renewals or replacements thereof to the extent not
increasing the face amount thereof, and (y) any additional letters of credit issued after
the Closing Date, in an aggregate face amount not to exceed $50,000,000, in the case of each
of clauses (x) and (y), to the extent that such letters of credit are Cash
Collateralized);




13












 






     (c) all Capitalized Lease Liabilities of such Person other than power purchase
agreements and fuel supply and transportation agreements that are treated as such;




     (d) all obligations secured by any Lien expressly granted by such Person on any
property or assets owned or held by such Person regardless of whether the obligations
secured thereby shall have been assumed by such Person or is nonrecourse to the credit of
such Person; provided, that the amount of any Indebtedness of others that
constitutes Indebtedness of such Person solely by reason of this clause shall, in the event
that such Indebtedness is limited recourse to such property (without recourse to such
Person), for purposes of this Agreement, be equal to the lesser of the amount of such
obligation and the fair market value of the property or assets to which the Lien attaches,
determined in good faith by such Person;




     (e) net Hedging Obligations of such Person;




     (f) whether or not so included as liabilities in accordance with GAAP, all obligations
of such Person to pay the deferred purchase price of property or services (excluding trade
accounts payable in the ordinary course of business which are not overdue for a period of
more than 90 days or, if overdue for more than 90 days, as to which a dispute exists and
adequate reserves in conformity with Local GAAP have been established on the books of such
Person);




     (g) obligations arising under Synthetic Leases; and




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



     The Indebtedness of any Person shall include the Indebtedness of any other Person (including
any partnership in which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person’s ownership interest in or other relationship with such Person,
except to the extent the terms of such Indebtedness provide that such Person is not liable
therefor.



     “Indemnified Liabilities” is defined in Section 10.5.



     “Indemnified Parties” is defined in Section 10.5.



     “Intercreditor Agreement” means an Intercreditor Agreement among the Administrative
Agent, the Collateral Agent, the Borrowers and the other parties referred to in Section
9.13, substantially in the form of Exhibit E hereto, as the same may be amended,
supplemented, amended and restated or otherwise modified from time to time.



     “Interest Period” means, relative to any LIBO Rate Loan, the period beginning on (and
including) the date on which such LIBO Rate Loan is made or continued as, or converted into, a LIBO
Rate Loan pursuant to Sections 2.3 or 2.4 and shall end on (but exclude) the day
which numerically corresponds to such date one, two, three or six months thereafter (or, if such
month has no numerically corresponding day, on the last Business Day of such month), or any period



14









 







shorter than one month that is agreed to by each of the Lenders, as the applicable Borrower may
select in its relevant notice pursuant to Sections 2.3 or 2.4; provided,
however, that




     (a) the Borrowers shall not be permitted to select Interest Periods to be in effect at
any one time which have expiration dates occurring on more than five different dates;




     (b) if such Interest Period would otherwise end on a day which is not a Business Day,
such Interest Period shall end on the next following Business Day (unless such next
following Business Day is the first Business Day of a calendar month, in which case such
Interest Period shall end on the Business Day next preceding such numerically corresponding
day); and




     (c) no Interest Period for any Loan may end later than the Stated Maturity Date for
such Loan.




“Investment” means, relative to any Person,




     (a) any loan, advance or extension of credit made by such Person to any other Person,
including the purchase by such Person of any bonds, notes, debentures or other debt
securities of any other Person; and




     (b) any Capital Securities held by such Person in any other Person.


The amount of any Investment shall be the original principal or capital amount thereof less all
returns of principal or equity thereon and shall, if made by the transfer or exchange of property
other than cash, be deemed to have been made in an original principal or capital amount equal to
the fair market value of such property at the time of such Investment.




     “Investment Period” means, relative to any Synthetic Revolving Deposits earning a
Participation Fee, the period (a) beginning on (and including) the later of (i) the date on which
such Synthetic Revolving Deposit is made and (ii) the last day of the immediately preceding
Investment Period and (b) ending on (but excluding) the day which numerically corresponds to such
date three months thereafter; provided, however, that (x) if any such Investment
Period would otherwise end on a day which is not a Business Day, such Investment Period shall end
on the preceding Business Day and (y) the first Investment Period after the Effective Date shall
comprise the period beginning on (and including) the Effective Date and ending on June 30, 2007.



     “Issuance Request” means a request for issuance of a Letter of Credit and certificate
duly executed by an Authorized Officer of the Cayman Borrower substantially in the form of
Exhibit A-2 hereto.



     “Issuing Bank” means a Revolving LC Issuer or a Synthetic LC Issuer, as the case may
be.



     “Joint Lead Arrangers” is defined in the recitals.



15









 





     “judgment currency” is defined in Section 10.16.



     “Lender” means each financial institution and other Person that is a “Lender” under
and as defined in the Existing Credit Agreement immediately prior to the Restatement Effective
Date, and any other Person that becomes a party to this Agreement pursuant to a Lender Assignment
Agreement.



     “Lender Assignment Agreement” means an assignment agreement substantially in the form
of Exhibit F hereto.



     “Lender’s Environmental Liability” means any and all losses, liabilities, obligations,
penalties, claims, litigation, demands, defenses, costs, judgments, suits, proceedings, damages
(including punitive or consequential damages), disbursements or expenses of any kind or nature
whatsoever (including reasonable attorneys’ fees and experts’ fees and disbursements and expenses
incurred in investigating, defending against or prosecuting any investigation, litigation, claim or
proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against the
Administrative Agent, the Collateral Agent, any Lender or any of such Person’s Affiliates,
shareholders, directors, officers, employees, and agents in connection with or arising from:




     (a) any Hazardous Material on, in, under or affecting all or any portion of any
property of the Cayman Borrower or any of its Subsidiaries, the groundwater thereunder, or
any surrounding areas thereof or, to the extent caused by releases from such Borrower’s or
any of its Subsidiaries’, any of their respective predecessors’ properties;




     (b) any investigation, claim, litigation or proceeding related to personal injury
arising from exposure or alleged exposure to Hazardous Materials handled by the Cayman
Borrower or any of its Subsidiaries;




     (c) any misrepresentation, inaccuracy or breach of any warranty, contained or referred
to in Section 6.12;




     (d) any violation or claim of violation by the Cayman Borrower or any of its
Subsidiaries of any Environmental Laws; or




     (e) the imposition of any Lien for damages caused by or the recovery of any costs for
the cleanup, release or threatened release of Hazardous Material by the Cayman Borrower or
any of its Subsidiaries, or in connection with any property owned or formerly owned by the
Cayman Borrower or any of its Subsidiaries.



     “Letter of Credit” means, as the context may require, a Revolving Letter of Credit
and/or a Synthetic Letter of Credit.



     “LIBO Rate” means, with respect to any LIBO Rate Loan for any Interest Period, the
rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on
the date that is two Business Days prior to the beginning of the relevant Interest Period by
reference to the British Bankers’ Association Interest Settlement Rates for deposits in Dollars (as



16









 







set forth by the Bloomberg Information Service or any successor thereto or any other service
selected by the Administrative Agent which has been nominated by the British Bankers’ Association
as an authorized information vendor for the purpose of displaying such rates) for a
period equal to such Interest Period; provided that, to the extent that an interest
rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate”
shall be the interest rate per annum determined by the Administrative Agent to be the average of
the rates per annum at which deposits in Dollars are offered for such relevant Interest Period to
major banks in the London interbank market in London, England by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the beginning
of such Interest Period.



     “LIBO Rate Loan” means, with respect to any Loan to be made, continued or maintained
as, or converted into, a LIBO Rate Loan for any Interest Period, a Loan bearing interest, at all
times during an Interest Period applicable to such Loan, at a rate of interest determined by
reference to the LIBO Rate (Reserve Adjusted).



     “LIBO Rate (Reserve Adjusted)” means, relative to any Loan to be made, continued or
maintained as, or converted into, a LIBO Rate Loan for any Interest Period, a rate per annum
determined pursuant to the following formula:



	 	 	 	 	 	 	 	 	 
	 

	 	LIBO Rate
	 	=
	 	LIBO Rate
 

	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	(Reserve Adjusted)
	 	 	 	1.00 - LIBOR Reserve Percentage	 	 





The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans will be determined by
the Administrative Agent on the basis of the LIBOR Reserve Percentage in effect two Business Days
before the first day of such Interest Period.




     “LIBOR Office” means the office of a Lender designated as its “LIBOR Office” on
Schedule II hereto or in a Lender Assignment Agreement, or such other office designated
from time to time by notice from such Lender to the Borrowers and the Administrative Agent, whether
or not outside the United States, which shall be making or maintaining the LIBO Rate Loans of such
Lender.



     “LIBOR Reserve Percentage” means, relative to any Interest Period for LIBO Rate Loans,
the reserve percentage (expressed as a decimal) equal to the maximum aggregate reserve requirements
(including all basic, emergency, supplemental, marginal and other reserves and taking into account
any transitional adjustments or other scheduled changes in reserve requirements) specified under
regulations issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of or including “Eurocurrency Liabilities,” as currently defined in
Regulation D of the F.R.S. Board, having a term approximately equal or comparable to such Interest
Period.



     “Lien” means any security interest, mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in
property, or other priority or preferential arrangement of any kind or nature whatsoever, (and,
with respect to any Capital Securities, any subscriptions, options, warrants, or calls relating to
any shares of such



17









 







Capital Securities, including any right of conversion or exchange under any
outstanding security or other instrument) to secure payment of a debt or performance of an
obligation.



     “Loan” means the Term Loans, the Revolving Loans and the Synthetic Revolving Loans.



     “Loan Documents” means, collectively, this Agreement, the Notes, each Hedging
Agreement, the Fee Letter, the Security Agreements, each Guaranty, any Intercreditor Agreement
(when executed), each agreement pursuant to which the Collateral Agent is granted a Lien to secure
the Obligations and each other agreement, certificate, document or instrument to which either
Borrower or any Guarantor is a party required to be delivered in connection with any Loan Document,
and each other agreement or document to which either Borrower or any Guarantor is a party that
amends, modifies or otherwise waives any provision of any other Loan Document.



     “Local GAAP” means, (a) in the context of the Borrowers, GAAP, and (b) in the context
of a Subsidiary of the Cayman Borrower incorporated or organized under the laws of a particular
jurisdiction, generally accepted accounting principles in such jurisdiction from time to time.



     “Material Adverse Effect” means any of the following:




     (a) a material adverse effect on the rights and remedies of any Secured Party under any
Loan Document to which either Borrower or any Guarantor is a party,




     (b) a material adverse effect on the ability of either Borrower or any Guarantor to
perform its Obligations under any Loan Document,




     (c) a material adverse effect on the business, assets, liabilities, operations,
condition (financial or otherwise), operating results or prospects of the Cayman Borrower
and its Subsidiaries (taken as a whole), or




     (d) a change in regulatory status of the Cayman Borrower or any of its Subsidiaries, or
the regulatory environment in which any of them operates that has a material adverse effect
on the Cayman Borrower or its Subsidiaries (taken as a whole),


but in any event, excluding any such effect generally applicable to participants in the industry in
which the Cayman Borrower and its Subsidiaries operate (other than those that affect the Cayman
Borrower and its Subsidiaries in a disproportionate manner as compared to other companies in
similar businesses).




     “Material Guarantor” means each Guarantor that is not an Excluded Subsidiary.



     “Minority Interest Portion” means, in respect of any amount received by any Person,
the portion of such amount which such Person is contractually or legally obligated to pay, transfer
or distribute to a third party equity holder of such Person that is not a direct or indirect
Subsidiary of the Cayman Borrower, and all taxes actually paid or withheld by such Person or
estimated by such Person to be payable in cash or withheld in connection with such portion.



18









 





     “Modifications” is defined in Section 7.2.12.



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



     “Net Casualty Proceeds” means, with respect to any Casualty Event, the amount of any
insurance proceeds (other than proceeds of business interruption insurance or similar insurance)
or condemnation awards received by the Cayman Borrower or any of its Subsidiaries in
connection with such Casualty Event in excess of $5,000,000 over the course of a Fiscal Year (net
of all reasonable and customary collection expenses thereof), but excluding (i) any proceeds or
awards applied to repair or reinstate the assets affected by such Casualty Event (or to make a
reimbursements in respect thereof), (ii) any proceeds or awards required to be paid to a creditor
(other than the Lenders) which holds a Lien permitted by Section 7.2.3(c) on the property
which is the subject of such Casualty Event, (iii) all taxes actually paid or estimated by the
Cayman Borrower (or the applicable Subsidiary) to be payable in cash within the next 21 months in
connection with such proceeds or awards, (iv) payments made by the Cayman Borrower or any of its
Subsidiaries to retire (or amounts required to be held as collateral for) Indebtedness (other than
the Loans and any other Indebtedness of the Cayman Borrower) where payment of such Indebtedness is
required in connection with such Casualty Event proceeds or awards, and (v) the Minority Interest
Portion of any proceeds or awards received; provided, however, that if the amount
of any estimated taxes pursuant to clause (iii) or clause (iv) exceeds the amount
of taxes actually required to be paid in cash in respect of such Casualty Event proceeds or awards,
the aggregate amount of such excess shall constitute Net Casualty Proceeds.



     “Net Debt Proceeds” means, with respect to the incurrence, sale or issuance by the
Cayman Borrower or any of its Subsidiaries of any Indebtedness after the Closing Date (other than
Indebtedness permitted by Section 7.2.2(c), (d), (e), (f),
(g), (i), (j), (k), (l) and (m)), the excess of:



     (a) the gross cash proceeds received by such Person from such incurrence, sale or
issuance in excess of $25,000,000 in the aggregate over the course of a Fiscal Year,
less



     (b) the sum of (i) all reasonable and customary arranging or underwriting commissions
and legal, investment banking, brokerage and accounting and other professional fees, sales
commissions and disbursements and other reasonable and customary closing costs and expenses
actually incurred in connection with such incurrence, sale or issuance which have not been
paid to Affiliates of the Cayman Borrower or any of its Subsidiaries in connection
therewith, (ii) all taxes actually paid or estimated by the Cayman Borrower (or the
applicable Subsidiary) to be payable in cash within the next 21 months in connection with
such incurrence, sale or issuance and (iii) the Minority Interest Portion (if any) of any
proceeds received.



     “Net Disposition Proceeds” means the gross cash proceeds received by the Cayman
Borrower or any of its Subsidiaries from any Disposition (other than a Disposition pursuant to
Section 7.2.11(d), Section 7.2.11(e), Section 7.2.11(g) and Section
7.2.11(h)) and any cash payment received in respect of promissory notes or other non-cash
consideration delivered to the Cayman Borrower or any of its Subsidiaries in respect thereof in
excess of $25,000,000 in the



19









 







aggregate over the course of a Fiscal Year, less the sum of
(i) all reasonable and customary legal, investment banking, brokerage and accounting fees and
expenses incurred in connection with such Disposition, (ii) all taxes actually paid or estimated by
the Cayman Borrower to be payable in cash within the next 21 months in connection with such
Disposition, (iii) payments made by the Cayman Borrower or any of its Subsidiaries to retire
Indebtedness (other than the Loans and any other Indebtedness of the Cayman Borrower) where payment
of such Indebtedness is
required in connection with such Disposition, and (iv) the Minority Interest Portion (if any)
of any proceeds or awards received; provided, however, that if the amount of any
estimated taxes pursuant to clause (ii) or clause (iv) exceeds the amount of taxes
actually required to be paid in cash in respect of such Disposition, the aggregate amount of such
excess shall constitute Net Disposition Proceeds.



     “Net Equity Proceeds” means with respect to the sale or issuance after the Closing
Date by the Cayman Borrower or any of its Subsidiaries to any Person of its Capital Securities,
warrants or options or the exercise of any such warrants or options, the sum of the following:




     (a) the gross cash proceeds received by the Cayman Borrower or any of its Subsidiaries
from such sale, exercise or issuance in excess of $25,000,000 in the aggregate over the
course of a Fiscal Year (which $25,000,000 threshold shall not apply for purposes of the
definition of New Equity), less




     (b) the sum of (i) all reasonable and customary underwriting commissions and legal,
investment banking, brokerage and accounting and other professional fees, sales commissions
and disbursements actually incurred in connection with such sale or issuance which have not
been paid to Affiliates of the Cayman Borrower or any of its Subsidiaries in connection
therewith, (ii) all taxes actually paid or estimated by the Cayman Borrower (or the
applicable Subsidiary) to be payable in cash within the next 21 months in connection with
such sale or issuance and (iii) the Minority Interest Portion (if any) of any proceeds
received;


provided, the following shall not constitute Net Equity Proceeds (except for purposes of
the definition of New Equity) (i) the proceeds from any issuance of director’s qualifying shares,
(ii) the proceeds from any issuance of Capital Securities to management or employees of the Cayman
Borrower under any employee stock option or stock purchase plan or employee benefit plan in
existence from time to time, (iii) the proceeds from an underwritten initial public offering
occurring prior to the second anniversary of the Closing Date of the common equity of the Cayman
Borrower, which offering has been registered or qualified for sale in either the United States or
the United Kingdom and proceeds in an aggregate amount not to exceed $400,000,000 from private
issuances of equity of the Cayman Borrower prior to such initial public offering and (iv) proceeds
received by a Subsidiary of the Cayman Borrower (the “Issuing Subsidiary”) that are not
distributed to the Cayman Borrower or any other Subsidiary of the Cayman Borrower other than a
Subsidiary that owns or is owned, directly or indirectly, by such Issuing Subsidiary.




     “New Equity” means, at any time, the sum of the following:



20









 






     (a) the aggregate Net Equity Proceeds from the sale or issuance of Capital Securities
of the Cayman Borrower received by the Cayman Borrower in cash after the Closing Date, and




     (b) the aggregate proceeds of Subordinated Debt that are received by the Cayman
Borrower in cash after the Closing Date.



     “Non-Excluded Taxes” means any Taxes other than net income and franchise Taxes imposed
with respect to any Secured Party by any Governmental Authority under the laws of
which such Secured Party is organized or in which it maintains its principal executive office,
applicable lending office, or where such Secured Party is subject to tax on a net income basis for
a reason other than being a party to this Agreement (including the execution and delivery of this
Agreement and/or performance of its obligations, receipt of payments and/or enforcement of rights
under this Agreement).



     “Note” means a promissory note of the applicable Borrower payable to any Lender, in
the form of Exhibit G hereto (as such promissory note may be amended, endorsed or otherwise
modified from time to time), evidencing the aggregate Indebtedness of such Borrower to such Lender
resulting from outstanding Loans or Synthetic Revolving Deposits, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal thereof.



     “Note Purchase Agreement” means that certain Note Purchase Agreement among the Cayman
Borrower and the purchasers identified therein, dated as of September 6, 2006, or any amendment or
replacement thereof.



     “Obligations” means all obligations (monetary or otherwise, whether absolute or
contingent, matured or unmatured) of the Borrowers arising under or in connection with a Loan
Document and the principal of and premium, if any, and interest (including interest accruing during
the pendency of any proceeding of the type described in Section 8.1.9, whether or not
allowed in such proceeding) on the Loans.



     “Organic Document” means, relative to the Cayman Borrower or any of its Subsidiaries,
as applicable, its certificate of incorporation, by-laws, memorandum and articles of association,
certificate of partnership, partnership agreement, certificate of formation and/or incorporation,
limited liability agreement, operating agreement and all shareholder agreements, voting trusts and
similar arrangements applicable to the Cayman Borrower or such Subsidiary’s Capital Securities.



     “Other Taxes” means any and all stamp, documentary or similar Taxes, or any other
excise or property Taxes or similar levies that arise on account of any payment made or required to
be made under any Loan Document or from the execution, delivery, registration, recording or
enforcement of any Loan Document.



     “Participant” is defined in Section 10.12(e).



     “Participation Fees” is defined in Section 3.2.1(b).



21









 





     “Patriot Act” means the USA PATRIOT Act (Title III of Pub.L. 107-56 (signed into law
October 26, 2001)), as amended and supplemented from time to time.



     “Patriot Act Disclosures” means all documentation and other information that the
Administrative Agent or any Lender reasonably requests to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and regulations, including the
Patriot Act.



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



     “PEC” means a Preferred Equity Certificate issued by a Subsidiary of the Cayman
Borrower organized under the laws of Luxembourg.



     “Pension Plan” means a “pension plan”, as such term is defined in Section 3(2) of
ERISA, which is subject to Title IV of ERISA (other than a multiemployer plan as defined in Section
4001(a)(3) of ERISA), and to which the Cayman Borrower or any of its Subsidiaries or any
corporation, trade or business that is, along with the Cayman Borrower or any of its Subsidiaries,
a member of a Controlled Group, may have liability, including any liability by reason of having
been a substantial employer within the meaning of Section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a contributing sponsor under Section 4069
of ERISA.



     “Percentage” means, relative to any Lender, as of the Closing Date, the applicable
percentage relating to Term Loans, Revolving Loans and/or Synthetic Revolving Deposits set forth
opposite its name on Schedule II hereto under the “Pro Rata Share” column or, thereafter,
set forth in a Lender Assignment Agreement under the heading “Assigned Interest”, as such
percentage may be adjusted from time to time pursuant to Lender Assignment Agreements executed by
such Lender and its Assignee Lender and delivered pursuant to Section 10.12.



     “Permitted Acquisition” means an acquisition (whether pursuant to an acquisition of
Capital Securities, Indebtedness, assets or otherwise) of a business or other Investment in which
the following conditions are satisfied:




     (a) such business is of a nature that the Borrowers will be in compliance with the
covenant set forth in Section 7.2.1 after giving effect to such acquisition; and




     (b) the Borrowers shall have furnished notice to the Administrative Agent of such
acquisition as soon as practicable after the date information concerning such acquisition is
publicly announced and certification that after giving effect to such acquisition and any
Indebtedness incurred in connection therewith, the Borrowers will be in compliance with the
covenants set forth in Section 7.2.4, calculated to give pro forma
effect to such acquisition and any Indebtedness incurred in connection therewith.



     “Permitted Asian Acquisition Indebtedness” means Indebtedness to be incurred by the
Cayman Borrower or one of its Subsidiaries in an aggregate principal amount not to exceed



22









 







$70,000,000 the proceeds of which are to be used to finance the acquisition of interests in certain
Asian operations as contemplated as of the Closing Date.



     “Permitted Liens” is defined in Section 7.2.3.



     “Person” means any natural person, corporation, limited liability company,
partnership, joint venture, association, trust or unincorporated organization, Governmental
Authority or any other legal entity, whether acting in an individual, fiduciary or other capacity.



     “Platform” is defined in Section 9.11(b).



     “Process Agent” is defined in Section 10.14.



     “Promigas” means Promigas S.A. E.S.P., a Colombian company



     “Qualified New Subsidiary” is defined in Section 7.2.2(f).



     “Quarterly Payment Date” means the last Business Day of March, June, September and
December of each year.



     “Rating Agencies” means S&P and Moody’s.



     “Reaffirmation Agreement” means a Reaffirmation Agreement between the Collateral Agent
and the Guarantors, substantially in the form of Exhibit K hereto.



     “Reasonable Efforts” means the reasonable best efforts that a prudent party would use
in similar circumstances in an effort to achieve a desired result reasonably expeditiously,
including (i) the lawful exercise of voting rights or other rights attached to or arising in
connection with Capital Securities held by such party, and (ii) the lawful exercise of rights
granted to any party under any contract (including shareholders agreements or similar agreements);
provided that, Reasonable Efforts shall not require (x) the violation or potential violation of any
law, rule or regulation, or the breach of, or failure to discharge, any contractual, fiduciary or
tortious duty, (y) the taking of any action that would be materially and commercially adverse to
such party, or (z) the payment or provision of any payment to any third party that is commercially
unreasonable (the determination of whether any such payment is commercially unreasonable to be made
in the context of all relevant considerations, including the following: (1) the circumstances in
which such payment would be made, (2) the particular party that would make such payment, (3) the
role that the Person to which such payment would be made has in achieving such desired result (for
example, whether such Person is a creditor of the party, or a holder of equity interests in an
entity in which the party also holds equity interests), and (4) the identity of the Person to which
such payment would be made).



     “Register” is defined in Section 2.5(a).



     “Reimbursement Obligation” is defined in Section 2.5.2(a).



     “Reinvestment Date” is defined in Section 3.1.1(c)(ii).



23









 





     “Replacement Lender” is defined in Section 4.10.



     “Replacement Notice” is defined in Section 4.10.



     “Required Lenders” means, at any time, Lenders holding more than 50% of the
outstanding principal amount of the Loans, the Commitments and the Synthetic Revolving Facility
Available Amount.



     “Required Revolving Lenders” is defined in the recitals.



     “Resource Conservation and Recovery Act” means the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901, et seq., as amended.



     “Restatement Effective Date” means the date on which each of the conditions precedent
set forth in Section 5.2 shall have been satisfied or waived in accordance with the terms
hereof.



     “Restatement Effective Date Certificate” means a certificate executed and delivered by
an Authorized Officer of the Borrowers substantially in the form of Exhibit B-2 hereto.



     “Restricted Payment” means (a) the declaration or payment of any dividend (other than
dividends payable solely in Capital Securities of the Cayman Borrower) on, or the making of any
payment or distribution on account of, or setting apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other acquisition of any class of
Capital Securities of the Cayman Borrower or any of its Subsidiaries or any warrants or options to
purchase any such Capital Securities, whether now or hereafter outstanding, or the making of any
other distribution in respect thereof, either directly or indirectly, whether in cash or property
or obligations and (b) the making of any deposit (including the payment of amounts into a sinking
fund or other similar fund) for any of the foregoing purposes.



     “Revolving Credit Exposure” shall mean, at any time, the aggregate principal amount at
such time of all outstanding Revolving Loans plus the aggregate amount at such time of all
Revolving Letter of Credit Outstandings.



     “Revolving LC Available Amount” means, as of any date, the lesser of (a) $200,000,000
minus the Synthetic LC Available Amount as of such date and (b) the Revolving Loan
Commitment Amount as of such date.



     “Revolving LC Issuer” means, as the context may require, (a) Credit Suisse, Cayman
Islands Branch, in its capacity as the issuer of Revolving Letters of Credit hereunder, and (b) any
other Lender with a Commitment to make Revolving Loans that may become an Issuing Bank pursuant to
Section 2.5.6, with respect to Revolving Letters of Credit issued by such Lender. Each
Revolving LC Issuer may, in its discretion, arrange for one or more Revolving Letters of Credit to
be issued by Affiliates of such Revolving LC Issuer, in which case the term “Revolving LC Issuer”
shall include any such Affiliate with respect to Revolving Letters of Credit issued by such
Affiliate.



     “Revolving Letter of Credit” is defined in Section 2.1.4(a)



24









 





     “Revolving Letter of Credit Outstandings” means, at any time of determination, the sum
of (a) the aggregate Stated Amount of all issued and outstanding Revolving Letters of Credit at
such time plus (b) all outstanding Disbursements made or deemed made in respect of
Revolving Letters of Credit other than any such Disbursements that have been reimbursed or Cash
Collateralized by the Cayman Borrower or deemed to be Revolving Loans pursuant to Section
2.5.2(b) or as to which a Revolving Loan has been made in accordance with Section
2.5.4(c) at such time.



     “Revolving Letter of Credit Participation Fees” is defined in Section
3.2.1(c).



     “Revolving Letter of Credit Participation Obligation” is defined in Section
2.5.1.



     “Revolving Loan” is defined in Section 2.1.2.



     “Revolving Loan Commitment Amount” means $395,000,000, as such amount may be reduced
or increased from time to time in accordance with the terms hereof.



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



     “SEC” means the Securities and Exchange Commission.



     “Second Amendment” is defined in the recitals.



     “Secured Parties” means, collectively, the Lenders, the Administrative Agent, the
Collateral Agent, the Issuing Banks, the Documentation Agent, each Joint Lead Arranger, each
counterparty to a Hedging Agreement that is (or at the time such Hedging Agreement was entered
into, was) a Lender or an Affiliate thereof and, in each case, each of their respective successors,
transferees and assigns.



     “Security Agreements” means, collectively, (a) each of the agreements and documents
described in Item 5.1.4 of the Disclosure Schedule (as supplemented on the
Restatement Effective Date with each of the agreements and documents described in Items
5.1.4(D) and (E) thereof to reflect any amendments or modification to the agreements
and documents described therein) and, (b) each of the agreements and documents required to be
delivered pursuant to Section 7.1.8, in each case as modified and supplemented and in
effect from time to time.



     “Senior Credit Agreement” means the Credit Agreement, dated as of May 23, 2006, among
the Cayman Borrower, the Lenders referred to therein, ABN AMRO Bank N.V., as Administrative Agent,
and LaSalle Bank National Association, as Collateral Agent.



     “Solvent” means, with respect to any Person (that is organized and/or incorporated
under the laws of any particular jurisdiction) on a particular date, that such Person is not, under
the applicable insolvency or bankruptcy law of such jurisdiction, “insolvent” (or such other
analogous term or terms as may be used in such insolvency or bankruptcy laws) as of such date under
such insolvency or bankruptcy laws, which,



25









 






     (a) in the case of any Person organized under the laws of any State of the United
States, means that such Person is “insolvent” as that term is used in §101 of the United
States Bankruptcy Code, and




     (b) in the case of any Person incorporated under the laws of the Cayman Islands, means
that:




     (i) such Person (A) shall have ceased, or threatened to cease, to carry on its
business, (B) shall have stopped payment, or threatened to stop payment, of its
debts, (C) shall be deemed to be unable to pay its debts pursuant to section 95 of
the Cayman Islands Companies Law (2004 Revision), or (D) shall be unable to pay its
debts as they fall due;




     (ii) the value of such Person’s assets shall be less than the amount of its
liabilities (taking into account, for these purposes, the expected value of
contingent and prospective liabilities);




     (iii) such Person shall resolve to be voluntarily wound up;




     (iv) a court of competent jurisdiction shall grant a petition against such
Person for its winding up; or




     (v) any creditor of such Person shall successfully enforce any material
collateral security or levy any distress in respect of a material portion of such
Person’s assets.




“Specified Changes” is defined in Section 1.4.



     “Stand-alone Historic Interest Expense” means, for any period, the Borrowers’
aggregate accrued interest expense for such period, including the portion of any payments made in
respect of Capitalized Lease Liabilities allocable to interest expense, but excluding any accrued
interest expense in respect of the Cayman Borrower’s Subordinated Debt (to the extent interest
expense in respect thereof is paid in kind pursuant to the terms of such Subordinated Debt or is
paid in cash in such period in amounts not in excess of a rate per annum equal to 8%) and any fees
(whether characterized as interest or not) paid in 2006 with respect to the Senior Credit Agreement
and the Bridge Credit Agreement.



     “Stand-alone Interest Coverage Ratio” means, as of the last day of any period of four
consecutive Fiscal Quarters, the ratio of:




     (a) Stand-alone Operating Cash Flow, to




     (b) Stand-alone Historic Interest Expense for such period.



     “Stand-alone Operating Cash Flow” means, for any period, (A) the sum of the following
amounts (determined without duplication), but only to the extent received in cash by the Cayman
Borrower from a Person during such period: (i) dividends paid to the Cayman Borrower by its



26









 







Subsidiaries during such period (other than dividends paid in respect of loans made to the Cayman
Borrower for which credit was received in any prior period in accordance with clause (vi)
below); (ii) consulting and management fees paid to the Cayman Borrower for such period; (iii) tax
sharing payments made to the Cayman Borrower during such period; (iv) interest and other
distributions paid during such period with respect to cash and Cash Equivalent Investments of the
Cayman Borrower; (v) other cash payments made to the Cayman Borrower by its Subsidiaries other than
payments in an amount equal to the aggregate amount released from debt service reserve accounts
upon the issuance of letters of credit for the account of the Cayman Borrower and the benefit of
the beneficiaries of such accounts; and (vi) loans made to the Cayman Borrower from Subsidiaries in
anticipation of the payment of dividends and in respect of which funds for the payment of such
dividends have been set aside for such period, less (B) the sum of the following expenses
(determined without duplication), in each case to the extent paid by the Cayman Borrower during
such period and regardless of whether any such amount was accrued during such period: (i) income
tax expenses of the Cayman Borrower and its
Subsidiaries and (ii) corporate overhead expense (provided that Stand-alone Operating
Cash Flow for the Fiscal Quarter ending March 31, 2006 shall be deemed to be $4,000,000,
Stand-alone Operating Cash Flow for the Fiscal Quarter ending June 30, 2006 shall be deemed to be
$295,000,000 and Stand-alone Operating Cash Flow for the Fiscal Quarter ending September 30, 2006
shall be deemed to be $59,000,000).



     “Stand-alone Senior Secured Debt” means, on any date, the outstanding principal amount
of all Indebtedness of the Borrowers of the types referred to in clause (a), clause
(b), clause (c) and clause (g) of the definition of “Indebtedness” (other than
any Subordinated Debt) and any Contingent Liability in respect of any of the foregoing, which is
secured by any of the assets of the Cayman Borrower or its Subsidiaries other than Indebtedness to
the extent secured by cash collateral.



     “Stated Amount” means, on any date and with respect to any Letter of Credit, the total
amount available to be drawn under such Letter of Credit as of such date. In no event shall the
Stated Amount of any Letter of Credit be increased, without having satisfied the conditions
specified herein, including Section 2.1.4(a) or Section 2.1.5(a), as applicable, or
having obtained the prior written consent of the applicable Issuing Bank.



     “Stated Expiry Date” means, with respect to any Letter of Credit, the date of
expiration of such Letter of Credit as specified thereon.



     “Stated Maturity Date” means (a) with respect to the Term Loans, March 30, 2014 and
(b) with respect to the Revolving Loans, Synthetic Revolving Deposits and Synthetic Revolving
Loans, March 30, 2012.



     “Subic” means Subic Power Corp., a Philippines company.



     “Subordinated Debt” means Indebtedness of the Cayman Borrower or its Subsidiaries (a)
that is unsecured and subordinate to the Obligations, (b) the holders of which Indebtedness have no
right to exercise any remedies against the Cayman Borrower or the collateral securing the
Obligations until all Obligations are paid in full in cash and (c) the holders of which
Indebtedness may not oppose or contest any exercise of remedies by the Collateral Agent or



27









 







Lenders
in respect of the collateral securing the Obligations. For the avoidance of doubt, the
Indebtedness under the Note Purchase Agreement (as in effect on the Effective Date) shall
constitute Subordinated Debt.



     “Subordination Provisions” is defined in Section 8.1.11.



     “Subsidiary” means, with respect to any Person, any other Person of which more than
50% of the outstanding Voting Securities of such other Person (irrespective of whether at the time
Capital Securities of any other class or classes of such other Person shall or might have voting
power upon the occurrence of any contingency) is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more other Subsidiaries of such Person, or by
one or more other Subsidiaries of such Person, provided that




     (a) each Excluded Subsidiary shall be deemed not to be a Subsidiary of either Borrower;
and




     (b) for purposes of Sections 7.2.2, 7.2.3, 7.2.5,
7.2.6, 7.2.8, 7.2.9, 7.2.10, 7.2.11, 7.2.12,
7.2.13, 7.2.14 and 7.2.15, Promigas and its Subsidiaries shall be
deemed not to be a Subsidiary at all times during which Promigas’s senior long-term
unsecured debt has a local credit rating of A+ or higher by Duff & Phelps de Colombia (or
its successor), or an equivalent rating from Moody’s or S&P; provided,
however, that, for purposes of the foregoing provisions of Section 7.2, if
Promigas becomes a Subsidiary after the Closing Date, Promigas shall be deemed to have
become a Subsidiary as a result of a Permitted Acquisition.



     “Supplemental Agent” is defined in Section 9.10(a).



     “Synthetic LC Available Amount” means, as of any date, an amount equal to the
Synthetic Revolving Loan Commitment Amount minus the aggregate principal amount at such
time of all outstanding Synthetic Revolving Loans.



     “Synthetic LC Issuer” means, as the context may require, (a) Credit Suisse, Cayman
Islands Branch, in its capacity as the issuer of Synthetic Letters of Credit hereunder, and (b) any
other Lender with a Synthetic Revolving Deposit that may become an Issuing Bank pursuant to
Section 2.5.6, with respect to Synthetic Letters of Credit issued by such Lender. Each
Synthetic LC Issuer may, in its discretion, arrange for one or more Synthetic Letters of Credit to
be issued by Affiliates of such Synthetic LC Issuer, in which case the term “Synthetic LC Issuer”
shall include any such Affiliate with respect to Synthetic Letters of Credit issued by such
Affiliate.



     “Synthetic Lease” means, as applied to any Person, any lease (including leases that
may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (a)
that is not a capital lease in accordance with GAAP and (b) in respect of which the lessee retains
or obtains ownership of the property so leased for federal income tax purposes, other than any such
lease under which that Person is the lessor.



     “Synthetic Letter of Credit” is defined in Section 2.1.5(a).



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     “Synthetic Letter of Credit Outstandings” means, at any time of determination, the sum
of (a) the aggregate Stated Amount of all issued and outstanding Synthetic Letters of Credit at
such time plus (b) all outstanding Disbursements made or deemed made in respect of
Synthetic Letters of Credit other than any such Disbursements that have been reimbursed or Cash
Collateralized by the Cayman Borrower or deemed to be a Synthetic Revolving Loans pursuant to
Section 2.5.2(c) or as to which a Synthetic Revolving Loan has been made in accordance with
Section 2.5.4(c) at such time.



     “Synthetic Letter of Credit Participation Obligation” is defined in Section
2.5.1.



     “Synthetic Revolving Credit Exposure” shall mean, at any time, the aggregate principal
amount at such time of all outstanding Synthetic Revolving Loans plus the aggregate amount
at such time of all Synthetic Letter of Credit Outstandings.



     “Synthetic Revolving Deposit” is defined in Section 2.1.3(c).



     “Synthetic Revolving Deposit Account” means the account established by the
Administrative Agent or an Affiliate thereof at Credit Suisse, Cayman Islands Branch with the title
“Ashmore Energy International Synthetic Revolving Deposit Account” pursuant to Section
2.1.3(b).



     “Synthetic Revolving Deposit Percentage” means, with respect to any Lender as of any
date, the aggregate amount of such Lender’s Synthetic Revolving Deposit as of such date expressed
as a percentage of the aggregate amount of Synthetic Revolving Deposits of all Lenders as of such
date. The Synthetic Revolving Deposit Percentage of each Lender as of the Closing Date is set
forth opposite its name on Schedule II hereto under the “Pro Rata Share” column.



     “Synthetic Revolving Deposit Return” is defined in Section 2.1.3(e).



     “Synthetic Revolving Deposit Sub-Account” is defined in Section 2.1.3(b).



     “Synthetic Revolving Facility Available Amount” means, as of any date, the Synthetic
Revolving Loan Commitment Amount as of such date, minus the Synthetic Revolving Credit
Exposure as of such date.



     “Synthetic Revolving Loan” is defined in Section 2.1.3(a).



     “Synthetic Revolving Loan Commitment Amount” means $105,000,000, as such amount may be
reduced from time to time in accordance with the terms hereof.



     “Taxes” means all income, stamp or other taxes, duties, levies, imposts, charges,
assessments, fees, deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, and all interest, penalties or similar
liabilities with respect thereto.



     “Term Loan” is defined in Section 2.1.1.



29









 





     “Term Loan Commitment Amount” means $1,000,000,000.



     “Termination Date” means the date on which all Obligations have been paid in full in
cash, all Commitments have been terminated, and all Lenders have been refunded the full amount of
their respective Synthetic Revolving Deposits.



     “Trakya” means Trakya Elektrik Uretim ve Ticaret A.S., a Turkish joint stock company.



     “type” means, relative to any Loan, the portion thereof, if any, being maintained as a
Base Rate Loan or a LIBO Rate Loan.



     “United States” or “U.S.” means the United States of America, its fifty states
and the District of Columbia.



     “U.S. Borrower” is defined in the preamble.



     “Voting Securities” means, with respect to any Person, Capital Securities of any class
or kind ordinarily having the power to vote for the election of directors, managers or other voting
members of the governing body of such Person.



     “Welfare Plan” means a “welfare plan” that is subject to (and as defined in) Section
3(1) of ERISA.



     “wholly owned Subsidiary” means, with respect to any Person, any Subsidiary all of the
outstanding Capital Securities of which (other than any director’s qualifying shares or investments
by foreign nationals mandated by applicable laws) are owned directly or indirectly by such Person.



     SECTION
1.2 Use of Defined Terms. Unless otherwise defined or the context otherwise
requires, terms for which meanings are provided in this Agreement shall have such meanings when
used in each other Loan Document and the Disclosure Schedule.



     SECTION
1.3 Cross-References. Unless otherwise specified, references in a Loan Document to
any Article or Section are references to such Article or Section of such Loan Document, and
references in any Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.



     SECTION
1.4 Accounting and Financial Determinations. Unless otherwise specified, all
accounting terms used in each Loan Document shall be interpreted, and all accounting determinations
and computations thereunder (including under Section 7.2.4 and the definitions used in such
determinations and computations) shall be made, in accordance with GAAP, provided that :



     (a) if either (i) the Required Lenders or (ii) the Borrowers reasonably determine that the use
of GAAP as applied in the preparation of the financial statements for the 2006 Fiscal Year referred
to in Section 7.1.1(b) would result in a distortion of the covenants set forth in said
Sections, and so notify the others (or other, as the case may be) thereof by no later than 90 days



30









 







after the receipt by the Lenders of all of the financial information described in Sections
7.1.1(b) and 7.1.1(c) with respect to the 2006 Fiscal Year, or



     (b) if there occurs after December 31, 2006 any change in GAAP, or any change in the way that
GAAP is applied in the preparation of the financial statements for any Fiscal Year delivered
pursuant to Section 7.1.1 from the way that GAAP was applied in the preparation of the
financial statements for the 2006 Fiscal Year referred to in Section 7.1.1(b) (a “GAAP
Change”) that either (i) the Required Lenders or (ii) the Borrowers reasonably determine would,
if used in making such determinations and computations, result in a distortion of the covenants set
forth in said Sections, and so notify the others (or other, as the case may be) thereof by no later
than 90 days after the receipt by the Lenders of all of the financial information described in
Section 7.1.1,


then the Borrowers and the Lenders shall negotiate in good faith with a view to entering into
amendments to the provisions of this Agreement, that relate to such determinations and calculations
to eliminate such distortions. If the Borrowers and the Lenders shall fail to reach an agreement
with respect to such amendments, the Required Lenders shall specify amendments to the provisions of
this Agreement that relate to such determinations and computations (collectively, the
“Specified Changes”), provided that the Specified Changes shall be made reasonably
and in good faith and, in the case of any Specified Changes made in connection with a GAAP Change,
shall be made with the intent of putting the parties to this Agreement in the same respective
positions in which they would have been had there been no GAAP Change.




     Unless otherwise expressly provided, all financial covenants and defined financial terms shall
be computed on a consolidated basis for the Cayman Borrower and its Subsidiaries, in each case
without duplication.



     SECTION 1.5 Treatment of Certain Non-consolidated or Non-controlled Subsidiaries. Anything
to the contrary in Article VII or Article VIII notwithstanding, the Borrowers agree
to use Reasonable Efforts to cause:




     (a) each Subsidiary of the Cayman Borrower listed under the heading “Cuiaba Structure”
in Item 6.8 of the Disclosure Schedule (but only so long as the Cayman Borrower does
not materially increase the control that it has over the operations of any such Subsidiary
from the level of control that it has on the Closing Date) to comply with the provisions of
Section 7.1,




     (b) Trakya to comply with the provisions of Section 7.1,




     (c) Subic to comply with the provisions of Section 7.1, and




     (d) each Subsidiary of the Cayman Borrower that is acquired by the Cayman Borrower or
its Subsidiaries after the Closing Date to comply with the provisions of Section
7.1, provided that this clause (d) shall apply with respect to any such
Subsidiary only during the six (6) month period immediately following its acquisition;



31









 




provided that any failure of any such Subsidiary described in clause (a),
(b), (c) or (d) to comply with the covenants in said Sections shall not be
a breach of this Agreement (unless the Borrowers shall have failed to comply with its obligation to
use Reasonable Efforts to cause such compliance).




     SECTION 1.6 Subsidiaries’ Submission to Applicable Law and Contractual and Fiduciary
Duties. The Lenders acknowledge that the Cayman Borrower’s Subsidiaries and the Persons
appointed directly or indirectly by the Cayman Borrower to act as officers and directors of such
Subsidiaries are subject to Applicable Law as well as contractual and fiduciary duties. The
foregoing acknowledgement does not in any way limit the obligations of the Borrowers under this
Agreement or the obligations of the Cayman Borrower or any of its Subsidiaries under any
other Loan Document, or limit the rights or remedies of the Lenders under this Agreement or any
other Loan Document.



ARTICLE II

COMMITMENTS, BORROWING PROCEDURES AND NOTES




     SECTION 2.1 Commitments.



     SECTION 2.1.1 Term Loan Commitments. In a single borrowing occurring on the Closing Date,
each Lender agrees that it will make loans (each such loan relative to such Lender, its “Term
Loan”) to the Borrowers in an aggregate amount up to such Lender’s Percentage of the Term Loan
Commitment Amount. No amounts paid or prepaid with respect to the Term Loans may be reborrowed.
The execution and delivery of this Agreement by the Borrowers and the satisfaction of all
conditions precedent pursuant to Article III shall be deemed to constitute the Borrowers’
request to borrow the full amount of the Term Loans on the Closing Date.



     SECTION 2.1.2 Revolving Loan Commitments. From time to time until the date that is the
earlier of (i) the Commitment Termination Date and (ii) 30 days prior to the Stated Maturity Date
in respect of the Revolving Loans, each Lender agrees that, to the extent requested by the Cayman
Borrower in accordance with Section 2.2.2, it will make loans (each such loan relative to
each such Lender, its “Revolving Loan”) to the Cayman Borrower in an amount up to such
Lender’s Percentage of the Revolving Loan Commitment Amount on the terms and subject to the
conditions hereof. On the terms and subject to the conditions hereof, amounts paid or prepaid with
respect to the Revolving Loans may be reborrowed. The Cayman Borrower may, without penalty, upon
giving the Administrative Agent not less than 5 Business Days notice, cancel the whole or any part
(subject to a minimum amount of $5,000,000) of the Commitment related to Revolving Loans. Any
amounts cancelled under the Commitment related to Revolving Loans may not be re-instated and the
Revolving Loan Commitment Amount will be reduced accordingly. Notwithstanding the foregoing, no
Lender (or the Administrative Agent on its behalf) shall be permitted or required to make any
Revolving Loan if, after giving effect thereto, the aggregate Revolving Credit Exposure would
exceed the Revolving Loan Commitment Amount.




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     SECTION 2.1.3 Synthetic Revolving Deposit Account.



     (a) From time to time until the date that is the earlier of (i) the Commitment Termination
Date and (ii) 30 days prior to the Stated Maturity Date in respect of the Synthetic Revolving
Deposits, each Lender with a Synthetic Revolving Deposit acknowledges that, to the extent requested
by the Cayman Borrower in accordance with Section 2.2.3, the Administrative Agent will make
loans, and the Administrative Agent agrees to make such loans (each such loan relative to each such
Lender, its “Synthetic Revolving Loan”) to the Cayman Borrower on such Lender’s behalf, in
an amount up to such Lender’s Synthetic Revolving Deposit Percentage of the Synthetic Revolving
Loan Commitment Amount on the terms and subject to the conditions
hereof. By the making of a Synthetic Revolving Loan, and without any further action on the
part of the Administrative Agent or the Lenders, the Administrative Agent hereby grants to each
Lender on whose behalf the Administrative Agent has made a Synthetic Revolving Loan, and each such
Lender hereby acquires from the Administrative Agent, a participation in such Synthetic Revolving
Loan equal to such Lender’s Synthetic Revolving Deposit Percentage of such Synthetic Revolving
Loan. On the terms and subject to the conditions hereof, amounts paid or prepaid with respect to
the Synthetic Revolving Loans may be reborrowed. The Cayman Borrower may, without penalty, upon
giving the Administrative Agent not less than 5 Business Days notice, cancel the whole or any part
(subject to a minimum amount of $5,000,000) of the Commitment related to Synthetic Revolving
Deposits and the Synthetic Revolving Loans whereupon the Administrative Agent will withdraw amounts
from the Synthetic Revolving Deposit Account and return to each Lender with a Synthetic Revolving
Deposit an amount equal to such Lender’s Synthetic Revolving Deposit Percentage of the amount so
cancelled (as provided in Section 2.1.3(d)(i)); provided that, in no event, shall
the Synthetic Revolving Facility Available Amount be less than zero after giving effect to any such
cancellation. Any amounts cancelled under the Commitment related to Synthetic Revolving Loans and
the Synthetic Revolving Deposits may not be re-instated and the Synthetic Revolving Loan Commitment
Amount will be reduced accordingly. Notwithstanding the foregoing, no Lender, nor the
Administrative Agent on its behalf, shall be permitted or required to make any Synthetic Revolving
Loans if, after giving effect thereto, the aggregate Synthetic Revolving Credit Exposure would
exceed the Synthetic Revolving Loan Commitment Amount.



     (b) On or prior to the Closing Date, the Administrative Agent shall establish the Synthetic
Revolving Deposit Account. The Administrative Agent shall maintain records enabling it to
determine at any time the amount of the interest of each Lender in the Synthetic Revolving Deposit
Account (the interest of each Lender in the Synthetic Revolving Deposit Account, as evidenced by
such records, being referred to as such Lender’s “Synthetic Revolving Deposit
Sub-Account”). The Administrative Agent shall establish such additional Synthetic Revolving
Deposit Sub-Accounts for assignee Lenders as shall be required pursuant to Section 10.12.
No Person (other than the Administrative Agent or any of its sub-agents) shall have the right to
make any withdrawals from the Synthetic Revolving Deposit Account or exercise any other right or
power with respect thereto, except as expressly provided herein. Without limiting the generality
of the foregoing, each party hereto acknowledges and agrees that the Synthetic Revolving Deposits
are and will at all times be solely the property of the Lenders providing Synthetic Revolving
Deposits, and no amount on deposit at any time in the Synthetic Revolving Deposit Account (i) shall
be the property of either Borrower or any Guarantor or (ii) shall constitute collateral under the
Loan Documents. Each Lender with a Synthetic Revolving Deposit agrees that its right, title and
interest with respect to the Synthetic Revolving Deposit




33












 




Account shall be limited to the right to require amounts in its Synthetic Revolving Deposit
Sub-Account to be used as expressly set forth herein and that it will have no right to require the
return of its Synthetic Revolving Deposit other than as expressly provided herein and each Lender
with a Synthetic Revolving Deposit hereby acknowledges that its Synthetic Revolving Deposit
constitutes payment for its requirement to fund Synthetic Revolving Loans pursuant to this
Section 2.1.3 and Reimbursement Obligations pursuant to Section 2.5.2, and that the
Administrative Agent will be extending Synthetic Revolving Loans in reliance on the availability of
such Lender’s Synthetic Revolving Deposits to discharge such Lender’s obligations in accordance
with Section 2.1.3(d) and that each Synthetic LC Issuer will be issuing Synthetic Letters
of Credit in reliance on the availability of such Lender’s Synthetic Revolving Deposits to
discharge such Lender’s obligations in accordance with Section 2.5.2(c). Each Lender with
a Synthetic Revolving Deposit acknowledges that payments of principal of Synthetic Revolving Loans
made by the Cayman Borrower hereunder, following the withdrawal of funds to reimburse the
Administrative Agent or the applicable Synthetic LC Issuer pursuant to Section 2.1.3(d),
will be deposited by the Administrative Agent into the Synthetic Revolving Deposit Account, for
further credit to each such Lender’s Synthetic Revolving Deposit Sub-Account, in satisfaction of
the payment of such principal amount of such Lender’s outstanding Synthetic Revolving Loans. In
addition, each Lender with a Synthetic Revolving Deposit hereby grants to the Administrative Agent
a security interest in its rights and interests in such Lender’s Synthetic Revolving Deposit to
secure the obligations of such Lender under this Agreement. The funding of the Synthetic Revolving
Deposits and the agreements with respect thereto set forth in this Agreement constitute
arrangements solely among the Administrative Agent, each Synthetic LC Issuer and each Lender with a
Synthetic Revolving Deposit with respect to the funding and Reimbursement Obligations of each such
Lender under this Agreement, and do not constitute loans, extensions of credit or other financial
accommodations to either Borrower or any Guarantor.




     (c) The following amounts will be deposited in the Synthetic Revolving Deposit Account at the
following times:




     (i) On the Closing Date, each Lender with a Commitment with respect to
Synthetic Revolving Loans and the Synthetic Revolving Deposits shall deposit in the
Synthetic Revolving Deposit Account an amount in Dollars equal to such Lender’s
Percentage of the Synthetic Revolving Loan Commitment Amount as of the Closing Date
(each amount so deposited, such Lender’s “Synthetic Revolving Deposit”),
which Synthetic Revolving Deposit shall satisfy in full such Lender’s obligation in
respect of its Commitment to fund the Synthetic Revolving Deposit.




     (ii) On any date prior to the Termination Date on which (x) the Administrative
Agent receives any payment of principal of Synthetic Revolving Loans, with respect
to which amounts were withdrawn from the Synthetic Revolving Deposit Account in
accordance with Section 2.1.3(d)(i) to reimburse or pay the Administrative
Agent, subject to Section 2.1.3(c)(iii), the Administrative Agent shall, to
the extent that it has been reimbursed for such Synthetic Revolving Loans as
provided in Section 2.1.3(d)(i), deposit in the Synthetic Revolving Deposit
Account, and credit to the Synthetic Revolving Deposit Sub-Accounts of



34









 







the Lenders with Synthetic Revolving Deposits, the portion of such reimbursed
or other payment in an amount equal to such Lender’s Synthetic Revolving Deposit
Percentage of such payment or (y) the Administrative Agent receives any payment of
principal of Synthetic Revolving Loans, with respect to which amounts were withdrawn
from the Synthetic Revolving Deposit Account in accordance with Section
2.1.3(d)(ii), to reimburse the applicable Synthetic LC Issuer or deposit in the
Deemed Synthetic LC Disbursements Collateral Account, subject to Section
2.1.3(c)(iii), the Administrative Agent shall deposit in the Synthetic Revolving
Deposit Account, and credit to the Synthetic Revolving Deposit Sub-Accounts of the
Lenders with Synthetic Revolving Deposits, such payment in an amount equal to such
Lender’s Synthetic Revolving Deposit Percentage of such payment. Repayments of
Synthetic Revolving Loans that have not been reimbursed to the Administrative Agent
as provided in Section 2.1.3(d)(i) shall be for the account of the
Administrative Agent.




     (iii) If at any time when any amount is required to be deposited in the
Synthetic Revolving Deposit Account under Section 2.1.3(c)(ii) or
Section 2.1.3(c)(iv) the sum of such amount and the aggregate amount of the
Synthetic Revolving Deposits at such time would exceed the Synthetic Revolving Loan
Commitment Amount then in effect, such excess shall not be deposited in the
Synthetic Revolving Deposit Account and the Administrative Agent shall instead pay
to each Lender with a Synthetic Revolving Deposit its Synthetic Revolving Deposit
Percentage of such excess.




     (iv) In the event any amount is payable to the Lenders with a Synthetic
Revolving Deposit pursuant to Section 2.5.4(f) and the aggregate amount of
the Synthetic Revolving Deposits at such time is less than the Synthetic Revolving
Loan Commitment Amount then in effect, the Administrative Agent shall withdraw such
amount from the Deemed Synthetic LC Disbursements Collateral Account and deposit
such amount up to such shortfall in the Synthetic Revolving Deposit Account, and
credit to the Synthetic Revolving Deposit Sub-Accounts of the Lenders with Synthetic
Revolving Deposits, such deposit in an amount equal to such Lender’s Synthetic
Revolving Deposit Account Percentage of such deposit.



     (d) Each Lender with a Synthetic Revolving Deposit irrevocably and unconditionally agrees that
its Synthetic Revolving Deposit in the Synthetic Revolving Deposit Account shall be withdrawn and
distributed as follows:




     (i) In the event the Administrative Agent makes a Synthetic Revolving Loan
pursuant to Section 2.1.3, the Administrative Agent is hereby authorized by
each Lender with a Synthetic Revolving Deposit to withdraw for its own account from
the Synthetic Revolving Deposit Account the amount of such principal, as
reimbursement for each Synthetic Revolving Loan provided by the Administrative Agent
(and debit the Synthetic Revolving Deposit Sub-Account of



35









 







each Lender with a Synthetic Revolving Deposit in the amount of such Lender’s
Synthetic Revolving Deposit Percentage of such Synthetic Revolving Loan).




     (ii) In the event of a Disbursement or a deemed Disbursement of a Synthetic
Letter of Credit, the Administrative Agent is hereby authorized by each Lender with
a Synthetic Revolving Deposit to (x) withdraw for the account of the applicable
Synthetic LC Issuer from the Synthetic Revolving Deposit Account the amount of the
applicable Reimbursement Obligation, as reimbursement for such Disbursement pursuant
to Sections 2.5.1(b) and 2.5.2(a) (and debit the Synthetic Revolving
Deposit Sub-Account of each Lender with a Synthetic Revolving Deposit in the amount
of such Lender’s Synthetic Revolving Deposit Percentage of such Reimbursement
Obligation), in the case of a Disbursement or (y) withdraw for the deposit in the
Deemed Synthetic LC Disbursements Collateral Account from the Synthetic Revolving
Deposit Account the amount required to be paid by the Lenders with Synthetic
Revolving Deposits pursuant to Section 2.5.4(c) (and debit the Synthetic
Revolving Deposit Sub-Account of each Lender with a Synthetic Revolving Deposit in
the amount of such Lender’s Synthetic Revolving Deposit Percentage of such amount),
in the case of a deemed Disbursement.




     (iii) In the event the Cayman Borrower voluntarily decides to permanently
reduce the Synthetic Revolving Loan Commitment Amount, the Administrative Agent will
withdraw from the Synthetic Revolving Deposit Account an amount equal to such
reduction, and pay to each Lender with a Synthetic Revolving Deposit an amount equal
to the product of (A) such Lender’s Synthetic Revolving Deposit Percentage
multiplied by (B) the aggregate amount of such reduction.




     (iv) Concurrently with the effectiveness of any assignment by any Lender with a
Synthetic Revolving Deposit of all or any portion of its Synthetic Revolving
Deposit, the corresponding portion of the assignor’s Synthetic Revolving Deposit
Sub-Account shall be transferred from the assignor’s Synthetic Revolving Deposit
Sub-Account to the assignee’s Synthetic Revolving Deposit Sub-Account in accordance
with Section 10.12 and, if required by Section 10.12, the
Administrative Agent shall close such assignor’s Synthetic Revolving Deposit
Sub-Account.




     (v) Upon the occurrence of the Termination Date (other than the return of the
portion of the Synthetic Revolving Deposit of each applicable Lender with a
Synthetic Revolving Deposit on deposit in the Synthetic Revolving Deposit Account),
all amounts remaining in the Synthetic Revolving Deposit Account shall be returned
by the Administrative Agent to each Lender with a Synthetic Revolving Deposit based
on each such Lender’s Synthetic Revolving Deposit Percentage.



36









 






     (vi) Upon the reduction of each of the Commitments related to Synthetic
Revolving Loans to zero, the Administrative Agent shall withdraw from
the Synthetic Revolving Deposit Account and pay to each Lender with a Synthetic
Revolving Deposit the entire remaining amount of such Lender’s Synthetic Revolving
Deposit, and shall close the Synthetic Revolving Deposit Account.




Each Lender with a Synthetic Revolving Deposit irrevocably and unconditionally
agrees that its Synthetic Revolving Deposit may be applied or withdrawn from time to
time as set forth in this Section 2.1.3(d).



     (e) On each day on which Participation Fees are required to be paid with respect to all or any
portion of the Synthetic Revolving Deposits pursuant to Section 3.2.1(b), the
Administrative Agent shall pay to each Lender with a Synthetic Revolving Deposit an amount (the
“Synthetic Revolving Deposit Return”) equal to (i) the Base Return for the relevant
Investment Period multiplied by (ii) such Lender’s Synthetic Revolving Deposit Percentage. Any
amounts earned and received with respect to Synthetic Revolving Deposits during any applicable
Investment Period in excess of the Base Return shall be for the account of the Administrative
Agent. No Person other than the Administrative Agent shall have any obligation under or in respect
of this Section 2.1.3(e).



     (f) The Cayman Borrower shall have no right, title or interest in or to any of the Synthetic
Revolving Deposits, the Synthetic Revolving Deposit Account or any Synthetic Revolving Deposit
Sub-Account and no obligations in respect thereof (except for the repayment of Synthetic Revolving
Loans as provided herein and the payment of Participation Fees under Section 3.2.1(b)).
Notwithstanding anything to the contrary in this Agreement, the Cayman Borrower shall not be liable
for any losses due to (i) the misappropriation of any Base Return or Synthetic Revolving Deposit or
(ii) the failure of the Administrative Agent to pay the Synthetic Revolving Deposit Return to any
Lender (it being understood and agreed for greater certainty that this clause shall not limit any
obligation of the Cayman Borrower hereunder to pay any Participation Fee). Neither the
Administrative Agent nor any other Person guarantees any rate of return on the investment of any
Synthetic Revolving Deposit held in the Synthetic Revolving Deposit Account.



     (g) In the event any payment of a Synthetic Revolving Loan shall be required to be refunded by
the Administrative Agent to the Cayman Borrower after the return of the Synthetic Revolving
Deposits to the applicable Lenders as permitted hereunder, each such Lender agrees to acquire and
fund a participation in such refunded amount equal to the lesser of its Synthetic Revolving Deposit
Percentage thereof and the amount of its Synthetic Revolving Deposit that shall have been so
returned.



     SECTION 2.1.4 Revolving Letters of Credit.



     (a) Subject to the terms and conditions hereof, including the satisfaction of those conditions
in Section 5.3, from time to time on any Business Day occurring from and after the
Restatement Effective Date until the date which is thirty days prior to the Stated Maturity Date in
respect of Revolving Loans, upon the request of the Cayman Borrower, the applicable Revolving LC
Issuer will:



37









 






     (i) issue one or more standby letters of credit, substantially in the form of
Exhibit A-2-I hereto, together with such changes as may be acceptable to the
applicable Issuing Bank (each, a “Revolving Letter of Credit”), for the account of
the Cayman Borrower in the Stated Amount requested by the Cayman Borrower on such Business
Day and otherwise permitted hereunder;




     (ii) extend the Stated Expiry Date of an existing Revolving Letter of Credit previously
issued hereunder; or




     (iii) increase the Stated Amount of an existing Revolving Letter of Credit previously
issued by such Revolving LC Issuer hereunder in amounts requested by the Cayman Borrower and
otherwise permitted hereunder;


provided that this Section 2.1.4(a) shall not be construed to impose an obligation
upon such Revolving LC Issuer to issue any Revolving Letter of Credit that is inconsistent with the
terms and conditions of this Agreement.




     (b) The Stated Expiry Date of each Revolving Letter of Credit shall be the earlier of (i) the
date that is one year after the date of the issuance of such Revolving Letter of Credit and
(ii) the date that is five Business Days prior to the Stated Maturity Date in respect of Revolving
Letters of Credit, unless such Revolving Letter of Credit expires by its terms on an earlier date;
provided, however, that a Revolving Letter of Credit may, upon the request of the
Cayman Borrower, include a provision whereby such Revolving Letter of Credit shall be renewed
automatically for additional consecutive periods of 12 months or less (but not beyond the date that
is five Business Days prior to the Stated Maturity Date in respect of Revolving Letters of Credit)
unless the applicable Revolving LC Issuer notifies the beneficiary thereof at least 30 days prior
to the then-applicable expiration date that such Revolving Letter of Credit will not be renewed.



     (c) Notwithstanding anything to the contrary contained in this Section 2.1.4, none of
the Revolving LC Issuers shall be permitted or required to issue any Revolving Letter of Credit or
increase the Stated Amount of any existing Revolving Letter of Credit if, after giving effect
thereto, (i) the aggregate Revolving Letter of Credit Outstandings would exceed the Revolving LC
Available Amount, (ii) the aggregate Revolving Credit Exposure would exceed the Revolving Loan
Commitment Amount or (iii) any Default or Event of Default has occurred and is continuing.



     (d) Within the foregoing limits, and subject to the terms and conditions hereof, the Cayman
Borrower’s ability to obtain Revolving Letters of Credit shall be fully revolving, and accordingly,
the Cayman Borrower may obtain Revolving Letters of Credit to replace Revolving Letters of Credit
that have expired or that have been drawn upon and reimbursed.



     SECTION 2.1.5 Synthetic Letters of Credit.



     (a) Subject to the terms and conditions hereof, including the satisfaction of those conditions
in Section 5.3, from time to time on any Business Day occurring from and after the
Restatement Effective Date until the date which is thirty days prior to the Stated Maturity Date in



38









 







respect of Synthetic Revolving Loans, upon the request of the Cayman Borrower, the applicable
Synthetic LC Issuer will:




     (i) issue one or more standby letters of credit, substantially in the form of
Exhibit A-2-I hereto, together with such changes as may be acceptable to the
applicable Issuing Bank (each, a “Synthetic Letter of Credit”), for the account of
the Cayman Borrower in the Stated Amount requested by the Cayman Borrower on such Business
Day and otherwise permitted hereunder;




     (ii) extend the Stated Expiry Date of an existing Synthetic Letter of Credit previously
issued hereunder; or




     (iii) increase the Stated Amount of an existing Synthetic Letter of Credit previously
issued hereunder in amounts requested by the Cayman Borrower and otherwise permitted
hereunder;


provided that this Section 2.1.5(a) shall not be construed to impose an obligation
upon such Synthetic LC Issuer to issue any Synthetic Letter of Credit that is inconsistent with the
terms and conditions of this Agreement.




     (b) The Stated Expiry Date of each Synthetic Letter of Credit shall be the earlier of (i) the
date that is one year after the date of the issuance of such Synthetic Letter of Credit and
(ii) the date that is five Business Days prior to the Stated Maturity Date in respect of Synthetic
Letters of Credit, unless such Synthetic Letter of Credit expires by its terms on an earlier date;
provided, however, that a Synthetic Letter of Credit may, upon the request of the Cayman Borrower,
include a provision whereby such Synthetic Letter of Credit shall be renewed automatically for
additional consecutive periods of 12 months or less (but not beyond the date that is five Business
Days prior to the Stated Maturity Date in respect of Synthetic Letters of Credit) unless the
applicable Synthetic LC Issuer notifies the beneficiary thereof at least 30 days prior to the
then-applicable expiration date that such Synthetic Letter of Credit will not be renewed.



     (c) Notwithstanding anything to the contrary contained in this Section 2.1.5, none of
the Synthetic LC Issuers shall be permitted or required to issue any Synthetic Letter of Credit or
increase the Stated Amount of any Synthetic Letter of Credit if, after giving effect thereto, (i)
the aggregate Synthetic Letter of Credit Outstandings would exceed the Synthetic LC Available
Amount, (ii) the aggregate Synthetic Revolving Credit Exposure would exceed the Synthetic Revolving
Loan Commitment Amount or (iii) any Default or Event of Default has occurred and is continuing.



     (d) Within the foregoing limits, and subject to the terms and conditions hereof, the Cayman
Borrower’s ability to obtain Synthetic Letters of Credit shall be fully revolving, and accordingly,
the Cayman Borrower may obtain Synthetic Letters of Credit to replace Synthetic Letters of Credit
that have expired or that have been drawn upon and reimbursed.




39









 




     SECTION 2.2 Borrowing Procedures.



     SECTION 2.2.1 Term Loan Borrowing Procedures. On the terms and subject to the conditions of this Agreement, the Term Loan borrowing shall
comprise Base Rate Loans. On or before 11:00 a.m. on the Closing Date, each Lender shall deposit
with the Administrative Agent immediately available funds in an amount equal to such Lender’s
Percentage of the Term Loan Commitment Amount. Such deposit will be made to an account which the
Administrative Agent shall specify by notice to the Lenders. To the extent funds are received from
the Lenders, the Administrative Agent shall make such funds available to the Borrowers by wire
transfer to the accounts the Borrowers shall have specified in writing to the Administrative Agent.
No Lender’s obligation to make any Loan shall be affected by any other Lender’s failure to make a
Loan.



     SECTION 2.2.2 Revolving Loan Borrowing Procedures. By delivering a Borrowing Request to the Administrative Agent on or before 10:00 a.m. on a
Business Day, the Cayman Borrower may request that a borrowing of Revolving Loans be made (a) with
respect to Base Rate Loans, on such Business Day and (b) with respect to LIBO Rate Loans, on the
third Business Day following delivery of the Borrowing Request. Each Revolving Loan Borrowing
Request shall be irrevocable and shall specify: (i) the aggregate principal amount of such
borrowing and (ii) the date of such borrowing (which shall be a Business Day). The aggregate
principal amount of each Revolving Loan borrowing shall be not less than $2,000,000 and in an
integral multiple of $500,000, or the remainder of the amount available under the Revolving Loan
Commitment Amount. On or before 1:00 p.m. on the date of such borrowing, each Lender shall deposit
with the Administrative Agent immediately available funds in an amount equal to such Lender’s
Percentage of the Revolving Loan Commitment Amount. Such deposit will be made to an account which
the Administrative Agent shall specify by notice to the Lenders. To the extent funds are received
from the Lenders, the Administrative Agent shall make such funds available to the Cayman Borrower
by wire transfer to the accounts the Cayman Borrower shall have specified in its Borrowing Request.
No Lender’s obligation to make any Loan shall be affected by any other Lender’s failure to make a
Loan.



     SECTION 2.2.3 Synthetic Revolving Deposits; Synthetic Revolving Loan Borrowing
Procedures. By delivering a Borrowing Request to the Administrative Agent on or before 10:00 a.m. on a
Business Day, the Cayman Borrower may request that a borrowing of Synthetic Revolving Loans be made
(a) with respect to Base Rate Loans, on such Business Day and (b) with respect to LIBO Rate Loans,
on the third Business Day following delivery of the Borrowing Request. Each Synthetic Revolving
Loan Borrowing Request shall be irrevocable and shall specify: (i) the aggregate principal amount
of such borrowing and (ii) the date of such borrowing (which shall be a Business Day). The
aggregate principal amount of each Synthetic Revolving Loan borrowing shall be not less than
$2,000,000 and in an integral multiple of $500,000, or the remainder of the amount available under
the Synthetic Revolving Loan Commitment Amount.



     SECTION 2.3 Continuation and Conversion Elections. By delivering a Continuation/Conversion Notice to the Administrative Agent on or before 10:00
a.m. on a Business Day, the Borrowers may from time to time irrevocably elect, on not less than one
Business Day’s notice in the case of Base Rate Loans, or three Business Days’ notice in the case of
LIBO Rate Loans, and in either case not more than five Business Days’ notice, that all, or any
portion in an aggregate minimum amount of $1,000,000 and an integral multiple of $1,000,000 be, in
the case of Base Rate Loans, converted into LIBO Rate Loans or be, in the case of LIBO



40









 







Rate Loans,
converted into Base Rate Loans or continued as LIBO Rate Loans (in the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan at least three Business Days (but
not more than five Business Days) before the last day of the then current Interest Period with
respect thereto, such LIBO Rate Loan shall, on such last day, automatically convert to a Base Rate
Loan); provided that (x) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of all Lenders, and (y) no portion of the outstanding principal amount
of any Loans may be continued as, or be converted into, LIBO Rate Loans when any Event of Default
has occurred and is continuing. Notwithstanding anything to the contrary in this Section
2.3, on the third Business Day after the Closing Date, all of the Loans shall be converted into
LIBO Rate Loans with an initial Interest Period of one month, as and to the extent specified in a
Continuation/Conversion Notice delivered to the Administrative Agent on the Closing Date.



     SECTION 2.4 Funding. Each Lender may, if it so elects, fulfill its obligation to make, continue or convert LIBO Rate
Loans hereunder by causing one of its foreign branches or Affiliates (or an international banking
facility created by such Lender) to make or maintain such LIBO Rate Loan; provided that
such LIBO Rate Loan shall nonetheless be deemed to have been made and to be held by such Lender,
and the obligation of the Borrowers to repay such LIBO Rate Loan shall nevertheless be to such
Lender for the account of such foreign branch, Affiliate or international banking facility. In
addition, the Borrowers hereby consent and agree that, for purposes of any determination to be made
for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be
conclusively assumed that each Lender elected to fund all LIBO Rate Loans by purchasing Dollar
deposits in its LIBOR Office’s interbank eurodollar market.



     SECTION 2.5 Letter of Credit Issuance Procedures. In order to request the issuance of a Letter of Credit (or to amend, renew or extend an existing
Letter of Credit), the Cayman Borrower shall hand deliver or fax to the applicable Issuing Bank and
the Administrative Agent (no less than three (3) Business Days (or such shorter period of time
acceptable to the applicable Issuing Bank) in advance of the requested date of issuance, amendment,
renewal or extension) an Issuance Request requesting the issuance of such Letter of Credit, or
identifying the existing Letter of Credit to be amended, renewed or extended, and specifying the
type of Letter of Credit to be issued, the date of requested issuance, amendment, renewal or
extension, the date on which such Letter of Credit is to expire (which shall comply with
Section 2.1.4(b) or 2.1.5(b), as applicable), the amount of such Letter of Credit,
the name and address of the beneficiary thereof and such other information as shall be necessary to
prepare such Letter of Credit.



     SECTION 2.5.1 Participations in Letters of Credit.



     (a) Upon the issuance of each Revolving Letter of Credit (or an increase in the Stated Amount
of any Revolving Letter of Credit), and without any further action on the part of the applicable
Revolving LC Issuer or the Lenders, such Revolving LC Issuer hereby grants to each Lender with a
Commitment to make Revolving Loans, and each such Lender hereby acquires from such Revolving LC
Issuer, a participation in such Revolving Letter of Credit (or increase) equal to such Lender’s
Percentage of the aggregate Stated Amount of such Revolving Letter of Credit (or increase),
effective upon the issuance of such Revolving Letter of Credit (or the effectiveness of such
increase) (each, a “Revolving Letter of Credit Participation Obligation”).



41









 







In consideration and in furtherance of the foregoing, each Lender with a Commitment to make Revolving
Loans hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the
account of the applicable Revolving LC Issuer, such Lender’s Percentage of each Disbursement in
respect of Revolving Letters of Credit made by such Revolving LC Issuer on the date due as provided
in Section 2.5.2. Each Lender with a Commitment to make Revolving Loans acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph in respect of
Revolving Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default or an Event of
Default, and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. The provisions of this Section 2.5.1 shall survive any termination
of this Agreement.



     (b) Upon the issuance of each Synthetic Letter of Credit (or an increase in the Stated Amount
of any Synthetic Letter of Credit), and without any further action on the part of the applicable
Synthetic LC Issuer or the Lenders, such Synthetic LC Issuer hereby grants to each Lender with a
Synthetic Revolving Deposit, and each such Lender hereby acquires from such Synthetic LC Issuer, a
participation in such Synthetic Letter of Credit (or increase) equal to such Lender’s Percentage of
the aggregate Stated Amount of such Synthetic Letter of Credit (or increase), effective upon the
issuance of such Synthetic Letter of Credit (or the effectiveness of such increase) (each, a
“Synthetic Letter of Credit Participation Obligation”). In consideration and in
furtherance of the foregoing, each Lender with a Synthetic Revolving Deposit hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of the applicable
Synthetic LC Issuer, such Lender’s Percentage of each Disbursement in respect of Synthetic Letters
of Credit made by such Synthetic LC Issuer on the date due as provided in Section 2.5.2.
The Synthetic Revolving Deposit of each applicable Lender shall be available for withdrawal by the
Administrative Agent, in the amounts contemplated by and otherwise in accordance with
Section 2.1.3, to reimburse the applicable Synthetic LC Issuer for Disbursements arising in
respect of Synthetic Letters of Credit as and when requested by such Synthetic LC Issuer.



     SECTION 2.5.2 Disbursements.



     (a) The applicable Issuing Bank will notify the Cayman Borrower and the Administrative Agent
promptly upon the presentment for payment of any Letter of Credit issued by such Issuing Bank,
specifying the date (the “Disbursement Date”) on which such payment shall be made (each
such payment, a “Disbursement”). Subject to the terms and provisions of such Letter of
Credit and this Agreement, the applicable Issuing Bank shall make such payment to the beneficiary
(or its designee) of such Letter of Credit and shall notify the Cayman Borrower and the
Administrative Agent of the making of such payment, whereupon, such amount shall be
immediately due and payable by the Cayman Borrower. The obligation of the Cayman Borrower to
pay such amount shall be deemed satisfied by the reimbursement of such amount by the Lenders
pursuant to this Section 2.5.2(a). Prior to 10:00 a.m. on the Disbursement Date, the
Administrative Agent shall, to the extent that it has received a notice of Disbursement from the
applicable Issuing Bank as described above, notify each Lender with a Commitment to make Revolving
Loans (in the case of any Revolving Letter of Credit) or Synthetic Revolving Loans (in the case of
any Synthetic Revolving Letter of Credit) of the making of such payment. Unless



42









 







such amount has
been previously reimbursed by the Cayman Borrower prior to 1:00 p.m. on the Disbursement Date, (i)
in the case of any Disbursement in respect of a Revolving Letter of Credit, each Lender with a
Commitment to make Revolving Loans shall reimburse the applicable Issuing Bank in an amount equal
to such Lender’s Percentage of such Disbursement for all amounts which such Issuing Bank has paid
in connection with such Disbursement and (ii) in the case of any Disbursement in respect of a
Synthetic Letter of Credit, the Administrative Agent shall reimburse the applicable Issuing Bank
for all amounts which such Issuing Bank has paid in connection with such Disbursement (which amount
shall be deemed to be a Synthetic Revolving Loan made in accordance with Section 2.1.3 on
behalf of each Lender with a Synthetic Revolving Deposit in an amount equal to such Lender’s
Percentage of such Disbursement) (each such obligation under clause (i) or clause
(ii) above, a “Reimbursement Obligation”).



     (b) Notwithstanding anything to the contrary contained in Section 2.1.2, each Lender
with a Commitment to make Revolving Loans, upon receipt by the Administrative Agent (for the
benefit of the applicable Issuing Bank) of the payment specified in clause (a)(i) above,
shall be deemed to have made a Revolving Loan to the Cayman Borrower in an amount equal to such
Lender’s pro rata share of the amount of such payment, which shall, until such time
as the Cayman Borrower may deliver a Continuation/Conversion Notice in accordance with
Section 2.3, accrue interest at a rate per annum equal to the rate per annum then in effect
for Base Rate Loans (with the Applicable Margin accruing on such amount) pursuant to
Section 3.2 for the period from the Disbursement Date through the date of repayment or
prepayment, but which shall otherwise be subject to the terms and conditions of the Loan Documents
applicable to Revolving Loans.



     (c) Notwithstanding anything to the contrary contained in Section 2.1.3, each Lender
with a Synthetic Revolving Deposit shall, upon receipt by the applicable Issuing Bank of the
payment specified in clause (a)(ii) above shall be deemed to have made a Synthetic
Revolving Loan to the Cayman Borrower in an amount equal to such Lender’s Synthetic Revolving
Deposit Percentage of such reimbursement payment, which amount shall, until such time as the Cayman
Borrower may deliver a Continuation/Conversion Notice in accordance with Section 2.3,
accrue interest at a rate per annum equal to the rate per annum then in effect for Base Rate Loans
(with the Applicable Margin accruing on such amount) pursuant to Section 3.2 for the period
from the Disbursement Date through the date of repayment or prepayment, but which shall otherwise
be subject to the terms and conditions of the Loan Documents applicable to Synthetic Revolving
Loans.



     SECTION 2.5.3 Reimbursement. The Reimbursement Obligations of each Lender with a Commitment to make Revolving Loans to
reimburse the applicable Revolving LC Issuer pursuant to Section 2.5.2(b), and the right of
each Synthetic LC Issuer to be paid with amounts on deposit in the Synthetic Revolving Deposit
Account pursuant to Section 2.1.3, shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment which any such
Lender may have or have had against any Issuing Bank or any Lender, including any defense based
upon the failure of any Disbursement to conform to the terms of the applicable Letter of Credit
(if, in such Issuing Bank’s good faith



43









 







opinion, such Disbursement is determined to be appropriate)
or any non-application or misapplication by the beneficiary of the proceeds of such Letter of
Credit.



     SECTION 2.5.4 Deemed Disbursements of Letters of Credit.




(a) Upon the acceleration of the Loans pursuant to Section 8.2 or Section 8.3,




     (i) the aggregate Stated Amount of all Revolving Letters of Credit shall, without
demand upon or notice to the Cayman Borrower or any other Person, be deemed to have been
paid or disbursed by each Revolving LC Issuer (notwithstanding that such amount may not in
fact have been paid or disbursed);




     (ii) the Cayman Borrower shall be immediately obligated to deposit into the Deemed
Revolving LC Disbursements Collateral Account the amount deemed to have been so paid or
disbursed by each Revolving LC Issuer; and




     (iii) the Cayman Borrower shall be immediately obligated to deposit with (or for the
benefit of) each Revolving LC Issuer an amount equal to 2% of the amount deemed to have been
paid or disbursed by such Revolving LC Issuer pursuant to the preceding clause (i).




(b) Upon the acceleration of the Loans pursuant to Section 8.2 or Section 8.3,




     (i) the aggregate Stated Amount of all Synthetic Letters of Credit shall, without
demand upon or notice to the Cayman Borrower or any other Person, be deemed to have been
paid or disbursed by each Synthetic LC Issuer (notwithstanding that such amount may not in
fact have been paid or disbursed);




     (ii) the Cayman Borrower shall be immediately obligated to deposit into the Deemed
Synthetic LC Disbursements Collateral Account the amount deemed to have been so paid or
disbursed by each Synthetic LC Issuer; and




     (iii) the Cayman Borrower shall be immediately obligated to deposit with (or for the
benefit of) each Synthetic LC Issuer an amount equal to 2% of the amount deemed to have been
paid or disbursed by such Synthetic LC Issuer pursuant to the preceding clause (i).



     (c) Amounts payable by the Cayman Borrower pursuant to this Section 2.5.4 shall be
deposited in immediately available funds in the Deemed Revolving LC Disbursements Collateral
Account (to the extent relating to a deemed Disbursement under any Revolving Letter of Credit) or
the Deemed Synthetic LC Disbursements Collateral Account (to the extent relating to a deemed
Disbursement under any Synthetic Letter of Credit). Notwithstanding the fact that any conditions
precedent set forth in Section 5.3 have not been satisfied, if and to the extent that the
Cayman Borrower shall fail to make any payment required pursuant to Section 2.5.4(a)(ii),
each Lender with a Commitment to make Revolving Loans shall be immediately obligated to make a
deposit in the Deemed Revolving LC Disbursements Collateral Account in an amount equal to such
Lender’s Percentage of such amount and shall be deemed to have made a Revolving Loan



44









 







to the Cayman
Borrower in an amount equal to the amount so deposited by such Lender, which Revolving Loan shall
be deemed to be a Base Rate Loan. Notwithstanding the fact that any conditions precedent set forth
in Section 5.3 have not been satisfied, if and to the extent that the Cayman Borrower shall
fail to make any payment required pursuant to Section 2.5.4(b)(ii), the Administrative
Agent shall make a deposit in the Deemed Synthetic LC Disbursements Collateral Account in an amount
equal to such payment and each Lender with a Synthetic Revolving Deposit shall be deemed to have
made a Synthetic Revolving Loan to the Cayman Borrower in an amount equal to such Lender’s
Percentage of the amount so deposited by the Administrative Agent, which Synthetic Revolving Loan
shall be deemed to be a Base Rate Loan.



     (d) Upon the first deemed Disbursement as described above in Section 2.5.4(a) above,
the Administrative Agent shall establish an interest-bearing bank account into which the payments
described in Section 2.5.4(a) (and any payment made in respect of such amounts by a Lender
with a Commitment to make Revolving Loans in accordance with Section 2.5.4(c)) shall be
deposited (the “Deemed Revolving LC Disbursements Collateral Account”). The Administrative
Agent shall maintain records enabling it to determine at any time the amount of the interest of
each Revolving LC Issuer in the Deemed Revolving LC Disbursements Collateral Account. No Person
(other than the Administrative Agent in accordance with Section 2.5.4(f)) shall have the
right to make any withdrawals from the Deemed Revolving LC Disbursements Collateral Account or
exercise any other right or power with respect thereto, except as expressly provided herein.
Without limiting the generality of the foregoing, each party hereto acknowledges and agrees that
the amounts in the Deemed Revolving LC Disbursements Collateral Account are and will at all times
be solely for the benefit of the applicable Revolving LC Issuer as security for any Reimbursement
Obligation arising in connection with any Disbursement under any Revolving Letter of Credit.



     (e) Upon the first deemed Disbursement as described above in Section 2.5.4(b), the
Administrative Agent shall establish an interest-bearing bank account into which the payments
described in Section 2.5.4(b) (and any payment made in respect of such amounts by the
Administrative Agent in accordance with Section 2.5.4(c)) shall be deposited (the
“Deemed Synthetic LC Disbursements Collateral Account”). The Administrative Agent shall
maintain records enabling it to determine at any time the amount of the interest of each Synthetic
LC Issuer in the Deemed Synthetic LC Disbursements Collateral Account. No Person (other than the
Administrative Agent in accordance with Section 2.5.4(f)) shall have the right to make any
withdrawals from the Deemed Synthetic LC Disbursements Collateral Account or exercise any other
right or power with respect thereto, except as expressly provided herein. Without limiting the
generality of the foregoing, each party hereto acknowledges and agrees that the amounts in
the Deemed Synthetic LC Disbursements Collateral Account are and will at all times be solely
for the benefit of the Synthetic LC Issuers as security for any payment obligation arising in
connection with any Disbursement under any Synthetic Letter of Credit.



     (f) Amounts in the Deemed Disbursements Collateral Accounts shall be withdrawn and distributed
as described below:




     (i) In the event of a Disbursement with respect to a Letter of Credit for which amounts
have been deposited in the applicable Deemed Disbursements Collateral



45









 







Account pursuant to
this Section 2.5.4 or any of Section 3.1.1(c), 3.1.1(d),
3.1.1(e) or 3.1.1(f)(ii), the Administrative Agent is hereby authorized by
the Borrowers and each Lender with a Commitment to make Revolving Loans or a Synthetic
Revolving Deposit, as applicable, to withdraw from the applicable Deemed Disbursements
Collateral Account for the account of the applicable Issuing Bank the amount of such
Disbursement.




     (ii) In the event that any Letter of Credit, for which amounts have been deposited in
either Deemed Disbursements Collateral Account pursuant to Section 2.5.4(c) by the
applicable Lenders, expires (and is not renewed), with the applicable Stated Amount not
having been reduced to zero by Disbursements, an amount equal to (x) the amounts so
deposited by such Lenders (or the Administrative Agent on behalf of such Lenders)
less (y) any amounts repaid by the Cayman Borrower to such Lenders in connection
with any Revolving Loans or Synthetic Revolving Loans deemed to have been made to such
Lenders pursuant to Section 2.5.4(c), in each case in respect of such Stated Amount
shall be returned to such Lenders, pro rata according to each such Lender’s
proportionate amount of the outstanding Revolving Loans or Synthetic Revolving Loans, as
applicable.




     (iii) If, at any time when no Default or Event of Default has occurred and is
continuing and the Obligations have not been accelerated, the balance in the Deemed
Revolving LC Disbursements Collateral Account or the Deemed Synthetic LC Disbursements
Collateral Account exceeds 102% the aggregate Stated Amounts of all Revolving Letters of
Credit then outstanding or all Synthetic Letters of Credit then outstanding, respectively,
then, after the payment in full in cash of the amounts specified in clause (ii)
above, such excess amounts shall be paid to the Cayman Borrower. If, at any time when a
Default or Event of Default has occurred and is continuing and the Obligations have been
accelerated, the balance in the Deemed Revolving LC Disbursements Collateral Account or the
Deemed Synthetic LC Disbursements Collateral Account exceeds 102% the aggregate Stated
Amounts of all Revolving Letters of Credit then outstanding or all Synthetic Letters of
Credit then outstanding, respectively, then, after the payment in full in cash of the
amounts specified in clause (ii) above, such excess amounts shall be paid (x)
first, if any accelerated Obligations are then outstanding, to the Administrative
Agent for application to such Obligations in accordance with Section 4.7 and (y)
second, if all Obligations have been paid in full, to the Cayman Borrower.
Otherwise any excess amounts described in this clause (iii) shall remain on deposit
in the Deemed Revolving LC Disbursements Collateral Account or the Deemed Synthetic LC
Disbursements Collateral Account, as applicable.




     (iv) Upon the expiration (and non-renewal) of all Letters of Credit, for which amounts
have been deposited in either Deemed Disbursements Collateral Account pursuant to
Section 2.5.4(c), and the payment in full in cash of the amounts specified in
clause (ii) above, any amounts remaining in the Deemed Disbursement Collateral
Accounts shall be paid to the Cayman Borrower.



     SECTION 2.5.5 Nature of Reimbursement Obligations. The Cayman Borrower and, to the extent set forth in Section 2.5.3, each applicable
Lender shall assume all risks of the acts,



46









 







omissions or misuse of any Letter of Credit by the
beneficiary thereof. No Issuing Bank shall be responsible for:



     (a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any Letter of
Credit or any document submitted by any party in connection with the application for and issuance
of a Letter of Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;



     (b) the form, validity, sufficiency, accuracy, genuineness or legal effect of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or the proceeds thereof in whole or in part, which may prove to be invalid or
ineffective for any reason;



     (c) failure of the beneficiary to comply fully with conditions required in order to demand
payment under a Letter of Credit;



     (d) errors, omissions, interruptions or delays in transmission or delivery of any messages, by
mail, cable, telegraph, telex or otherwise; or



     (e) any loss or delay in the transmission or otherwise of any document or draft required in
order to make a Disbursement under a Letter of Credit.


None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers
granted to any Issuing Bank or any Lender hereunder. In furtherance and not in limitation or
derogation of any of the foregoing, any action taken or omitted to be taken by any Issuing Bank in
good faith (and not constituting gross negligence or willful misconduct) shall be binding upon the
Borrowers, and shall not put such Issuing Bank under any resulting liability to any Borrower.




     SECTION 2.5.6 Resignation and Removal of Issuing Bank; Additional Issuing Banks.



     (a) Any Issuing Bank may resign at any time by giving thirty days’ prior written notice to the
Administrative Agent and the Cayman Borrower; provided that at the time of such resignation
another Lender is designated and agrees to act as Synthetic LC Issuer or Revolving LC Issuer under
this Agreement, as applicable. Subject to Section 2.5.5, upon the acceptance of any
appointment as an Issuing Bank hereunder by a Lender with a Commitment to make Revolving Loans, in
the case of Revolving Letters of Credit, or a Lender with a Synthetic Revolving Deposit, in the
case of Synthetic Letters of Credit, that shall agree to serve as successor Issuing Bank, such
successor shall succeed to and become vested with all the interests,
rights and obligations of the retiring Issuing Bank and the retiring Issuing Bank shall be
discharged from its obligations to issue additional Letters of Credit hereunder. At the time such
removal or resignation shall become effective, the Cayman Borrower shall pay all accrued and unpaid
fees pursuant to Section 3.2.1. The acceptance of any appointment as an Issuing Bank
hereunder by a successor Lender shall be evidenced by an agreement entered into by such successor,
in a form satisfactory to the Cayman Borrower and the Administrative Agent, and, from and after the
effective date of such agreement, (i) such successor Issuing Bank shall have all the rights and
obligations of the previous Issuing Bank under this Agreement and the other Loan Documents and (ii)
references herein and in the other Loan Documents to the term “Issuing Bank” shall be deemed to
refer to such successor or to any previous Issuing Bank, or to such



47









 







successor and all previous
Issuing Banks, as the context shall require. Notwithstanding anything contained herein to the
contrary, after the resignation or removal of an Issuing Bank hereunder, the retiring Issuing Bank
shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing
Bank under this Agreement and the other Loan Documents with respect to Letters of Credit issued by
it prior to such resignation or removal, but shall not be required to issue additional Letters of
Credit.



     (b) The Cayman Borrower may, at any time and from time to time with the consent of the
Administrative Agent (which consent shall not be unreasonably withheld or delayed) and such Lender,
designate one or more additional Lenders to act as an issuing bank under the terms of this
Agreement. Any Lender designated as an issuing bank pursuant to this paragraph shall be deemed to
be an “Issuing Bank” (in addition to being a Lender) in respect of Letters of Credit issued or to
be issued by such Lender, and, with respect to such Letters of Credit, such term shall thereafter
apply to the other Issuing Bank and such Lender.



     SECTION 2.6 Register; Notes.



     (a) The Borrowers hereby designate the Administrative Agent to serve as the Borrowers’ agent,
solely for the purpose of this clause, to maintain a register (the “Register”) on which the
Administrative Agent will record each Lender’s Commitment, the Loans made by each Lender and each
repayment in respect of the principal amount of the Loans, annexed to which the Administrative
Agent shall retain a copy of each Lender Assignment Agreement delivered to the Administrative Agent
pursuant to Section 10.12. Failure to make any recordation, or any error in such
recordation, shall not affect the Borrowers’ Obligations. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrowers, the Administrative Agent and the
Lenders shall treat each Person in whose name a Loan is registered (or, if applicable, to which a
Note has been issued) as the owner thereof for the purposes of all Loan Documents, notwithstanding
notice or any provision herein to the contrary. Any assignment or transfer of a Commitment or the
Loans made pursuant hereto shall be registered in the Register only upon delivery to the
Administrative Agent of a Lender Assignment Agreement that has been executed by the requisite
parties pursuant to Section 10.12. No assignment or transfer of a Lender’s Commitment or
Loans shall be effective unless such assignment or transfer shall have been recorded in the
Register by the Administrative Agent as provided in this Section.



     (b) The Borrowers agrees that, upon the request of any Lender, each Borrower will execute and
deliver to such Lender a Note evidencing the Loans made by, and payable to the order of, such
Lender in a maximum principal amount equal to such Lender’s Percentage of the Term Loan Commitment
Amount or Revolving Loan Commitment Amount, as applicable. Each Borrower hereby irrevocably
authorizes each Lender to make (or cause to be made) appropriate notations on the grid attached to
such Lender’s Note (or on any continuation of such grid), which notations, if made, shall evidence,
inter alia, the date of, the outstanding principal amount of, and the interest rate
and Interest Period applicable to the Loans evidenced thereby. Such notations shall, to the extent
not inconsistent with notations made by the Administrative Agent in the Register, be conclusive and
binding on each Borrower absent manifest error; provided that the



48









 







failure of any Lender to
make any such notations or any error in such notations shall not limit or otherwise affect any
Obligations of the Borrowers.



     SECTION 2.7 Increase in Revolving Loan Commitment Amount.



     (a) The Cayman Borrower may, at any time and from time to time, by notice to the
Administrative Agent, request one or more increases in the Revolving Loan Commitment Amount (each,
a “Commitment Increase”) in an aggregate amount up to $105,000,000, to be effective as of a
date to be agreed by the Administrative Agent and the Lenders providing such increase in the
Revolving Loan Commitment Amount (each such date, an “Increase Date”) as specified in the
related notice to the Administrative Agent; provided, however, that (i) on the date
of any request by the Borrower for a Commitment Increase and on the related Increase Date, the
applicable conditions set forth in Section 5.2.4 shall be satisfied, (ii) any increase in
the Revolving Loan Commitment Amount shall be accompanied by a corresponding permanent reduction in
the aggregate Synthetic Revolving Loan Commitment Amount and return of the Synthetic Revolving
Deposits to the applicable Lenders in accordance with their respective Synthetic Revolving Deposit
Percentages, and (iii) no Lender shall have any obligation to participate in any Commitment
Increase. Such notice shall specify each Lender or financial institution agreeing to become a
Lender which will provide such Commitment Increase and its respective share of the Commitment
Increase; provided, however, that the Commitment of each new Lender providing such
Commitment Increase shall not be less than $1,000,000 and each Lender or financial institution
providing any portion of such Commitment Increase shall be reasonably satisfactory to the
Administrative Agent.



     (b) The Cayman Borrower may extend offers to one or more new Lenders to participate in any
portion of the requested Commitment Increase. Each new Lender that participates in a requested
Commitment Increase in accordance with Section 2.6 shall become a Lender party to this
Agreement as of the applicable Increase Date and the Commitment of each Lender participating in
such Commitment Increase shall be increased by the amount allocated to such Lender by the Cayman
Borrower and the Administrative Agent as of such Increase Date and notified to such Lender by the
Administrative Agent; provided, that the Administrative Agent shall have received on or
before the applicable Increase Date the following, each dated such date:




     (i) an assumption agreement from each new Lender, if any, in form and substance
satisfactory to the Cayman Borrower and the Administrative Agent (each an “Assumption Agreement”), duly executed by such new Lender, the Administrative
Agent and the Borrower; and




     (ii) confirmation from each Lender of the increase in the amount of its Commitment,
duly executed by such Lender, the Borrowers and the Administrative Agent.



     (c) On the applicable Increase Date, the Administrative Agent shall (x) notify the existing
Lenders and any new Lenders participating in such Commitment Increase and the Cayman Borrower, on
or before 11:00 a.m., of the occurrence of the applicable Commitment Increase to be effected on the
related Increase Date, (y) record in the Register maintained by the



49









 







Administrative Agent pursuant
to Section 2.5(a) the relevant information with respect to each existing Lender and each
new Lender participating in such Commitment Increase on such date and (z) withdraw from the
Synthetic Revolving Deposit Account and return to each applicable Lender an amount equal to such
Lender’s Synthetic Revolving Deposit Percentage of such Commitment Increase. From and after each
such Increase Date, the Synthetic Revolving Loan Commitment Amount shall be permanently reduced by
the amount of the applicable Commitment Increase.



ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES




     SECTION 3.1 Repayments and Prepayments; Application. The Borrowers agree that the Loans shall be repaid and prepaid pursuant to the following terms.



     SECTION 3.1.1 Repayments and Prepayments. The Borrowers shall repay in full the unpaid principal amount of each Loan (it being understood
that payment of Revolving Loans shall be for the account of the Administrative Agent unless and to
the extent the Administrative Agent shall have been reimbursed by the Lenders in accordance with
Section 2.2.2 and Section 9.2 and that payment of Synthetic Revolving Loans shall
be for the account of the Administrative Agent unless and to the extent the Administrative Agent
shall have been reimbursed by the Lenders in accordance with Section 2.1.3(d)(i)) on the
Stated Maturity Date in respect of such Loan. Prior thereto, payments and prepayments of the Loans
and refunding of the Synthetic Revolving Deposits shall or may be made as set forth below.




(a) Voluntary Prepayments.




     (i) From time to time on any Business Day, without penalty, the Borrowers may
make a voluntary prepayment, in whole or in part, of the outstanding principal
amount of the Loans; provided that (x) all such voluntary prepayments shall
require at least one (or at least three in the case of LIBO Rate Loans) but no more
than five Business Days’ irrevocable prior written notice to the Administrative
Agent; (y) all such voluntary partial prepayments shall be in an
aggregate minimum amount of $5,000,000 (or, in the case of Revolving Loans, the
entire principal amount of the Revolving Loans then outstanding, if such amount is
less than $5,000,000) and an integral multiple of $1,000,000; and (z) each such
prepayment of the Term Loans shall be subject to the Call Premium, if applicable.
Each such irrevocable request in respect of Revolving Loans may be made by telephone
confirmed promptly in writing by hand delivery or facsimile to the Administrative
Agent of the applicable voluntary prepayment.




     (ii) From time to time on any Business Day, without penalty, the Cayman
Borrower may cause the Synthetic Revolving Deposits to be returned to the applicable
Lenders by reducing the Synthetic Revolving Loan Commitment Amount as provided in
Section 2.1.3(a).



50









 






     (b) Scheduled Amortizations; Final Maturity of Revolving Loans and Synthetic
Revolving Loans. (i) On each Quarterly Payment Date occurring beginning with September
2007 through and including the last Quarterly Payment Date occurring prior to the Stated
Maturity Date in respect of the Term Loans, the Borrowers shall make a scheduled repayment
of the aggregate outstanding principal amount of the Term Loans in an amount equal to 1.07%
of the Term Loan Commitment Amount as of the Closing Date and (ii) on the Stated Maturity
Date with respect to the Term Loans, the Borrowers shall make a scheduled repayment of the
then outstanding aggregate principal amount of the Term Loans. On the Stated Maturity Date
in respect of the Revolving Loans, the Cayman Borrower shall make a repayment of the then
outstanding aggregate principal amount of the Revolving Loans. On the Stated Maturity Date
in respect of the Synthetic Revolving Loans, the Cayman Borrower shall make a repayment of
the then outstanding aggregate principal amount of the Synthetic Revolving Loans.




     (c) Disposition/Casualty Proceeds — Generally. In the event either Borrower
receives any Net Disposition Proceeds or Net Casualty Proceeds, such Borrower shall (subject
to the proviso hereto) within three Business Days of such receipt, deliver to the
Administrative Agent a calculation of the amount of such Net Disposition Proceeds or Net
Casualty Proceeds, and such Borrower shall make a mandatory prepayment of the Term Loans (or
if the Term Loans have been repaid in full, prepay the Revolving Loans (and, in respect of
all outstanding Revolving Letters of Credit, make deposits in the Deemed Revolving LC
Disbursements Collateral Account (if such an account has been established) in an amount
equal to the aggregate Stated Amount under such Revolving Letters of Credit if at such time
the conditions to issuance in Section 5.3 are not satisfied) or, if the Revolving
Loans have been repaid in full and there are no outstanding Revolving Letters of Credit (as
to which amounts have not been deposited in the Deemed Revolving LC Disbursements Collateral
Account as provided above), prepay the Synthetic Revolving Loans (and, in respect of all
outstanding Synthetic Letters of Credit, make deposits in the Deemed Synthetic LC
Disbursements Collateral (if such an account has been established) Account in an amount
equal to the aggregate Stated Amount under such Synthetic Letters of Credit if at such time
the conditions to issuance in Section 5.3 are not satisfied)) in an amount equal to
a ratable portion of the amount of such Net Disposition Proceeds or Net Casualty Proceeds
based on all outstanding permitted senior
secured Indebtedness of such Borrower that contains a prepayment provision similar to
this Section 3.1.1(c);




provided that upon written notice by the Cayman Borrower to the Administrative Agent
not more than three Business Days following receipt of any Net Disposition Proceeds or Net
Casualty Proceeds, such proceeds may be retained by the Cayman Borrower (and be excluded
from the prepayment requirements of this clause) if:




     (i) the Cayman Borrower informs the Administrative Agent in such notice of its
good faith intention to apply (or cause one or more of its Subsidiaries to apply)
such Net Disposition Proceeds or Net Casualty Proceeds to the acquisition of other
assets or properties consistent with the businesses permitted



51









 







to be conducted
pursuant to Section 7.2.1 (including by way of merger or Investment) or to
the repair or reinstatement of the assets, and




     (ii) no later than the date (the “Reinvestment Date”) that is 365 days
following the receipt of such Net Disposition Proceeds or such Net Casualty
Proceeds, such proceeds are applied or have received specific board approval for
application (indicating the proposed application of such committed proceeds and
requiring subsequent board approval for any alternate use of such proceeds) to such
acquisition, repair or reinstatement (as applicable). The amount of such Net
Disposition Proceeds or Net Casualty Proceeds unused or uncommitted after the
Reinvestment Date, shall be applied to prepay the Loans as set forth in
Section 3.1.2.




     (d) Net Equity Proceeds. In the event either Borrower receives any Net Equity
Proceeds, such Borrower shall (subject to the proviso hereto) within three Business Days of
such receipt, deliver to the Administrative Agent a calculation of the amount of such Net
Equity Proceeds, and such Borrower shall make a mandatory prepayment of the Term Loans (or
if the Term Loans have been repaid in full, prepay the Revolving Loans (and, in respect of
all outstanding Revolving Letters of Credit, make deposits in the Deemed Revolving LC
Disbursements Collateral Account (if such an account has been established) in an amount
equal to the aggregate Stated Amount under such Revolving Letters of Credit if at such time
the conditions to issuance in Section 5.3 are not satisfied) or, if the Revolving
Loans have been repaid in full and there are no outstanding Revolving Letters of Credit (as
to which amounts have not been deposited in the Deemed Revolving LC Disbursements Collateral
Account as provided above), prepay the Synthetic Revolving Loans (and, in respect of all
outstanding Synthetic Letters of Credit, make deposits in the Deemed Synthetic LC
Disbursements Collateral Account (if such an account has been established) in an amount
equal to the aggregate Stated Amount under such Synthetic Letters of Credit if at such time
the conditions to issuance in Section 5.3 are not satisfied)) in an amount equal to
a ratable portion of 50% of the amount of such Net Equity Proceeds based on all outstanding
permitted senior secured Indebtedness of such Borrower that contains a prepayment provision
similar to this Section 3.1.1(d);




provided that upon written notice by the Cayman Borrower to the Administrative Agent
not more than three Business Days following receipt of any Net Equity Proceeds, such
proceeds may be retained by the Cayman Borrower (and be excluded from the prepayment
requirements of this clause) if:




     (i) the Cayman Borrower informs the Administrative Agent in such notice of its
good faith intention to apply (or cause one or more of its Subsidiaries to apply)
such Net Equity Proceeds to (u) the payment of ordinary course of business expenses
of the Cayman Borrower and its Subsidiaries, (w) the payment of Capital
Expenditures, (x) the repayment of the Cayman Borrower’s Subordinated Debt
outstanding under the Note Purchase Agreement in an aggregate principal amount not
to exceed the principal amount of Subordinated



52









 







Debt outstanding under the Note
Purchase Agreement on the Closing Date (plus any accrued interest that has been
added to principal since the Closing Date), (y) a Permitted Acquisition or (z) repay
Indebtedness of a Subsidiary of the Cayman Borrower and




     (ii) no later than the date (the “Equity Reinvestment Date”) that is
180 days following the receipt of such Net Equity Proceeds, such proceeds are
applied or have received specific board approval for application (indicating the
proposed application of such committed proceeds and requiring subsequent board
approval for any alternate use of such proceeds) as provided in clause
(d)(i) above. The amount of such Net Equity Proceeds unused or uncommitted
after the Equity Reinvestment Date, shall be applied to prepay the Loans as set
forth in Section 3.1.2.




     (e) Net Debt Proceeds. In the event either Borrower receives any Net Debt
Proceeds, such Borrower shall (subject to the proviso hereto) within three Business Days of
such receipt, deliver to the Administrative Agent a calculation of the amount of such Net
Debt Proceeds, and such Borrower shall make a mandatory prepayment of the Term Loans (or if
the Term Loans have been repaid in full, prepay the Revolving Loans (and, in respect of all
outstanding Revolving Letters of Credit, make deposits in the Deemed Revolving LC
Disbursements Collateral Account (if such an account has been established) in an amount
equal to the aggregate Stated Amount under such Revolving Letters of Credit if at such time
the conditions to issuance in Section 5.3 are not satisfied) or, if the Revolving
Loans have been repaid in full and there are no outstanding Revolving Letters of Credit (as
to which amounts have not been deposited in the Deemed Revolving LC Disbursements Collateral
Account as provided above), prepay the Synthetic Revolving Loans (and, in respect of all
outstanding Synthetic Letters of Credit, make deposits in the Deemed Synthetic LC
Disbursements Collateral Account (if such an account has been established) in an amount
equal to the aggregate Stated Amount under such Synthetic Letters of Credit if at such time
the conditions to issuance in Section 5.3 are not satisfied)) in an amount equal to
a ratable portion of 100% of the amount of such Net Debt Proceeds based on all outstanding
permitted senior secured Indebtedness of the Borrowers that contains a prepayment provision
similar to this Section 3.1.1(e);




provided that upon written notice by the Cayman Borrower to the Administrative Agent
not more than three Business Days following receipt of any Net Debt Proceeds, such proceeds
may be retained by the Cayman Borrower (and be excluded from the prepayment requirements of
this clause) if:




     (i) the Cayman Borrower informs the Administrative Agent in such notice of its
good faith intention to apply (or cause one or more of its Subsidiaries to apply)
such Net Debt Proceeds to (v) the payment of Capital Expenditures, (w) the payment
of ordinary course of business expenses of the Cayman Borrower and its Subsidiaries,
(x) the repayment of the Cayman Borrower’s Subordinated Debt outstanding under the
Note Purchase Agreement (A) in the case any repayment made or deemed to have been
made in connection with any amendment or




53












 






replacement of the Note Purchase Agreement,
in a principal amount for each such repayment not to exceed the principal amount of
Subordinated Debt outstanding under the Note Purchase Agreement on the Closing Date
(plus any accrued interest that has been added to principal since the Closing Date)
and (B) in all other cases, in an aggregate principal amount for all such repayments
not to exceed the principal amount of Subordinated Debt outstanding under the Note
Purchase Agreement on the Closing Date (plus any accrued interest that has been
added to principal since the Closing Date), (y) a Permitted Acquisition or (z) repay
Indebtedness of a Subsidiary of the Cayman Borrower (provided that
Indebtedness of a Subsidiary other than a Qualified New Subsidiary may not be used
to repay Indebtedness of a Qualified New Subsidiary) and




     (ii) no later than the date (the “Debt Reinvestment Date”) that is 180
days following the receipt of such Net Debt Proceeds, such proceeds are applied or
have received specific board approval for application (indicating the proposed
application of such committed proceeds and requiring subsequent board approval for
any alternate use of such proceeds) as provided in clause (e)(i) above .
The amount of such Net Debt Proceeds unused or uncommitted after the Debt
Reinvestment Date, shall be applied to prepay the Loans as set forth in
Section 3.1.2.




     (f) Revolving Loans; Synthetic Revolving Loans.




     (i) On each date when the aggregate outstanding Revolving Credit Exposure
exceeds the Revolving Loan Commitment Amount then in effect and/or the aggregate
outstanding Synthetic Revolving Credit Exposure exceeds the Synthetic Revolving Loan
Commitment Amount then in effect, the Cayman Borrower shall make a mandatory
prepayment of Revolving Loans and/or Synthetic Revolving Loans, as applicable, in an
amount equal to such excess.




     (ii) In the event that the mandatory prepayments described in subclause
(i) above do not reduce the aggregate outstanding Revolving Credit Exposure
below the Revolving Loan Commitment Amount and/or the aggregate outstanding
Synthetic Revolving Credit Exposure below the Synthetic Revolving Loan Commitment
Amount then in effect, then the Borrower shall be required to deposit into the
applicable Deemed Disbursements Collateral Account (if such any such account has
been established) an amount equal to such excess amount.




     (iii) In the event that the proceeds of Revolving Loans or Synthetic Revolving
Loans are used to make any Restricted Payment in accordance with
Section 7.2.6, the Cayman Borrower shall make (through one or more payments)
a mandatory prepayment of the Revolving Loans and/or Synthetic Revolving Loans, as
applicable, no later than the date that is 180 days after the date of such
Restricted Payment (or, if such date is not a Business Day, the next succeeding
Business Day) in an amount equal to the proceeds of such Revolving Loans and
Synthetic Revolving Loans used for such Restricted Payment less the amount of



54









 






any voluntary prepayments of the Revolving Loans and/or Synthetic Revolving Loans, as
applicable, made (and not reborrowed) during the period 180 days prior to the
borrowing of the applicable Revolving Loans and/or Synthetic Revolving Loans, as
applicable, for the payment of such Restricted Payment.




     (iv) In the event that any Revolving Loan or Synthetic Revolving Loan is deemed
to have been made pursuant to Section 2.5.2 or Section 2.5.4 during
the continuance of any Event of Default, the Cayman Borrower shall make an immediate
mandatory prepayment of the Revolving Loans or Synthetic Revolving Loans, as
applicable, in an amount equal to the Revolving Loans or Synthetic Loans so deemed
to have been made.




     (g) Acceleration. Immediately upon any acceleration of the Stated Maturity
Date of any Loans pursuant to Section 8.2 or Section 8.3, the Borrowers
shall repay all the Loans (and, in respect of all outstanding Letters of Credit, make
deposits in the applicable Deemed Disbursements Collateral Account in the amount required
pursuant to Section 2.5.4(a) or Section 2.5.4(b), as applicable), unless,
pursuant to Section 8.3, only a portion of all the Loans and Commitments are so
accelerated (in which case the portion so accelerated shall be so repaid or deposited).




     (h) Call Premium. In the event that the Term Loans are prepaid or repaid in
whole or in part pursuant to Section 3.1.1(a) or Section 3.1.1(e), in either
case, on or before the first anniversary of the Effective Date, the Cayman Borrower shall
pay to each Lender holding Term Loans a prepayment premium in an amount equal to 1% on the
principal amount of such Lender’s Term Loans so prepaid or repaid (the “Call
Premium”). Each repayment or prepayment of the Revolving Loans, the Synthetic Revolving
Loans and, except as provided in the preceding sentence, the Term Loans, pursuant to this
Section 3.1.1 shall be without premium or penalty except to the extent required by
Section 4.4.




     (i) Reasonable Efforts. The Cayman Borrower shall, and shall cause all wholly
owned Subsidiaries to, use all Reasonable Efforts to ensure that as soon as reasonably
practicable following receipt by any such Subsidiary of any Net Disposition Proceeds, Net
Casualty Proceeds, Net Equity Proceeds or Net Debt Proceeds, such amounts are paid,
transferred or distributed, directly or indirectly, to the Cayman Borrower;
provided, however, that such proceeds shall not be required to be
transferred
to the Cayman Borrower if the Cayman Borrower notifies the Administrative Agent
pursuant to and in accordance with the procedures specified in Section 3.1.1(c)(i),
3.1.1(d)(i) or 3.1.1(e)(i) that a Subsidiary of the Cayman Borrower intends
to use such proceeds as contemplated by such notice.



     SECTION 3.1.2 Application. Amounts prepaid pursuant to Section 3.1.1 shall be applied as set forth in this Section.




     (a) Subject to clause (b), each prepayment or repayment of the principal of the
Loans shall be applied, to the extent of such prepayment or repayment, first, to the
principal amount thereof being maintained as Base Rate Loans, and second, subject to
the



55









 






terms of Section 4.4, to the principal amount thereof being maintained as LIBO
Rate Loans.




     (b) Each prepayment of the Term Loans made pursuant to Section 3.1.1 shall be
applied ratably to each of payments to be made by the applicable Borrower pursuant to
Section 3.1.1(b)(i) and Section 3.1.1(b)(ii) based on the amount of such
payment.



     SECTION 3.2 Interest Provisions. Interest on the outstanding principal amount of the Loans shall accrue and be payable in
accordance with the terms set forth below.



     SECTION 3.2.1 Rates; Fees.



     (a) Subject to Section 2.2 and Section 2.3, pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice, the applicable Borrower may elect
that the Loans accrue interest at a rate per annum:




     (i) on that portion maintained from time to time as a Base Rate Loan, equal to
the sum of the Alternate Base Rate from time to time in effect plus the Applicable
Margin; and




     (ii) on that portion maintained as a LIBO Rate Loan, during each Interest
Period applicable thereto, equal to the sum of the LIBO Rate (Reserve Adjusted) for
such Interest Period plus the Applicable Margin.


All LIBO Rate Loans shall bear interest from and including the first day of the applicable Interest
Period to (but not including) the last day of such Interest Period at the interest rate determined
as applicable to such LIBO Rate Loan. Interest on Base Rate Loans shall be calculated from and
including the first day of the borrowing of such Base Rate Loan to (but not
including) the date interest is required to be paid on such Base Rate Loan pursuant to Section
3.2.3.




     (b) Synthetic Revolving Deposits in the Synthetic Revolving Deposit Account shall accrue fees
(the “Participation Fees”) at a rate per annum equal to the Applicable Margin applicable to
LIBO Rate Loans plus 0.10% on the daily amount of the aggregate Synthetic Revolving Deposits (less
the daily principal amount of aggregate Synthetic Revolving Loans that have not been reimbursed
pursuant to Section 2.1.3(d)(i) during such period), which Participation Fees shall be
payable by the Cayman Borrower quarterly in arrears to the Administrative Agent on behalf of
Lenders with Synthetic Revolving Deposits. Participation Fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).



     (c) The Cayman Borrower agrees to pay (i) to each Lender with a Revolving Letter of Credit
Participation Obligation, through the Administrative Agent, on each Quarterly Payment Date,
commencing on June 30, 2008, and on the date on which the Commitment of such Lender shall be
terminated as provided herein a fee (the “Revolving Letter of Credit Participation Fees”),
calculated on such Lender’s Percentage of the daily aggregate Revolving Letter of Credit
Outstandings during the immediately preceding quarter (or shorter period commencing with the



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Restatement Effective Date or ending with the Stated Maturity Date in respect of Revolving Letters
of Credit or the date on which all Revolving Letters of Credit have been canceled or have expired
and the Commitments of all Lenders to make Revolving Loans shall have been terminated) at a rate
per annum equal to the Applicable Margin used to determine the interest rate on Revolving Loans
composed of LIBO Rate Loans, and (ii) to each Revolving LC Issuer with respect to each outstanding
Revolving Letter of Credit issued by it a fronting fee, which shall accrue at the rate of 0.25% per
annum or such other rate as shall be separately agreed upon between the Borrower and such Issuing
Bank, on the Stated Amount of each such Revolving Letter of Credit, payable quarterly in arrears on
each Quarterly Payment Date after the issuance date of each such Revolving Letter of Credit, as
well as the Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or
extension of any Revolving Letter of Credit issued for the account of (or at the request of) the
Cayman Borrower or processing of drawings thereunder.




     (d) The Cayman Borrower agrees to pay to each Synthetic LC Issuer with respect to each
outstanding Synthetic Letter of Credit issued by it a fronting fee, which shall accrue at the rate
of 0.25% per annum or such other rate as shall be separately agreed upon between the Borrower and
such Issuing Bank, on the Stated Amount of each such Synthetic Letter of Credit, payable quarterly
in arrears on each Quarterly Payment Date after the issuance date of each such Synthetic Letter of
Credit, as well as the Issuing Bank’s standard fees with respect to the issuance, amendment,
renewal or extension of any Synthetic Letter of Credit issued for the account of (or at the request
of) the Cayman Borrower or processing of drawings thereunder.



     SECTION 3.2.2 Post-Maturity Rates. After the date any principal amount of any Loan is due and payable (whether on the Stated
Maturity Date, upon acceleration or otherwise), or after any other monetary Obligation of the
Borrowers shall have become due and payable, the Borrowers shall pay, but only to the extent
permitted by law, interest (after as well as before judgment) on such amounts at a rate per annum
equal to (a) in the case of overdue principal on any Loan, the rate of interest that otherwise
would be applicable to such Loan plus 2% per annum; and (b) in the case of overdue interest, fees,
and other monetary Obligations, the Alternate Base Rate plus 2% per annum.



     SECTION 3.2.3 Payment Dates.



     (a) Interest accrued on each Loan shall be payable, without duplication:




     (i) on the Stated Maturity Date therefor;




     (ii) with respect to LIBO Rate Loans, (i) on the last day of each applicable
Interest Period (and, if such Interest Period shall exceed three months, on each
three-month anniversary of the first day of such Interest Period) and (ii) on the
date of any payment or prepayment, in whole or in part, of principal outstanding on
such Loan on the principal amount so paid or prepaid;




     (iii) with respect to Base Rate Loans, (i) on each Quarterly Payment Date
occurring after the Effective Date, (ii) on the date of any payment or prepayment,
in whole (but not in part), of principal outstanding on such Loan that



57









 






is a Term Loan on the principal amount so paid or prepaid, and (iii) on the date of any
payment or prepayment, in whole or in part, of principal outstanding on such Loan
that is a Revolving Loan on the principal amount so paid or prepaid (to the extent
corresponding Revolving Loan Commitment Amounts are permanently reduced in
connection with such payment or prepayment); and




     (iv) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to Section 8.2 or Section 8.3, immediately upon
such acceleration.


Interest accrued on Loans or other monetary Obligations after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise) shall be payable upon
demand.




     (b) Participation Fees on each Synthetic Revolving Deposit shall be payable, without
duplication:




     (i) on the Stated Maturity Date for such Synthetic Revolving Loans;




     (ii) on the date of any return of Synthetic Revolving Deposits pursuant to
Section 3.1.1(a)(ii), on the amount of such Synthetic Revolving Deposits so
returned; and




     (iii) on each Quarterly Payment Date occurring after the Effective Date.



     SECTION 3.3 Fees. The Borrowers agree to pay the fees to the Persons, in the amounts and on the dates set forth
herein and/or set forth in the Fee Letter and any other fee letter entered into in connection
herewith.



     SECTION 3.3.1 Revolving Loan Commitment Fee. The Cayman Borrower shall pay to the Administrative Agent for the account of each Lender
relating to the Revolving Loans, quarterly (it being understood such first quarterly period shall
commence on the Closing Date and the fees payable with respect to such first quarterly period shall
be pro rated accordingly) in arrears on each Quarterly Payment Date and on the date of the final
repayment of the Revolving Loans in accordance with Section 3.1.1(f), for the period
(including any portion thereof when any of its Commitments are suspended by reason of the Cayman
Borrower’s inability to satisfy any condition of Section 5.2) commencing on the Closing
Date and continuing through the date of the final repayment of the Revolving Loans in accordance
with Section 3.1.1(f), a commitment fee (without duplication of any fee payable pursuant to
Section 3.2.1(c)) at a rate per annum equal to 0.50% on such Lender’s Percentage relating to the
Revolving Loans of the sum of the average daily unused portion of the Revolving Loan Commitment
Amount.



ARTICLE IV

CERTAIN LIBO RATE AND OTHER PROVISIONS




     SECTION 4.1 LIBO Rate Lending Unlawful. If any Lender shall determine (which determination shall, upon notice thereof to the Borrowers
and the Administrative Agent, be



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conclusive and binding on the Borrowers) that the introduction of
or any change in or in the interpretation of any law makes it unlawful, or any Governmental
Authority asserts that it is unlawful, for such Lender to make or continue any Loan as, or to
convert any Loan into, a LIBO Rate Loan, the obligations of such Lender to make, continue or
convert any such LIBO Rate Loan shall, upon such determination, forthwith be suspended until such
Lender shall notify the Administrative Agent that the circumstances causing such suspension no
longer exist, and all outstanding LIBO Rate Loans payable to such Lender shall automatically
convert into Base Rate Loans at the end of the then current Interest Periods with respect thereto
or sooner, if required by such law or assertion.




     SECTION 4.2 Deposits Unavailable. If the Administrative Agent or the Required Lenders shall have determined (which determination
shall be conclusive absent manifest error) that




     (a) Dollar deposits in the relevant amount and for the relevant Interest Period are not
available to it in its relevant market; or




     (b) by reason of circumstances affecting its relevant market, adequate means do not
exist for ascertaining the interest rate applicable hereunder to LIBO Rate Loans;


then, upon notice from the Administrative Agent to the Borrowers and the Lenders, the obligations
of all Lenders under Section 2.3 and Section 2.4 to make or continue any Loans as,
or to convert any Loans into, LIBO Rate Loans shall forthwith be suspended until the Administrative
Agent shall notify the Borrowers and the Lenders that the Administrative Agent or the Required
Lenders have determined that the circumstances causing such suspension no longer exist.




     SECTION 4.3 Increased LIBO Rate Loan Costs, etc. Each Borrower agrees, on a joint and several basis, to reimburse each Lender for any increase
in the cost to such Lender of, or any reduction in the amount of any sum receivable by such Lender
in respect of, such Lender’s Commitments and the making of LIBO Rate Loans hereunder (including the
making, continuing or maintaining (or of its obligation to make or continue) any LIBO Rate Loans
as, or of converting (or of its obligation to convert) any Loans into, LIBO Rate Loans) that arise
in connection with any change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in after the Closing Date of, any law or regulation, directive,
guideline, decision or request (whether or not having the force of law) of any Governmental
Authority, except for such changes with respect to increased capital costs and Taxes which are
governed by Sections 4.5 and 4.6, respectively and except for costs reflected in
the LIBO Rate Reserve Percentage. Each affected Lender shall promptly notify the Administrative
Agent and the Borrowers in writing of the occurrence of any such event, stating the reasons
therefor and the additional amount required fully to compensate such Lender for such increased cost
or reduced amount. Such additional amounts shall be payable by the Borrowers directly to such
Lender within three Business Days of its receipt of such notice, and such notice shall, in the
absence of manifest error, be conclusive and binding on the Borrowers; provided that the
Borrowers shall not be liable to any Lender for such amounts incurred by such Lender more than 365
days prior to the date of notice to the Borrowers and the Administrative Agent.



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     SECTION 4.4 Funding Losses. In the event any Lender shall incur any loss or expense (including any loss or expense incurred
by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to
make or continue any portion of the principal amount of any Loan as, or to convert any portion of
the principal amount of any Loan into, a LIBO Rate Loan) as a result of



     (a) any conversion or repayment or prepayment of the principal amount of any LIBO Rate
Loan on a date other than the scheduled last day of the Interest Period applicable thereto,
whether pursuant to Article III or otherwise;




     (b) any Loans not being made as LIBO Rate Loans in accordance with the Borrowing
Request therefor (for a reason other than the failure of a Lender to make such Loan);




     (c) any Loans not being continued as, or converted into, LIBO Rate Loans in accordance
with the Continuation/Conversion Notice therefor; or




     (d) any Loans not being borrowed on the date specified by the Borrowers on the proposed
Closing Date,


then, upon the written notice of such Lender to the Borrowers (with a copy to the Administrative
Agent), the Borrowers shall, within three Business Days of its receipt thereof, pay directly to
such Lender such amount as will (in the reasonable determination of such Lender) reimburse such
Lender for such loss or expense. Such written notice shall, in the absence of manifest error, be
conclusive and binding on the Borrowers.




     SECTION 4.5 Increased Capital Costs. If, after the Closing Date, any change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of any Governmental Authority affects
or would affect the amount of capital required or expected to be maintained by any Lender or any
Person controlling such Lender, and such Lender determines (in good faith but in its sole and
absolute discretion) that the rate of return on its or such controlling Person’s capital as a
consequence of the Commitments, the Loans made by such Lender or the Synthetic Revolving Deposit
made by such Lender is reduced to a level below that which such Lender or such controlling Person
could have achieved but for the occurrence of any such circumstance, then upon notice from time to
time by such Lender to the Borrowers, the Borrowers shall within three Business Days following
receipt of such notice pay directly to such Lender additional amounts sufficient to compensate such
Lender or such controlling Person for such reduction in rate of return; provided that the
Borrowers shall not be liable to any Lender for any such reduction with respect to any period of
time which is more than 365 days prior to the date of any such statement. A statement of such
Lender as to any such additional amount or amounts shall, in the absence of manifest error, be
conclusive and binding on the Borrowers. In determining such amount, such Lender may use any
reasonable method of averaging and attribution that it (in its sole and absolute discretion) shall
deem applicable.



     SECTION 4.6 Taxes. Each Borrower covenants and agrees as follows with respect to Taxes.



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     (a) Any and all payments by or on account of each Borrower under each Loan Document
shall be made without setoff, counterclaim or other defense, and free and clear of, and
without deduction or withholding for or on account of, any Taxes except as required by
applicable law. In the event that any Taxes are imposed and required to be deducted or
withheld from any payment required to be made to or on behalf of any Secured Party under any
Loan Document, then:




     (i) subject to clause (g), if such Taxes are Non-Excluded Taxes, the
amount of payment by the applicable Borrower shall be increased as may be necessary
so that the net payment to the Secured Party, after withholding or deduction for or
on account of such Taxes, is not less than the amount provided for in such Loan
Document; and




     (ii) the applicable Borrower shall withhold or cause to be withheld the full
amount of such Taxes from such payment (as increased pursuant to clause
(a)(i)) and shall pay or cause to be paid such amount to the Governmental
Authority imposing such Taxes in accordance with applicable law.




     (b) In addition, the applicable Borrower shall pay all Other Taxes imposed to the
relevant Governmental Authority imposing such Other Taxes in accordance with applicable law.




     (c) As promptly as practicable after the payment of any Taxes or Other Taxes, the
applicable Borrower shall furnish to the Administrative Agent a copy of an official receipt
(or a certified copy thereof) evidencing the payment of such Taxes or Other Taxes or other
evidence of such payment reasonably satisfactory to the Administrative Agent. The
Administrative Agent shall make copies thereof available to any Lender upon request
therefor.




     (d) Subject to clause (g), the applicable Borrower shall indemnify each Lender,
for any Non-Excluded Taxes or Other Taxes required to be withheld by the Administrative
Agent with respect to any and all payments of the Synthetic Revolving Deposit Return to the
Lender (including Non-Excluded Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section 4.6). A certificate stating the amount of
such payment or liability and setting forth in reasonable detail the calculation thereof
shall be delivered to the applicable Borrower by such Lender, or by the Administrative Agent
on behalf of such Lender and shall be conclusive absent manifest error. Notwithstanding the
foregoing, where a certificate described in the preceding sentence is not delivered to the
applicable Borrower within 90 days after the assessed Lender or Administrative Agent
receives notice of the assertion of any Non-Excluded Taxes or Other Taxes, no
indemnification shall be required for penalties, additions to tax, expenses and interest
accruing on such Non-Excluded Taxes or Other Taxes from the date that is 90 days after the
receipt by the assessed Lender or Administrative Agent of written notice of the assertion of
such taxes until (and then only
for periods after) 30 days after the date such certificate was actually received by the
applicable Borrower.



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     (e) Subject to clause (g), the applicable Borrower shall indemnify each Secured
Party for any Non-Excluded Taxes and Other Taxes levied, imposed or assessed on (and whether
or not paid directly by) such Secured Party whether or not such Non-Excluded Taxes or Other
Taxes are correctly or legally asserted by the relevant Governmental Authority. Promptly
upon having knowledge that any such Non-Excluded Taxes or Other Taxes have been levied,
imposed or assessed, and promptly upon notice thereof by any Secured Party, the applicable
Borrower shall pay such Non-Excluded Taxes or Other Taxes directly to the relevant
Governmental Authority (provided, however, that no Secured Party shall be
under any obligation to provide any such notice to either Borrower). In addition, the
applicable Borrower shall indemnify each Secured Party for any incremental Taxes that may
become payable by such Secured Party as a result of any failure of such Borrower to pay any
Taxes when due to the appropriate Governmental Authority or to deliver to the Administrative
Agent, pursuant to clause (c), documentation evidencing the payment of Taxes or
Other Taxes. With respect to indemnification for Non-Excluded Taxes and Other Taxes
actually paid by any Secured Party or the indemnification provided in the immediately
preceding sentence, such indemnification shall be made within 90 days after the date such
Secured Party makes written demand therefor.




     (f) Pursuant to a reasonable written request from the applicable Borrower (delivered to
the Lender not fewer than 30 days prior to the time at which such Borrower requests delivery
by the Lender), a Lender that is legally entitled to an exemption from or reduction of
Non-Excluded Taxes with respect to payments hereunder or under any other Loan Document shall
deliver to such Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by such Borrower or the Administrative
Agent, such properly completed and executed forms prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate of withholding;
provided that the delivery of such forms would not in the good faith determination
of the Lender be materially disadvantageous to it. Without limiting the foregoing, each
Lender shall deliver to the Administrative Agent, on or before the Closing Date (or if
later, on or prior to the date such Lender becomes a party hereto) and from time to time
thereafter on or prior to the expiration of the previously delivered form, two original
copies of Internal Revenue Service Form W-9, W-8BEN, W-8ECI, or W-8IMY (with required
attachments), as may be applicable, in each case, properly completed and executed, as will
permit payments under this Agreement to be made without any United States backup
withholding.




     (g) Neither Borrower shall be obligated to pay any additional amounts to a Lender
pursuant to clause (a)(i), or to indemnify a Lender pursuant to clause (d)
or clause (e), in respect of Non-Excluded Taxes to the extent imposed as a result of
(i) the failure of such Lender to deliver to such Borrower any form or forms that such
Lender is required to deliver pursuant to clause (f), (ii) the information or
certifications made on such form or forms by the Lender being untrue or inaccurate on the
date delivered, or (iii) the Lender designating a successor lending office at which it
maintains its Loans which has the effect of causing such Lender to become obligated for tax
payments in excess of those in effect immediately prior to such designation. Notwithstanding
the forgoing, the



62









 






applicable Borrower shall nonetheless be obligated to pay additional
amounts pursuant to clause (a)(i) and to indemnify under clause (d) or
clause (e) (i) with respect to any withholding tax that would not have been
eliminated notwithstanding the Lender’s compliance with its obligations under clause
(f) above, (ii) to the extent that any failure to deliver a form or forms or inaccuracy
or untruth contained therein resulted from a change in any applicable statute, treaty,
regulation or other applicable law or any interpretation of any of the foregoing occurring
after the date a request for documentation establishing an exemption from Non-Excluded Taxes
was first requested pursuant to clause (f), which change rendered such Lender no
longer legally entitled to deliver such form or forms or otherwise ineligible for a complete
exemption from or reduced rate of withholding taxes, or rendered the information or
certifications made in such form or forms untrue or inaccurate in a material respect, (iii)
to the extent that the redesignation of the Lender’s lending office was made at the request
of such Borrower or (iv) to the extent that the obligation to pay any additional amounts to
any such Lender pursuant to clause (a)(i) or to indemnify any such Lender pursuant
to clause (d) or clause (e) is with respect to an Assignee Lender that
becomes an Assignee Lender as a result of an assignment made at the request of such
Borrower.




     (h) Notwithstanding anything herein to the contrary in this Agreement, the Cayman
Borrower shall pay additional amounts with respect to any withholding taxes applicable to
fees payable pursuant to Section 3.2.1(d) so that each Lender with a Synthetic
Revolving Deposit receives a net amount (after such withholding taxes) equal to what it
would have received without such withholding taxes. The Cayman Borrower’s obligation under
this Section 4.6(h) shall apply without regard to any exception or exclusion, and
such withholding taxes shall be deemed to be applicable if the Administrative Agent so
notifies the Cayman Borrower.



     SECTION 4.7 Payments, Computations, etc. Unless otherwise expressly provided in a Loan Document, all payments by the Borrowers pursuant
to each Loan Document shall be made by the Borrowers to the Administrative Agent for the
pro rata account of the Secured Parties entitled to receive such payment. All
payments of principal of Synthetic Revolving Loans shall be made by the Cayman Borrower to the
Administrative Agent for its account or, to the extent that the Administrative Agent has been
reimbursed for such Synthetic Revolving Loans from proceeds in the Synthetic Revolving Deposit
Account, for deposit into the Synthetic Revolving Deposit Account for the benefit of the applicable
Lenders in accordance with their Synthetic Revolving Deposit Percentages. All payments shall be
made without setoff, deduction or counterclaim not later than 11:00 a.m. on the date due in same
day or immediately available funds to such account as the Administrative
Agent shall specify from time to time by notice to the Borrowers. Funds received after that time
shall be deemed to have been received by the Administrative Agent on the next succeeding Business
Day unless, at the Administrative Agent’s sole discretion, the Administrative Agent elects to treat
such payment as having been received on the same Business Day. The Administrative Agent shall
promptly remit in same day funds to each Secured Party its share, if any, of such payments received
by the Administrative Agent for the account of such Secured Party. All interest (including
interest on LIBO Rate Loans) and fees shall be computed on the basis of the actual number of days
(including the first day but excluding the last day) occurring during the period for which such
interest or fee is payable over



63









 




a year comprised of 360 days (or, in the case of interest on a Base
Rate Loan (calculated at other than the Federal Funds Rate), 365 days or, if appropriate, 366
days). Except as otherwise provided herein. payments due on other than a Business Day shall be
made on the next preceding Business Day and such extension of time shall be included in computing
interest and fees in connection with that payment. Except as otherwise expressly set forth
therein, any payment made under any Loan Document that is less than the full amount then due
thereunder shall be applied upon receipt (a) first, to the payment of all Obligations
(other than Loans and interest thereon) owing to the Administrative Agent and the Collateral Agent,
in its capacity as the Administrative Agent and the Collateral Agent, respectively (including the
reasonable and documented fees and expenses of counsel to the Administrative Agent or the
Collateral Agent, as the case may be), (b) second, after payment in full in cash of the
amounts specified in clause (a), to the ratable payment of all interest and fees owing with
respect to the Loans and all costs and expenses owing to the Secured Parties pursuant to the terms
of the Credit Agreement, until paid in full in cash, (c) third, after payment in full in
cash of the amounts specified in clauses (a) and (b), to the ratable payment of the
principal amount of the Loans then outstanding, and, if such payment resulted from the proceeds of
any collateral, then to amounts owing to Secured Parties under Hedging Agreements, (d)
fourth, after payment in full in cash of the amounts specified in clauses (a)
through (c), to the ratable payment of all other Obligations owing to the Secured Parties,
(e) fifth, after payment in full in cash of the amounts specified in clauses (a)
through (d), and following the Termination Date, to the Borrowers or any other Person
lawfully entitled to receive such surplus. For purposes of this Section, the “credit exposure” at
any time of any Secured Party with respect to a Hedging Agreement to which such Secured Party is a
party shall be determined at such time in accordance with the customary methods of calculating
credit exposure under similar arrangements by the counterparty to such arrangements, taking into
account potential interest rate movements, currency movements and the respective termination
provisions and notional principal amount, netting arrangements and term of such Hedging Agreement.




     SECTION 4.8 Sharing of Payments. If any Secured Party shall obtain any payment or other recovery (whether voluntary, involuntary,
by application of setoff or otherwise) on account of any Loan (other than pursuant to the terms of
Section 4.3, 4.4, 4.5 or 4.6) in excess of its pro
rata share of payments obtained by all Secured Parties, such Secured Party shall purchase
from the other Secured Parties such participations in Loans made by them as shall be necessary to
cause such purchasing Secured Party to share the excess payment or other recovery ratably (to the
extent such other Secured
Parties were entitled to receive a portion of such payment or recovery) with each of them;
provided, however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Secured Party, the purchase shall be
rescinded and each Secured Party which has sold a participation to the purchasing Secured Party
shall repay to the purchasing Secured Party the purchase price to the ratable extent of such
recovery together with an amount equal to such selling Secured Party’s ratable share (according to
the proportion of (a) the amount of such selling Secured Party’s required repayment to the
purchasing Secured Party to (b) total amount so recovered from the purchasing Secured Party) of any
interest or other amount paid or payable by the purchasing Secured Party in respect of the total
amount so recovered. Each Borrower agrees that any Secured Party purchasing a participation from
another Secured Party pursuant to this Section may, to the fullest extent permitted by law,
exercise all its rights of payment (including pursuant to Section 4.9) with



64









 




respect to such
participation as fully as if such Secured Party were the direct creditor of such Borrower in the
amount of such participation. If under any applicable bankruptcy, insolvency or other similar law
any Secured Party receives a secured claim in lieu of a setoff to which this Section applies, such
Secured Party shall, to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Secured Parties entitled under this Section to
share in the benefits of any recovery on such secured claim.




     SECTION 4.9 Setoff. Each Secured Party shall, upon the occurrence and during the continuance of any Event of Default
described in clauses (a) through (e) of Section 8.1.9 or, with the consent
of the Required Lenders, upon the occurrence and during the continuance of any other Event of
Default, have the right to appropriate and apply to the payment of the Obligations owing to it
(whether or not then due) any and all balances, credits, deposits, accounts or moneys of the
Borrowers then or thereafter maintained with such Secured Party (or any of its Affiliates);
provided, however, that any such appropriation and application shall be subject to
the provisions of Section 4.8. Each Secured Party agrees promptly to notify the Borrowers
and the Administrative Agent after any such appropriation and application made by such Secured
Party; provided, however, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Secured Party under this Section are
in addition to other rights and remedies (including other rights of setoff under applicable law or
otherwise) which such Secured Party may have.



     SECTION 4.10 Replacement of Lenders. If any Lender (an “Affected Lender”) (a) makes a demand upon either Borrower for (or if
either Borrower is otherwise required to pay) amounts pursuant to Section 4.3, 4.5
or 4.6 (and the payment of such amounts are, and are likely to continue to be, more onerous
in the reasonable judgment of such Borrower than with respect to the other Lenders), or (b) gives
notice pursuant to Section 4.1 requiring a conversion of such Affected Lender’s LIBO Rate
Loans to Base Rate Loans or suspending such Lender’s obligation to make Loans as, or to convert
Loans into, LIBO Rate Loans, such Borrower may, within 90 days of receipt by such Borrower of such
demand or notice, as the case may be, give notice (a “Replacement Notice”) in writing to
the Administrative
Agent and such Affected Lender of its intention to cause such Affected Lender to sell all or any
portion of its Loans, Notes (if any) and/or Synthetic Revolving Deposits (if any) to another
financial institution or other Person (a “Replacement Lender”) designated in such
Replacement Notice; provided, that no Replacement Notice may be given by such Borrower if
(i) such replacement conflicts with any applicable law or regulation, (ii) any Event of Default
shall have occurred and be continuing at the time of such replacement or (iii) prior to any such
replacement, such Lender shall have taken any necessary action under Section 4.5 or
4.6 (if applicable) so as to eliminate the continued need for payment of amounts owing
pursuant to Section 4.5 or 4.6. If the Administrative Agent shall, in the exercise
of its reasonable discretion and within 30 days of its receipt of such Replacement Notice, notify
the applicable Borrower and such Affected Lender in writing that the Replacement Lender is
satisfactory to the Administrative Agent (such consent not being required where the Replacement
Lender is already a Lender), then such Affected Lender shall, subject to the payment of any amounts
due pursuant to Section 4.4, assign, in accordance with Section 10.12, the portion
of its Loans, Notes (if any) and/or Synthetic Revolving Deposits (if any), and other rights and
obligations under this Agreement and all other Loan Documents designated in the replacement notice
to such Replacement Lender; provided, that (i) such assignment shall be



65









 




without recourse,
representation or warranty and shall be on terms and conditions reasonably satisfactory to such
Affected Lender and such Replacement Lender, (ii) the purchase price paid by such Replacement
Lender shall be in the amount of such Affected Lender’s Loans designated in the Replacement Notice
and/or Synthetic Revolving Deposits, as applicable, together with all accrued and unpaid interest
and fees in respect thereof, plus all other amounts (including the amounts demanded and
unreimbursed under Section 4.3, 4.5 and 4.6), owing to such Affected Lender
hereunder and (iii) the applicable Borrower shall pay to the Affected Lender and the Administrative
Agent all reasonable out-of-pocket expenses incurred by the Affected Lender and the Administrative
Agent in connection with such assignment and assumption (including the processing fees described in
Section 10.12). Upon the effective date of an assignment described above, the Replacement
Lender shall become a “Lender” for all purposes under the Loan Documents. Each Lender hereby
grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an
interest) to execute and deliver, on behalf of such Lender as assignor, any assignment agreement
necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances
contemplated by this Section.




     SECTION 4.11 Mitigation. Each Secured Party agrees that if it makes any demand for payment under Section 4.3,
4.4, 4.5 or 4.6, or if any adoption or change of the type described in
Section 4.1 shall occur with respect to it, it will use Reasonable Efforts (consistent with
its internal policy and legal and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, as determined in its sole discretion) to designate a different lending
office if the making of such a designation would reduce or obviate the need for the Borrowers to
make payments under Section 4.3, 4.4, 4.5, or 4.6, or would
eliminate or reduce the effect of any adoption or change described in Section 4.1.



ARTICLE V

CONDITIONS TO LOANS




     SECTION 5.1 Conditions to Closing. The obligations of the Lenders to make the Loans was subject to the prior or concurrent
satisfaction, or waiver in accordance with Section 10.1, of the conditions precedent set
forth in Sections 5.1.1 through 5.1.15 below on the Effective Date.



     SECTION
5.1.1 Resolutions, etc. The Administrative Agent shall have received the following from each Borrower and each Guarantor:




     (a) to the extent provided by such Borrower’s or such Guarantor’s jurisdiction of
organization and/or incorporation, a copy of a good standing certificate (or similar
evidence of continued legal existence), dated a date reasonably close to the Closing Date
for each Borrower and each Guarantor; and




     (b) a certificate, dated the Closing Date, duly executed and delivered by each
Borrower’s and each Guarantor’s Secretary or Assistant Secretary, managing member or general
partner, as applicable, as to




     (i) resolutions of each Borrower’s and each Guarantor’s Board of Directors (or
other managing body, in the case of other than a corporation) then in



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full force and
effect authorizing, to the extent relevant, all aspects of the transactions
contemplated by the Loan Documents applicable to such Borrower or such Guarantor and
the execution, delivery and performance of each Loan Document and the transactions
contemplated hereby and thereby;




     (ii) the incumbency and signatures of those of their respective officers,
managing member or general partner, as applicable, authorized to act with respect to
each Loan Document to be executed by such Borrower or such Guarantor; and




     (iii) the full force and validity of each Organic Document of each Borrower and
each Guarantor and copies thereof,




upon which certificates each Secured Party may conclusively rely until it shall have
received a further certificate of the Secretary, Assistant Secretary, managing member or
general partner, as applicable, of the applicable Borrower or the applicable Guarantor
canceling or amending its prior certificate.



     SECTION 5.1.2 Certificates. The Administrative Agent shall have received the following:




     (a) the Closing Date Certificate, dated the Closing Date and duly executed and
delivered by an Authorized Officer of each Borrower, in which certificate each Borrower
shall agree and acknowledge that the statements made therein shall be deemed to be true and
correct representations and warranties of such Borrower as of such date; and




     (b) copies, certified by an Authorized Officer of the Cayman Borrower, of the Closing
Date Projections.



     SECTION 5.1.3 Delivery of Loan Documents; Notes. The Administrative Agent shall have received (i) each Loan Document duly executed and delivered
by an Authorized Officer of each Borrower and each Guarantor, and (ii) for the account of each
Lender that has requested a Note, such Lender’s Notes duly executed and delivered by an Authorized
Officer of the applicable Borrower.



     SECTION 5.1.4 Collateral Security Arrangements. The Administrative Agent shall have received the following:




     (a) each of the agreements, instruments or documents described in Item 5.1.4 of
the Disclosure Schedule hereto under the caption “Closing Date Collateral Documents,” duly
executed and delivered by the parties thereto, and




     (b) evidence that each of the actions described in Item 5.1.4 of the Disclosure
Schedule hereto under the captions “Closing Date Collateral Perfection” and “Post Closing
Date Collateral Perfection” shall have been duly taken.



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In addition, the Lenders and their counsel shall be satisfied that (i) the Liens granted to the
Collateral Agent, for the benefit of the Secured Parties, in the collateral described in the
documents referred to in clause (a) above are subject to no equal or prior Liens (other
than Permitted Liens); and (ii) no Liens exist on any of such collateral described above other than
the Liens created in favor of the Collateral Agent, for the benefit of the Secured Parties,
pursuant to a Loan Document and Permitted Liens.




     SECTION 5.1.5 Opinions of Counsel. The Administrative Agent shall have received opinions, dated the Closing Date and addressed to
the Administrative Agent, the Collateral Agent and all Lenders, from:




     (a) Skadden, Arps, Slate, Meagher and Flom LLP, counsel to the Borrowers, in
substantially the form set forth in Exhibit H hereto; and




     (b) each of the other counsel specified in Item 5.1.5 of the Disclosure
Schedule, in the respective forms set forth hereto in Exhibit I hereto.



     SECTION 5.1.6 Closing Fees, Expenses, etc. The Administrative Agent shall have received for its own account, or for the account of each
Lender, as the case may be, all fees, costs and expenses due and payable pursuant to Sections
3.3 and, if then invoiced, 10.4.



     SECTION 5.1.7 Satisfactory Legal Form. All documents and legal opinions executed or submitted pursuant hereto by or on behalf of either
Borrower or any Guarantor shall be reasonably satisfactory in form and substance to the Lenders,
the Agents and their counsel, and the Lenders, the Administrative Agent and their counsel shall
have received all information, approvals, opinions, documents or instruments as the Lenders, the
Agents or their counsel may reasonably request.



     SECTION 5.1.8 Patriot Act Disclosures. The Administrative Agent and each Lender shall have received all Patriot Act Disclosures
requested by them prior to execution of this Agreement.



     SECTION 5.1.9 Financial Statements. The Administrative Agent shall have received each of the financial statements described in
Item 6.5(a) and Item 6.5(b) of the Disclosure Schedule hereto.



     SECTION 5.1.10 Compliance with Warranties, No Default, etc. On the Closing Date, the following statements shall be true and correct:




     (a) the representations and warranties set forth in each Loan Document executed and
delivered on or prior to the Closing Date shall, in each case, be true and correct;




     (b) no Default or Event of Default shall have then occurred and be continuing; and



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     (c) no event or act shall have occurred since September 30, 2006 that could reasonably
be expected to have a Material Adverse Effect.



     SECTION 5.1.11 Solvency, etc. The Administrative Agent shall have received a certificate substantially in the form of
Exhibit J hereto from the Cayman Borrower duly executed and delivered by an Authorized
Officer of the Cayman Borrower and dated as of the Closing Date, certifying that the Cayman
Borrower and its Subsidiaries on a consolidated basis after giving effect to the transactions
contemplated hereby, are Solvent.



     SECTION 5.1.12 Necessary Consents; Acknowledgments. The Borrowers shall have obtained all consents and approvals of Governmental Authorities and
other Persons necessary to be obtained by the Closing Date in connection with the transactions
contemplated by the Loan Documents and each of the foregoing shall be in full force and effect, and
the Administrative Agent shall have received satisfactory evidence of such consents and approvals.
All applicable waiting periods with respect to such consents and approvals shall have expired
without any action being taken or threatened by any competent authority which would reasonably be
expected to restrain, prevent or otherwise impose materially burdensome conditions on the
transactions contemplated by the Loan Documents or the other transactions contemplated hereby.



     SECTION 5.1.13 Rating of Loans. The Borrowers shall have caused the Loans to be rated by each of the Rating Agencies.



     SECTION 5.1.14 Evidence of Insurance. The Administrative Agent shall have received certificates from the Borrowers or other evidence
satisfactory to it that all insurance required to be maintained pursuant to Section 7.1.4
is in full force and effect.



     SECTION 5.1.15 Existing Indebtedness. On the Closing Date, the Cayman Borrower and its Subsidiaries shall have (i) repaid in full all
amounts owing under the Senior Credit Agreement and the Bridge Credit Agreement, (ii) terminated
any commitments to lend or make other extensions of credit thereunder and (iii) delivered to
Administrative Agent all documents or instruments necessary to release all Liens securing the
obligations of the Cayman Borrower and its Subsidiaries thereunder.



     SECTION 5.2 Conditions to Restatement. The effectiveness of this Agreement and the obligation of the Issuing Banks to issue Revolving
Letters of Credit and Synthetic Letters of Credit under this Agreement is subject to the
satisfaction of the conditions precedent set forth below:



     SECTION 5.2.1 Certificates. The Administrative Agent shall have received the Restatement Effective Date Certificate, dated
the Restatement Effective Date and duly executed and delivered by an Authorized Officer of each
Borrower, in which certificate each Borrower shall agree and acknowledge that the statements made
therein shall be deemed to be true and correct representations and warranties of such Borrower as
of such date.



     SECTION 5.2.2 Delivery of Loan Documents. The Administrative Agent shall have received (i) this Agreement duly executed and delivered by
an Authorized



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Officer of each Borrower, (ii) the Reaffirmation Agreement duly executed and
delivered by an Authorized Officer of each Guarantor, and (iii) authorizations from each Required
Revolving Lender authorizing the Administrative Agent’s execution and delivery of this Agreement.




     SECTION 5.2.3 Opinions of Counsel. The Administrative Agent shall have received opinions, dated the Restatement Effective Date and
addressed to the Administrative Agent, the Collateral Agent, each Revolving LC Issuer, each
Synthetic LC Issuer and the Lenders, from (i) Skadden, Arps, Slate, Meagher and Flom LLP, counsel
to the Borrowers, (ii) Walkers, Cayman Islands counsel to the Loan Parties, (iii) Kremer Associés &
Clifford Chance, joint Luxembourg counsel to the Borrowers and the Administrative Agent, and (iv)
Tozzini Freire Advogados, joint Luxembourg counsel to the Borrowers and the Administrative Agent,
in the case of clause (i), (ii), (iii) and (iv) in form and
substance reasonably satisfactory to the Lenders, the Agents and their counsel.



     SECTION 5.2.4 Collateral Security Arrangements. The Administrative Agent shall have received each of the agreements, instruments or documents
described in Item 5.1.4(D) hereto under the caption “Restatement Effective Date Collateral
Documents,” duly executed and delivered by the parties thereto.



     SECTION 5.2.5 
Restatement Fees, Expenses, etc. The Administrative Agent shall have received for its own account, or for the account of each
Lender, as the case may be, all fees, costs and expenses due and payable pursuant to Sections
3.3 and, if then invoiced, 10.4.



     SECTION 5.2.6 Satisfactory Legal Form. All documents and legal opinions executed or submitted pursuant hereto by or on behalf of either
Borrower or any Guarantor shall be reasonably satisfactory in form and substance to the Lenders,
the Agents and their counsel, and the Lenders, the Administrative Agent and their counsel shall
have received all information, approvals, opinions, documents or instruments as the Lenders, the
Agents or their counsel may reasonably request.



     SECTION 5.3 Conditions to Revolving Loan and Synthetic Revolving Loan Borrowings and the
Issuance of Letters of Credit. Other than Revolving Loans or Synthetic Revolving Loans made pursuant to Section 2.5.2
or Section 2.5.4, the obligations of the Administrative Agent and the Lenders to make a
Revolving Loan or a Synthetic Revolving Loan or an Issuing Bank to issue a Letter of Credit shall,
in each case, be subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in Sections 5.3.1 through 5.3.4 below.



     SECTION 5.3.1 Borrowing Request or Issuance Request.



     (a) The Administrative Agent shall have received a Borrowing Request with respect to the
Revolving Loans or Synthetic Revolving Loans, as the case may be. The delivery of a Borrowing
Request by the Cayman Borrower and the acceptance by the Cayman Borrower of the proceeds of the
Revolving Loans or Synthetic Revolving Loans, as the case may be, shall constitute a representation
and warranty by the Cayman Borrower that on the date of the making of the Revolving Loans or
Synthetic Revolving Loans (both immediately before and after giving effect to the Revolving Loans
or Synthetic Revolving Loans, respectively, and the application of the proceeds thereof) each of
the conditions set forth below shall have been satisfied.



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     (b) The Administrative Agent and the applicable Issuing Bank shall have received an Issuance
Request with respect to the Revolving Letters of Credit or Synthetic Letters of Credit, as the case
may be. The delivery of an Issuance Request by the Cayman Borrower shall constitute a
representation and warranty by the Cayman Borrower that on the date of the issuance of the
Revolving Letters of Credit or Synthetic Letters of Credit (both immediately before and after the
issuance of the Revolving Letters of Credit or Synthetic Letters of Credit, respectively, and the
application of the proceeds thereof) each of the conditions set forth below shall have been
satisfied.



     SECTION 5.3.2 Closing Conditions. Each of the conditions set forth in Section 5.1 shall have been satisfied on the Closing Date.



     SECTION 5.3.3 Representations and Warranties. The representations and warranties set forth in Article VI shall be true and correct as
of the date of the making of such Revolving Loan or Synthetic Revolving Loan or the issuing of such
Letter of Credit, as the case may be (except for any such representation or warranty that relates
solely to a specific date, in which case, such representation or warranty shall have been true and
correct as of such date).



     SECTION 5.3.4 No Default. No Default or Event of Default shall have occurred and be continuing.



ARTICLE VI

REPRESENTATIONS AND WARRANTIES




     To induce the Lenders to enter into this Agreement and to make Loans and Synthetic Revolving
Deposits hereunder, each Borrower represents and warrants to each Lender as of the Restatement
Effective Date as set forth in this Article VI.



     SECTION 6.1 Organization, etc. The Cayman Borrower and its Subsidiaries is validly organized and/or incorporated and existing
and (if applicable) in good standing under the laws of the state or jurisdiction of its
incorporation or organization, is duly qualified to do business and is in good standing as a
foreign entity in each jurisdiction where the nature of its business requires such qualification
except where failure to so qualify would not, in any instance or in the aggregate, reasonably be
expected to have a Material Adverse Effect, and has full power and authority and holds all
requisite governmental licenses, permits and other approvals to own and hold under lease its
property and to conduct its business substantially as currently conducted by it. Each Borrower and
each Guarantor has full power and authority and holds all requisite governmental licenses, permits
and other approvals to enter into and perform its Obligations under each Loan Document to which it
is a party.



     SECTION
6.2 Due Authorization, Non-Contravention, etc. The (i) execution, delivery and performance by each Borrower and each Guarantor of the Loan
Documents executed or to be executed by it, (ii) participation of the Cayman Borrower and its
Subsidiaries in the consummation of all aspects of the transactions contemplated by the Loan
Documents, and (iii) execution, delivery and performance by the Cayman Borrower and its
Subsidiaries of the agreements executed and delivered by it in connection with the transactions
contemplated by the



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Loan Documents are in each case within such Person’s powers, have been duly
authorized by all necessary action, and do not





     (a) contravene any (i) of such Person’s Organic Documents, (ii) court decree or order
binding on or affecting such Person or (iii) law or governmental regulation binding on or
affecting any such Person; or




     (b) result in (i) or require the creation or imposition of, any Lien on either
Borrower’s or any Material Guarantor’s properties (except as permitted by the Loan
Documents) or (ii) a default under any contractual restriction binding on or affecting
either Borrower or any Material Guarantor.



     SECTION 6.3 Government Approval, Regulation, etc.



     (a) No authorization or approval or other action by, and no notice to or filing with, any
Governmental Authority or other Person (other than those that have been, or on the Effective Date
will be, duly obtained or made and which are, or on the Effective Date will be, in full force and
effect) is required for the consummation of the transactions contemplated by the Loan Documents or
the due execution, delivery or performance by the Cayman Borrower and its Subsidiaries of any Loan
Document to which any of them is a party, in each case by the parties thereto or the consummation
of the transactions contemplated by the Loan Documents. Neither
the Cayman Borrower nor any of its Subsidiaries is an “investment company” within the meaning
of the Investment Company Act of 1940, as amended.



     (b) The Cayman Borrower and its Subsidiaries are in compliance with all laws, rules,
regulations and orders applicable to the conduct of its business or the ownership of its
properties, except where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect.



     SECTION 6.4 Validity, etc. Each Loan Document to which either Borrower or any Guarantor is a party constitutes the legal,
valid and binding obligations of each such Person, enforceable against each such Person in
accordance with their respective terms (except, in any case, as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights
generally and by principles of equity, and except to the extent specified in the relevant legal
opinions addressed to the Lenders and delivered on the Closing Date).



     SECTION 6.5 Financial Information.



     (a) Except as set forth therein, each of the financial statements described in Item
6.5(a) of the Disclosure Schedule (including the financial statements as at September 30, 2006)
hereto have been furnished to the Administrative Agent and each Lender and have been prepared in
accordance with GAAP (or the other accounting principles specified on said Schedule) consistently
applied (other than with respect to the allocation of the purchase price Ashmore Energy
International Limited paid for the purchase of its interest in Prisma Energy International Inc. in
2006, which allocation has not been completed as of this date), and present fairly the consolidated
or consolidating (as the case may be) financial condition, results of operations and



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all cashflows
of the Persons covered thereby as at the dates thereof and the results of their operations for the
periods then ended.




     (b) Each of the pro forma financial statements described in Item 6.5(b) of the
Disclosure Schedule (including the Closing Date Projections) hereto have been furnished to the
Administrative Agent and each Lender and have been prepared in good faith by the Borrowers, based
on assumptions believed by the Borrowers on the Closing Date to be reasonable, are based on the
best information available to the Borrowers as of the date of delivery thereof, accurately reflect
all adjustments required to be made to give effect to the transactions contemplated by the Loan
Documents, and present fairly on a pro forma basis the financial condition of the Persons covered
thereby as of such date and the pro forma results of operations for such period,
assuming that the relevant transactions had actually occurred at such date or at the beginning of
such period, as the case may be.



     SECTION 6.6 No Material Adverse Change; Solvency. No event or act has occurred since September 30, 2006 that could reasonably be expected to have
a Material Adverse Effect. The Cayman Borrower, both immediately before and immediately after
giving effect to the transactions contemplated by the Loan Documents, is Solvent.



     SECTION 6.7 Litigation. There is no pending or, to the knowledge of the Cayman Borrower or any of its Subsidiaries,
threatened litigation, action or proceeding




     (a) except as disclosed in Item 6.7 of the Disclosure Schedule, affecting the
Cayman Borrower or any of its Subsidiaries, or any of their respective properties,
businesses, assets or revenues, which could reasonably be expected to have a Material
Adverse Effect, and no adverse development has occurred in any litigation, arbitration or
governmental investigation or proceeding disclosed in Item 6.7 of the Disclosure
Schedule; or




     (b) which purports to affect the legality, validity or enforceability of any Loan
Document or the transactions contemplated by the Loan Documents.



     SECTION 6.8 Subsidiaries. As of the Closing Date, the Cayman Borrower has no Subsidiaries, except those Subsidiaries which
are identified in Item 6.8 of the Disclosure Schedule. The U.S. Borrower has no
Subsidiaries.



     SECTION 6.9 Ownership of Properties. The Cayman Borrower and its Subsidiaries own good and marketable title to, valid leasehold
interests in all of their respective properties and assets, real and personal, tangible and
intangible, of any nature whatsoever (including patents, trademarks, trade names, service marks and
copyrights), free and clear of all Liens, charges or claims (including infringement claims with
respect to patents, trademarks, copyrights and the like) except as permitted pursuant to
Section 7.2.3 or where the failure to have such good and marketable title would not
reasonably be expected to have a Material Adverse Effect.



     SECTION 6.10 Taxes. The Cayman Borrower and its Subsidiaries have filed all U.S. federal and all other material tax
returns and reports required by law to have been filed by it and has paid all Taxes thereby shown
to be due and owing, except any such Taxes which are being



73









 




diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set
aside on its books.




     SECTION 6.11 Pension and Welfare Plans. During the 12-consecutive-month period prior to the Closing Date, no steps have been taken to
terminate any Pension Plan, and no contribution failure has occurred with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA. No condition exists or event
or transaction has occurred with respect to any Pension Plan which might result in the incurrence
by either Borrower or any member of the Controlled Group of any material liability, fine or
penalty. As of the Closing Date, except as disclosed in Item 6.11 of the Disclosure
Schedule, neither the Cayman Borrower, its Subsidiaries nor any member of the Controlled Group has
any contingent liability with respect to any post-retirement benefit under a Welfare Plan, other
than liability for continuation coverage described in Part 6 of Title I of ERISA.



     SECTION 6.12 Environmental Warranties. As of the Closing Date, except as set forth in Item 6.12 of the Disclosure Schedule:




     (a) all facilities and property (including underlying groundwater) owned, operated or
leased by either the Cayman Borrower or any of its Subsidiaries have been, and continue to
be, owned, operated or leased by either the Cayman Borrower or any of its Subsidiaries in
material compliance with all Environmental Laws;




     (b) there have been no past, and there are no pending or threatened (i) claims,
complaints, notices or requests for information received by either the Cayman Borrower or
any of its Subsidiaries with respect to any actual or alleged material violation of any
Environmental Law, or (ii) complaints, notices or inquiries to either the Cayman Borrower or
any of its Subsidiaries regarding any actual or potential material liability under any
Environmental Law;




     (c) there have been no releases of Hazardous Materials at, on, from or under any
property now or previously owned or leased by either the Cayman Borrower or any of its
Subsidiaries that have, or could reasonably be expected to have, a Material Adverse Effect;




     (d) the Cayman Borrower and its Subsidiaries have been issued and maintained in full
force and effect, and are in material compliance with, all material permits, certificates,
approvals, licenses and other authorizations relating to environmental matters;




     (e) there are no underground storage tanks, active or abandoned, including petroleum
storage tanks, on or under any property now or previously owned or leased by the Cayman
Borrower or any of its Subsidiaries that, singly or in the aggregate, have, or could
reasonably be expected to have, a Material Adverse Effect;




     (f) neither the Cayman Borrowers nor any of its Subsidiaries has directly transported
or directly arranged for the transportation of any Hazardous Material to any location which
is the subject of enforcement actions by any Governmental Authority or



74









 






other investigations which may lead to material claims against the Cayman Borrower or
such Subsidiary for any remedial work, damage to natural resources or personal injury;




     (g) there are no polychlorinated biphenyls or friable asbestos present at any property
now or previously owned or leased by either the Cayman Borrower or any of its Subsidiaries
that, singly or in the aggregate, have, or could reasonably be expected to have, a Material
Adverse Effect; and




     (h) no conditions exist at, on or under any property now or previously owned or leased
by the Cayman Borrower which, with the passage of time, or the giving of notice or both,
would give rise to material liability under any Environmental Law.



     SECTION 6.13 Accuracy of Information. None of the factual information heretofore or contemporaneously furnished in writing to
any Secured Party by or on behalf of the Cayman Borrower or any of its Subsidiaries in connection
with any Loan Document or any transaction contemplated hereby contains any untrue statement of a
material fact, or omits to state any material fact necessary to make such factual information not
misleading, and no other factual information hereafter furnished in connection with any Loan
Document by or on behalf of the Cayman Borrower or any of its Subsidiaries to any Secured Party
will contain any untrue statement of a material fact or will omit to state any material fact
necessary to make such factual information not misleading on the date as of which such information
is dated or certified. This representation shall not apply to the Closing Date Projections or
information of a general economic or general industry nature furnished to any Secured Party by or
on behalf of the Cayman Borrowers or any of its Subsidiaries.



     SECTION 6.14 Regulations U and X. Neither the Cayman Borrower nor any of its Subsidiaries is engaged in the business of extending
credit for the purpose of buying or carrying margin stock, and no proceeds of any Loans will be
used to purchase or carry margin stock or otherwise for a purpose which violates, or would be
inconsistent with, F.R.S. Board Regulation U or Regulation X. Terms for which meanings are
provided in F.R.S. Board Regulation U or Regulation X or any regulations substituted therefor, as
from time to time in effect, are used in this Section with such meanings.



     SECTION 6.15 Absence of Any Undisclosed Liabilities. As of the Closing Date, there are no liabilities of the Cayman Borrowers or its Subsidiaries of
any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise,
other than those liabilities provided for or disclosed in the financial statements delivered on or
prior to the Closing Date or those liabilities which could not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect.



     SECTION 6.16 Labor Matters. (a) Neither the Cayman Borrower nor any of its Subsidiaries is a party to any labor dispute
that could reasonably be expected to have a Material Adverse Effect and there are no strikes or
walkouts relating to any labor contracts to which such Person is a party or is otherwise subject;
(b) there is no unfair labor practice complaint pending against either the Cayman Borrower or any
of its Subsidiaries or, to the knowledge of the Cayman Borrower, threatened against any of them
that could reasonably be expected to have a Material Adverse Effect; (c) there is no grievance or
significant arbitration proceeding arising



75









 




out of or under any collective bargaining agreement
pending against the Cayman Borrower or any of its Subsidiaries or, to the knowledge of the Cayman
Borrower, threatened against any of them that could reasonably be expected to have a Material
Adverse Effect; (d) no slowdown or stoppage is pending against the Cayman Borrower or any of its
Subsidiaries, or to the knowledge of the Cayman Borrower, threatened against the Cayman Borrower or
any of its Subsidiaries, that could reasonably be expected to have a Material Adverse Effect; (e)
neither the Cayman Borrower nor any of its Subsidiaries is engaged in any unfair labor practice
that could reasonably be expected to have a Material Adverse Effect; and (f) as of the Closing
Date, except as set forth in Item 6.16 of the Disclosure Schedule (none of which items
disclosed therein, individually or in the aggregate, have, or could reasonably be expected to have,
a Material Adverse Effect), there are no pending or threatened claims, complaints, notices,
inquiries or requests for information received by the Cayman Borrower or any of its Subsidiaries
with respect to any alleged violation of, or potential liability under, any law relating to
employee health and safety which could reasonably be expected to result in liability to such
Borrower or such Subsidiary in an aggregate amount exceeding $50,000,000 (exclusive of amounts
fully covered by insurance (less any applicable deductible) and as to which the insurer has
acknowledged its responsibility to cover) or which could reasonably be expected to result in a
Material Adverse Effect. As of the Closing Date, except as set forth in Item 6.16 of the
Disclosures Schedule, neither the Cayman Borrower nor any of its Subsidiaries is a party to or
bound by any collective bargaining agreement.




     SECTION 6.17 Legal Form. This Agreement and each other Loan Document to which either Borrower or any Guarantor is a party
is in proper legal form under the law that governs this Agreement or such Loan Document and is
enforceable against each Borrower and each Guarantor in accordance with its terms under the law of
organization of such Borrower or such Guarantor (except, in any case, as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally and by principles of equity, and except to the extent specified in the relevant
legal opinions addressed to the Lenders and delivered on the Closing Date). All formalities
required, with respect to this Agreement and each other Loan Document to which either Borrower or
any Guarantor is a party, in the jurisdiction of organization of such Borrower or such Guarantor,
for the validity and enforceability of this Agreement and each such other Loan Document (including
any necessary registration, recording or filing with any court or other authority) have been
accomplished, and, as of the Closing Date, except as set forth in Item 6.17 of the
Disclosure Schedule hereto, no stamp, registration or similar Taxes are required to be paid in
connection with the Loan Documents and, as of the
Closing Date, except as set forth in Item 6.17 of the Disclosure Schedule hereto, no
notarization is required, for the validity and enforceability thereof.



     SECTION 6.18 Ranking. This Agreement and each other Loan Document to which either Borrower or any Guarantor is a party
and the obligations evidenced hereby and thereby are and will at all times be direct and
unconditional general obligations of such Borrower or such Guarantor and rank and will at all times
rank in right of payment and otherwise at least pari passu with all other senior secured
Indebtedness (other than any such Indebtedness to the extent that such Indebtedness is Cash
Collateralized) of such Borrower or such Guarantor, whether now existing or hereafter outstanding.



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     SECTION 6.19 Collateral. Set forth in Item 6.19(a) of the Disclosure Schedule is a complete and accurate
description as of the Closing Date of the authorized Capital Securities of each Subsidiary to be
pledged on the Closing Date in accordance with the Security Agreements by class, and, as of the
Closing Date, a description of the number of shares, units or other interest of each such class
that are issued and outstanding. Other than as described in Item 6.19 of the Disclosure
Schedule, as of the Closing Date, there are no subscriptions, options, warrants, or calls relating
to any shares of such Capital Securities, including any right of conversion or exchange under any
outstanding security or other instrument. All such Capital Securities have been duly authorized
and validly issued, and (to the extent applicable) are fully paid and nonassessable.



     SECTION 6.20 Commercial Activity; Absence of Immunity. Each Borrower and each Guarantor is subject to civil and commercial law with respect to its
obligations under each of the Loan Documents to which it is a party. The execution, delivery and
performance by each Borrower and each Guarantor of each Loan Document to which it is (or will be) a
party constitute private and commercial acts rather than public or governmental acts. Neither of
the Borrowers nor any Guarantor, nor any of their respective properties or revenues, is entitled to
any right of immunity in any jurisdiction from suit, court jurisdiction, judgment, attachment
(whether before or after judgment), set-off or execution of a judgment or from any other legal
process or remedy relating to the obligations of either Borrower or any Guarantor under any of the
Loan Documents to which it is a party.



     SECTION 6.21 Subsidiary Distributions. As of the Closing Date, except as disclosed in Item 6.21 of the Disclosure Schedule,
neither the Cayman Borrower nor any of its Subsidiaries is party to any agreement prohibiting or
restricting the ability of such Person to make any payments, directly or indirectly, the Cayman
Borrower, including by way of dividends, advances, repayments of loans, reimbursements of
management and other intercompany charges, expenses or accruals or other returns on investments.



ARTICLE VII

COVENANTS




     SECTION 7.1 Affirmative Covenants. Each Borrower agrees with each Lender and the Administrative Agent that until the Termination
Date has occurred, the Borrowers will, and the Cayman Borrower will cause its Subsidiaries to,
perform or cause to be performed the obligations set forth below.



     SECTION
7.1.1 Financial Information, Reports, Notices, etc. The Borrowers will furnish to the Administrative Agent, who will distribute to each Lender,
copies of the following financial statements, reports, notices and information:




     (a) as soon as available and in any event within 60 days after the end of each of the
first three Fiscal Quarters of each Fiscal Year, the following:




     (i) unaudited consolidated balance sheets of the Cayman Borrower and its
Subsidiaries as of the end of such Fiscal Quarter and consolidated statements of
income and cash flow of the Cayman Borrower and its Subsidiaries



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for such Fiscal Quarter and for the period commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter, and including (in each case), in
comparative form the figures for the corresponding Fiscal Quarter in, and year to
date portion of, the immediately preceding Fiscal Year (except with respect to the
2005 Fiscal Year), certified as complete and correct by the chief financial or
accounting Authorized Officer of the Cayman Borrower as fairly presenting the
financial condition, the results of operations, all cash flows of the Cayman
Borrower and its Subsidiaries in accordance with GAAP (subject to normal year-end
audit adjustments), and




     (ii) an unaudited balance sheet of the Cayman Borrower as of the end of such
Fiscal Quarter and statements of income and cash flow of the Cayman Borrower for
such Fiscal Quarter and for the period commencing at the end of the previous Fiscal
Year and ending with the end of such Fiscal Quarter, and including (in each case),
in comparative form the figures for the corresponding Fiscal Quarter in, and year to
date portion of, the immediately preceding Fiscal Year, certified as complete and
correct by the chief financial or accounting Authorized Officer of the Cayman
Borrower as fairly presenting the financial condition, the results of operations and
the cash flows of the Cayman Borrower in accordance with GAAP (subject to normal
year-end audit adjustments);




     (b) as soon as available and in any event within 90 days after the end of each Fiscal
Year (or in the case of Fiscal Year ending 2006, by May 30, 2007), the following:




     (i) a copy of the consolidated balance sheet of the Cayman Borrower and its
Subsidiaries, and the related consolidated statements of income and cash flow of the
Cayman Borrower and its Subsidiaries for such Fiscal Year (in each case with the
notes thereto), setting forth in comparative form the figures for the immediately
preceding Fiscal Year (except with respect to the 2005 Fiscal Year), audited
(without any Impermissible Qualification) by Deloitte & Touche LLP (or other
independent public accountants reasonably acceptable to the Required Lenders), and




     (ii) an audited balance sheet of the Cayman Borrower as of the end of such
Fiscal Year and statements of income and cash flow of the Cayman Borrower for such
Fiscal Year, setting forth in comparative form the figures for the immediately
preceding Fiscal Year (except with respect to the 2005 Fiscal Year), audited
(without any Impermissible Qualification) by Deloitte & Touche LLP (or other
independent public accountants reasonably acceptable to the Required Lenders);




provided, however, that, from and after the date on which the Cayman
Borrower becomes a “foreign private issuer” (as defined in the Exchange Act) as a
result of the initial public sale of the equity securities of the Cayman Borrower,
the Borrowers shall be deemed to have satisfied their obligations under this
clause (b) if they deliver to the Administrative Agent (who will distribute
to each Lender) a



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copy of the Cayman Borrower’s annual report on Form 20-F as and
when required under the rules and regulations of the applicable United States
exchange on which such equity securities are traded;




     (c) concurrently with the delivery of the financial information pursuant to clauses
(a) and (b), a Compliance Certificate, executed by the chief financial or
accounting Authorized Officer of the Cayman Borrower, (i) showing compliance with the
financial covenants set forth in Section 7.2.4, (ii) stating that no Default has
occurred and is continuing (or, if a Default has occurred, specifying the details of such
Default and the action that the Cayman Borrower or any applicable Subsidiary has taken or
proposes to take with respect thereto), and (iii) in the case of a Compliance Certificate
delivered concurrently with the financial information pursuant to clause (b), a
report on financial covenants by Deloitte & Touche LLP (or other independent accountants
reasonably acceptable to the Required Lenders) stating that nothing has come to their
attention that causes them to believe that the Borrowers have failed to comply with the
covenants of Section 7.2.4, insofar as such Sections or such calculation relate to
financial and accounting matters, and (iv) describing any amendment to or modification of
any power purchase agreement (except those entered into pursuant to a public tender), any
concession agreement or any supply agreement with a stated term of one year or longer and
with respect to which the aggregate amount payable thereunder in any year could reasonably
be expected to be more than $10,000,000 entered into by the Cayman Borrower or any of its
Subsidiaries during the most-recently ended Fiscal Quarter, or any
new power purchase agreement (other than those entered into pursuant to a public
tender), any concession agreement or any supply agreement with a stated term of one year or
longer and with respect to which the aggregate amount payable thereunder in any year could
reasonably be expected to be more than $10,000,000 entered into by the Cayman Borrower or
any of its Subsidiaries during the most-recently ended Fiscal Quarter, which description
shall be in reasonable detail and shall include a summary of the provisions thereof that
could reasonably be expected to have a financial impact on the Cayman Borrower or any of its
Subsidiaries (including a change in revenue or a change in the cost of goods sold) and shall
certify that the Cayman Borrower does not believe that such amendment, modification or new
agreement could reasonably be expected to result in an Event of Default;




     (d) as soon as possible and in any event within ten Business Days after either Borrower
obtains knowledge of the occurrence of a Default, a statement of an Authorized Officer of
the Cayman Borrower setting forth details of such Default and the action which the Cayman
Borrower has taken and proposes to take with respect thereto;




     (e) as soon as possible and in any event within ten Business Days after either Borrower
obtains knowledge of (i) any development in any existing litigation, action, proceeding or
labor controversy that could reasonably be expected to result in liability to either
Borrower of $10,000,000 or more (or the equivalent in other currencies), or (ii) the
commencement of any litigation, action, proceeding or labor controversy that could
reasonably be expected to result in liability to either Borrower of $10,000,000 or more (or
the equivalent in other currencies);



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     (f) promptly after the sending or filing thereof, copies of all reports, notices,
prospectuses and registration statements that the Cayman Borrower files with the SEC or any
national securities exchange;




     (g) promptly upon becoming aware of (i) the institution of any steps by any Person to
terminate any Pension Plan, (ii) the failure to make a required contribution to any Pension
Plan if such failure is sufficient to give rise to a Lien under Section 302(f) of ERISA,
(iii) the taking of any action with respect to a Pension Plan which could result in the
requirement that any Subsidiary furnish a bond or other security to the PBGC or such Pension
Plan, or (iv) the occurrence of any event with respect to any Pension Plan which could
result in the incurrence by any Subsidiary of any material liability, fine or penalty,
notice thereof and copies of all documentation relating thereto;




     (h) promptly upon receipt thereof, copies of all “management letters” relating to
material weaknesses submitted to the Cayman Borrower by the independent public accountants
referred to in clause (b) in connection with each audit made by such accountants;
and




     (i) such other financial and other information as any Lender through the Administrative
Agent may from time to time reasonably request (including information
and reports in such detail as the Administrative Agent may reasonably request with
respect to the terms of and information provided pursuant to the Compliance Certificate).



     SECTION
7.1.2 Maintenance of Existence; Compliance with Laws, etc. Each Borrower will, and the Cayman Borrower will cause each of its Subsidiaries to, preserve
and maintain its legal existence (except as otherwise permitted by Section 7.2.10), and
comply (except to the extent that the failure to comply could not reasonably be expected to have a
Material Adverse Effect) in all respects with (a) except as set forth in Item 7.1.2(a) of
the Disclosure Schedule, the terms of (and shall perform or cause the applicable Subsidiary to
perform) its obligations under all agreements to which it is a party and (b) except as set forth on
Item 7.1.2(b) of the Disclosure Schedule, all applicable laws, rules, regulations and
orders, including the payment (before the same become delinquent), of all Taxes, imposed upon the
Cayman Borrower or its Subsidiaries or upon their property except to the extent being diligently
contested in good faith by appropriate proceedings and for which adequate reserves in accordance
with Local GAAP have been set aside on the books of such Borrower or its Subsidiaries, as
applicable.



     SECTION 7.1.3 Maintenance of Properties. Except as set forth in Item 7.1.3 of the Disclosure Schedule, each Borrower will, and
the Cayman Borrower will cause each of its Subsidiaries to, maintain, preserve, protect and keep
its and their respective properties in good repair, working order and condition (ordinary wear and
tear excepted), and make necessary repairs, renewals and replacements so that the business carried
on by the Cayman Borrower and its Subsidiaries may be properly conducted at all times (except to
the extent that the failure to comply could not reasonably be expected to have a Material Adverse
Effect), unless the Cayman Borrower or its Subsidiary determines in good faith that the continued
maintenance of such property is no longer economically desirable, necessary or useful to the
business of such



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Borrower or any of its Subsidiaries or the Disposition of such property is
otherwise permitted by Section 7.2.10 or 7.2.11.




     SECTION 7.1.4 Insurance. Each Borrower will, and the Cayman Borrower will cause each of its Subsidiaries to maintain:




     (a) insurance on its property with financially sound and reputable insurance companies
against loss and damage (i) that is consistent with prudent utility practice, or (ii) in at
least the amounts (and with only those deductibles) customarily maintained, and against such
risks (including fire and other risks insured against by extended coverage) as are typically
insured against in the same general area, by Persons of comparable size engaged in the same
or similar business as the Cayman Borrower and its Subsidiaries;




     (b) liability insurance in customary amounts for companies of comparable size engaged
in the same or similar business of the Cayman Borrower and its Subsidiaries; and




     (c) all worker’s compensation, employer’s liability insurance or similar insurance as
may be required under the laws of any state or jurisdiction in which it may be engaged in
business.



     SECTION 7.1.5 Books and Records. Each Borrower will, and the Cayman Borrower will cause each of its Subsidiaries to, keep books
and records in accordance with the applicable local jurisdiction’s generally accepted accounting
principles (which, in the case of each Borrower, is GAAP) and, to the extent those principles are
not GAAP, reconciled by the Borrowers to GAAP, which accurately reflect all of its business affairs
and transactions and permit each Lender and each Agent and any of their respective representatives,
at reasonable times and intervals upon reasonable notice to, and coordination with, the Borrowers,
to visit each Borrower’s and each of the Cayman Borrower’s Subsidiary’s offices, to discuss such
Subsidiary’s financial matters with its officers and employees, and its independent public
accountants (and, to the extent its independent public accountant so permits, the Borrowers hereby
authorize such independent public accountant to discuss each Subsidiary’s financial matters with
each Lender or Agent or their representatives whether or not any representative of such Borrower or
such Subsidiary is present) and to examine (and photocopy extracts from) any of its books and
records, provided that the Borrowers shall have no obligation to cause Trakya to comply
with this Section 7.1.5. During the continuance of any Event of Default (but not
otherwise), the Borrowers shall pay all of the costs and expenses of each Lender and each Agent in
connection with any visit made pursuant to this Section 7.1.5, including the expenses and
any fees of any such independent public accountant.



     SECTION 7.1.6 Environmental Law Covenant. Each Borrower will, and the Cayman Borrower will cause each of its Subsidiaries to,




     (a) except as set forth in Item 7.1.6 of the Disclosure Schedule, use and
operate all of its and their facilities and properties in material compliance with all
applicable Environmental Laws, keep all necessary permits, approvals, certificates, licenses
and other authorizations relating to environmental matters in full force and effect



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and remain in material compliance therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws. For purposes of this Section
7.1.6(a), non-compliance by the Cayman Borrower or any of its Subsidiaries with any
applicable Environmental Law shall be deemed not to constitute a breach of this covenant
provided that, upon learning of any actual or suspected 

non-compliance, such
Borrower and the relevant Subsidiaries shall promptly undertake all Reasonable Efforts to
achieve compliance (or, if applicable, contest in good faith by appropriate proceedings the
applicable Environmental Law at issue and (to the extent required by Local GAAP) provide on
the books of the Cayman Borrower or any of its Subsidiaries, as the case may be, reserves in
conformity with Local GAAP with respect thereto), and provided further that,
in any case, such non-compliance, and any other non-compliance with
Environmental Law, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect; and




     (b) promptly notify the Administrative Agent and provide copies upon receipt of all
written claims, complaints, notices or inquiries relating to the condition of its facilities
and properties in respect of, or as to compliance with, Environmental Laws, except to the
extent that any resolution regarding the same could not reasonably be expected to result in
an aggregate liability to the Cayman Borrower and its Subsidiaries of $10,000,000 or more,
and shall promptly resolve any material non-compliance with Environmental Laws (except to
the extent that the material non-compliance thereof is currently being contested in good
faith by appropriate proceedings) and use Reasonable Efforts to keep its property free of
any Lien imposed by any Environmental Law.



     SECTION 7.1.7 Use of Proceeds. Each Borrower will apply the proceeds of the Term Loans to satisfy and discharge all amounts
owing under the Senior Credit Agreement and the Bridge Credit Agreement on the Closing Date, and
the Cayman Borrower will apply the proceeds of the Revolving Loans, the Revolving Letters of Credit
and the Synthetic Letters of Credit for general corporate purposes, including to make Investments
permitted hereunder or otherwise permitted by the Lenders.



     SECTION 7.1.8 Collateral Requirements and Further Assurances. Each Borrower will, and the Cayman Borrower will cause each of its Subsidiaries to:




     (a) execute any documents, agreements and instruments, and take all further action that
may be required under applicable law, or that the Administrative Agent may reasonably
request, in order to effectuate the transactions contemplated by the Loan Documents and in
order to grant, preserve, protect and perfect the validity of the Liens (which shall be
subject to no equal or prior Liens other than Permitted Liens) created or intended to be
created pursuant to the Loan Documents, which for the avoidance of doubt will not include
Liens with respect to the Cayman Borrower’s interest, if any, in Prisma Energy Accroven
Holdings Ltd., Prisma Energy Panama Holdings Ltd. or Prisma Energy Guatemala Holdings Ltd.
In addition, each Borrower will, and the Cayman Borrower will cause each of its Subsidiaries
to do each of the things described in Item 7.1.8 of the Disclosure Schedule by the
respective dates specified therein,



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     (b) execute any documents, agreements and instruments, and take all further action that
may be required under applicable law, or that the Administrative Agent may reasonably
request, in order to grant, preserve, protect and perfect the validity of a Lien on the (i)
Capital Securities of Subsidiaries of the Cayman Borrower representing the highest level
holding company holding the Capital Securities of a Subsidiary acquired by the Cayman
Borrower or any of its Subsidiaries after the Closing Date, (ii) secured loans made by the
Cayman Borrower to any of its Subsidiaries, in each case, to the extent such
Capital Securities or secured loans, as applicable, are not subject to an existing Lien
securing the Obligations,




     (c) execute any documents, agreements and instruments, and take all further action that
may be required under applicable law, or that the Administrative Agent may reasonably
request, in order to cause, to the extent not prohibited by applicable law or any
contractual limitation applicable to it, each newly acquired or formed Subsidiary (acquired
or formed after the Closing Date) that is a top-tier holding company Subsidiary of the
Cayman Borrower holding (directly or indirectly) the Capital Securities of any
operating-level company of the Cayman Borrower, to become a party to the applicable Guaranty
as a guarantor thereunder, and




     (d) promptly notify the Administrative Agent in writing of secured loans made by the
Cayman Borrower to ETB — Energia Total do Brasil Ltda., and execute any documents,
agreements and instruments, and take all further action that may be required under
applicable law, or that the Administrative Agent may reasonably request, in order to grant,
preserve, protect and perfect the validity of a Lien on such secured loans.



     SECTION 7.1.9 Hedging Obligations. Each Borrower shall comply with the policy regarding entering into Hedging Agreements and
incurring Hedging Obligations described in Item 7.1.9 of the Disclosure Schedule.



     SECTION 7.2 Negative Covenants. Each Borrower covenants and agrees with each Lender and the Administrative Agent that until the
Termination Date has occurred, such Borrower will, and the Cayman Borrower will cause its
Subsidiaries to, perform or cause to be performed the obligations set forth below.



     SECTION 7.2.1 Business Activities. Each Borrower will not, and the Cayman Borrower will not permit any of its Subsidiaries (other
than Promigas) to, engage in any business activities except businesses in connection with the
energy industry (including energy generation, production, transmission, distribution, services and
storage) and activities reasonably incidental thereto. The Cayman Borrower will not permit
Promigas to cease to be principally engaged in businesses in connection with the energy industry
(including energy generation, production, transmission, distribution, services and storage) and
activities reasonably incidental thereto.



     SECTION 7.2.2 Indebtedness. Each Borrower will not, and the Cayman Borrower will not permit any of its Subsidiaries to,
create, incur, assume or permit to exist any Indebtedness, other than:



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     (a) the Loans, and refinancings of the Loans so long as in respect of the refinancing
of the Loans, the following conditions are met:




     (i) the covenants for such refinancing Indebtedness shall not be more
restrictive in any material respect than the covenants in this Agreement as in
effect at the time of such refinancing, and




     (ii) the amortization schedule of such refinancing Indebtedness shall be
identical to the remaining amortization schedule of the Loans or have a weighted
average life to maturity longer than that of the remaining weighted average life to
maturity of the Loans;




     (b) Subordinated Debt;




     (c) (i) Indebtedness outstanding as of the Effective Date and (ii) any refinancing of
such Indebtedness (and any subsequent refinancing of any refinancing Indebtedness permitted
by this Section 7.2.2(c)) so long as:




     (1) the principal amount of such refinancing Indebtedness is not in
excess of that which is outstanding on the Effective Date together with all
premiums, make-whole payments and accrued and unpaid interest, and
reasonable fees and expenses incurred in connection with such refinancing
and the tenor or weighted average life to maturity of such indebtedness is
longer than that of the Indebtedness being refinanced, and




     (2) such refinancing does not contain any restriction on payments to
the Cayman Borrower more restrictive than any such payment restriction
contained in the Indebtedness being refinanced, replaced or refunded or in
the reasonable opinion of the Administrative Agent, such payment
restrictions are consistent with customary market terms for a financing of
its nature and do not adversely affect the ability of either Borrower to
satisfy the Obligations;




provided, that the restrictions set forth in clause (1) shall not apply to
the initial refinancing after the Closing Date of any financing existing as of the Closing
Date with respect to any Subsidiary of the Cayman Borrower listed under the heading “Cuiaba
Structure” in Item 6.8 of the Disclosure Schedule, Puerto Quetzal Power LLC or
Trakya so long as the financial terms of any such refinancings are consistent with the
Closing Date Projections.




     (d) Indebtedness of Subsidiaries of the Cayman Borrower (i) that is unsecured and is
incurred in the ordinary course of business of the Cayman Borrower and its Subsidiaries
(including open accounts extended by suppliers on normal trade terms in connection with
purchases of goods and services which are not overdue for a period of more than 180 days or,
if overdue for more than 180 days, as to which a dispute exists
and adequate reserves in conformity with Local GAAP have been established on the books
of the applicable Subsidiary), excluding Indebtedness for borrowed money, (ii) in



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respect of
performance, surety or appeal bonds provided in the ordinary course of business, but
excluding (in each case), Indebtedness incurred through the borrowing of money or Contingent
Liabilities in respect thereof, and (iii) constituting reimbursement obligations in respect
of trade or performance letters of credit entered into in the ordinary course of business;




     (e) Indebtedness (i) evidencing the deferred purchase price of property or services
used in the ordinary course of business of such Subsidiary (provided that such
Indebtedness is incurred within 60 days of the acquisition of such property), and
refinancings of such Indebtedness, and (ii) in respect of Capitalized Lease Liabilities;
provided, that the holders of such Indebtedness do not have recourse to any property
or assets other than the property to be acquired or that is the subject of such Capitalized
Lease Liabilities; provided, further, that the aggregate amount of all such
Indebtedness in respect of the Cayman Borrower (and its Subsidiaries existing on the
Effective Date) shall not exceed $50,000,000 outstanding at any time;




     (f) Indebtedness of any Subsidiary of the Cayman Borrower that was acquired by the
Cayman Borrower after the Closing Date pursuant to Section 7.2.10(b) or that was
formed after the Closing Date for the single purpose of making an acquisition permitted by
Section 7.2.10(b) (a “Qualified New Subsidiary”) and any refinancing of such
Indebtedness, so long as (x) the holders of such Indebtedness do not have recourse to any
Person other than such Subsidiary (and any other Subsidiary acquired after the Closing Date
pursuant to Section 7.2.10(b) and any other Person to the extent of the Capital
Securities held by such Person in such Subsidiary) and (y) the Capital Securities of the
direct or indirect owner of such Subsidiary that are held by the Cayman Borrower are pledged
to the Collateral Agent;




     (g) Hedging Obligations (i) required or permitted to be entered into pursuant to
Section 7.1.9, and (ii) in respect of fuel hedges entered into in the ordinary
course of business and not for speculative purposes; provided, that any secured
Hedging Obligations of the Borrowers shall only be entered into with the Lenders and their
Affiliates;




     (h) secured Indebtedness and any refinancing thereof of the Cayman Borrower if the
Cayman Borrower shall have furnished notice to the Administrative Agent of the Indebtedness
on or before the date information concerning the Indebtedness is publicly announced and
certification that immediately after giving effect to such Indebtedness (1) the Consolidated
Leverage Ratio will be less than 3.5, (2) the Stand-alone Interest Coverage Ratio will be
greater than 1.5 and (3) the Collateral Coverage Ratio will be greater than 1.75, all
calculated to give pro forma effect to such Indebtedness; provided,
that the aggregate principal amount of such secured Indebtedness shall not exceed
$500,000,000 at any time outstanding unless and to the extent that each
of Moody’s and S&P has affirmed a rating of the Loans of not less than the rating of
the Loans as of the Closing Date after giving effect to the incurrence of such secured
Indebtedness;



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     (i) Indebtedness of Subsidiaries of the Cayman Borrower (other than the U.S. Borrower)
used to finance Capital Expenditures or working capital of such Subsidiaries in the ordinary
course of business in an aggregate amount not to exceed $100,000,000 in any calendar year
(plus amounts not incurred under this Section 7.2.2(i) during any prior calendar
year) provided, that no such limitation shall apply with respect to Indebtedness for
Capital Expenditures required by law or any Governmental Authority;




     (j) Indebtedness of any Subsidiary of the Cayman Borrower, that is held by the Cayman
Borrower or any Subsidiary of the Cayman Borrower; provided, that if any such
Indebtedness is secured, such Indebtedness shall be pledged to the Collateral Agent;




     (k) Indebtedness of the Cayman Borrower that is held by any Subsidiary of the Cayman
Borrower; provided such Subsidiary is not the obligor or guarantor under any
Indebtedness for borrowed money;




     (l) Indebtedness in the form of PECs issued by a Subsidiary of the Cayman Borrower to
the Cayman Borrower or any wholly owned Subsidiary of the Cayman Borrower;




     (m) Indebtedness of the Cayman Borrower or Subsidiaries of the Cayman Borrower that is
fully secured by cash collateral constituting New Equity;




     (n) Indebtedness of the Cayman Borrower and any refinancing thereof which is unsecured
if the Cayman Borrower shall have furnished notice to the Administrative Agent of the
Indebtedness as soon as practicable after the date information concerning the Indebtedness
is publicly announced and certification that immediately after giving effect to such
Indebtedness (1) the Consolidated Leverage Ratio will be less than 3.5, (2) the Stand-alone
Interest Coverage Ratio will be greater than 1.5, (3) the Collateral Coverage Ratio will be
greater than 1.75, and (4) other than with respect to the Permitted Asian Acquisition
Indebtedness, the weighted average life of such Indebtedness exceeds the remaining weighted
average life of the outstanding Term Loans, all calculated to give pro forma
effect to such Indebtedness; and




     (o) Indebtedness of Subsidiaries of the Cayman Borrower (other than the U.S. Borrower)
and any refinancing thereof that is secured (by assets of or ownership interests in such
Subsidiary) or unsecured, in each case, if the Cayman Borrower shall have furnished notice
to the Administrative Agent of the Indebtedness on or before the date information concerning
the Indebtedness is publicly announced and certification that immediately after giving
effect to such Indebtedness the Borrowers will be in compliance with the covenants set forth
in Section 7.2.4, all calculated to give pro forma effect to such
Indebtedness;




provided, however, that no Indebtedness, other than as provided in
clauses (b), (d), (e), (g)(ii), (i), (k) (to
the extent the Cayman Borrower receives cash or cash equivalents in an amount equal to the
face amount of such Indebtedness), and (with respect to Subsidiaries of the Cayman Borrower
acquired after the Effective Date) clause (f), shall be assumed,



86









 






created or
otherwise incurred by either Borrower if a Default or Event of Default has occurred and is
then continuing or would result therefrom.



     SECTION 7.2.3 Liens. Each Borrower will not, and the Cayman Borrower will not permit any of its Subsidiaries to,
create, incur, assume or permit to exist any Lien upon any of its property (including Capital
Securities of any Person), revenues or assets, whether now owned or hereafter acquired, except
(collectively, the “Permitted Liens”):




     (a) Liens securing payment of the Obligations;




     (b) Liens existing as of the Effective Date (which, in the case of Liens securing
Indebtedness permitted pursuant to Section 7.2.2(c)(i) are disclosed in
Item 7.2.3(b) of the Disclosure Schedule) and Liens securing any refinancing of any
of the Indebtedness that is permitted in Section 7.2.2(c)(i) (to the extent that
such refinancing is permitted by Section 7.2.2); provided, that no such Lien
shall encumber any additional property and the amount of Indebtedness secured by such Lien
is not increased from that existing on the Effective Date; provided further,
that no such Lien shall secure Subordinated Debt;




     (c) Liens securing Indebtedness of the type permitted under clause (e) of
Section 7.2.2; provided, that (i) such Lien is granted (or registration
thereof is begun) within 60 days after such Indebtedness is incurred, (ii) the Indebtedness
secured thereby does not exceed 80% of the lesser of the cost or the fair market value of
the applicable property, improvements or equipment at the time of such acquisition (or
construction) and (iii) such Lien encumbers only the assets that are the subject of the
Indebtedness referred to in such clause;




     (d) Liens securing Indebtedness of a Subsidiary of the Cayman Borrower that is
permitted under clause (f) of Section 7.2.2; provided that such
Liens encumber only property and assets of such Subsidiary or any other Subsidiary of the
Cayman Borrower obligated with respect to such Indebtedness to the extent permitted by
Section 7.2.2(f);




     (e) Liens in favor of carriers, warehousemen, mechanics, materialmen and landlords
granted in the ordinary course of business for amounts not overdue or being diligently
contested in good faith by appropriate proceedings and for which adequate reserves in
accordance with Local GAAP shall have been set aside on its books;




     (f) Liens incurred or deposits made in the ordinary course of business (i) in
connection with worker’s compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders, statutory
obligations, bids, leases or other similar obligations (other than for borrowed money)
entered into in the ordinary course of business or to secure obligations on surety and
appeal bonds, performance or indemnity bonds or bonds to secure payment of excise taxes or
custom duties and (ii) securing obligations under fuel supply and power purchase agreements
and any Hedging Agreements related thereto to the extent such Hedging Obligations are
permitted pursuant to Section 7.2.2(g);



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     (g) judgment Liens and (to the extent required by the applicable court) pre-judgment
Liens in existence for less than 60 days after the entry thereof or with respect to which
execution has been stayed or the payment of which is covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance companies and which do not
otherwise result in an Event of Default under Section 8.1.6;




     (h) easements, rights-of-way, zoning restrictions, minor defects or irregularities in
title and other similar encumbrances and restrictions not interfering in any material
respect with the value or use of the property to which such Lien is attached;




     (i) Liens for Taxes not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books;




     (j) Liens on assets of the Cayman Borrower or any of its Subsidiaries arising by virtue
of statutory or common law relating to a banker’s lien or rights of set-off;




     (k) Liens arising by virtue of rights of first refusal, options or other contractual
rights or obligations to sell in connection with a Disposition permitted hereunder;




     (l) Liens of landlords or of mortgagees of landlords, arising solely by operation of
law, on fixtures located on premises leased in the ordinary course of business;
provided that the obligations secured thereby are not in default;




     (m) Liens securing refinancing Indebtedness incurred pursuant to
Section 7.2.2(a) to the extent the Loans are also secured by such Liens on a
pari passu basis;




     (n) Liens on goods imported by any Subsidiary of the Cayman Borrower in favor of
customs and revenue authorities arising in the ordinary course of business;




     (o) (i) Liens securing reimbursement obligations permitted to be incurred pursuant to
Section 7.2.2(d)(iii), (ii) Liens securing Indebtedness contemplated by Section
7.2.2(m), and (iii) Liens securing Indebtedness as contemplated by
Section 7.2.2(o) and meeting the requirements of such Section 7.2.2(o);




     (p) Liens securing Indebtedness permitted pursuant to Section 7.2.2(i) on
property or assets of the Person that incurred such Indebtedness and the Capital Securities
of such Person held by others;




     (q) Liens securing Indebtedness permitted pursuant to Section 7.2.2(h)
to the extent the Loans are also secured by such Liens on a pari passu
basis; and




     (r) Liens securing Indebtedness of Subsidiaries of the Cayman Borrower permitted
pursuant to Section 7.2.2(j) and held by the Cayman Borrower or other Subsidiaries
of the Cayman Borrower which are direct or indirect shareholders of such



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Subsidiaries
incurring such Indebtedness on property or assets of the Person that incurred such
Indebtedness and the Capital Securities of such Person held by others.



     SECTION 7.2.4 Financial Covenants. Each Borrower will not permit any of the events set forth below to occur.




     (a) The Stand-alone Interest Coverage Ratio to be less than 1.2.




     (b) The Consolidated Leverage Ratio to be greater than 4.0.



     SECTION 7.2.5 Investments. Each Borrower will not, and the Cayman Borrower will not permit any of its Subsidiaries to,
purchase, make, incur, assume or permit to exist any Investment in any other Person, except:




     (a) Investments existing on the Effective Date and not otherwise permitted under
Section 7.2.5 and identified in Item 7.2.5(a) of the Disclosure Schedule or
that have a book value of $5,000,000 or less individually or $50,000,000 in the aggregate;




     (b) Cash Equivalent Investments;




     (c) Investments received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;




     (d) Investments permitted as Capital Expenditures pursuant to Section 7.2.7;




     (e) Investments by way of contributions to capital or purchases of Capital Securities
by any Subsidiary in the Cayman Borrower so long as such contribution or purchase shall have
been made for the purpose of making a payment to the Cayman Borrower (and the Cayman
Borrower shall have demonstrated the same to the satisfaction of the Required Lenders), and
the Cayman Borrower shall have received such payment;




     (f) Investments constituting (i) accounts receivable arising, (ii) trade debt granted,
or (iii) deposits made in connection with the purchase price of goods or services, in each
case in the ordinary course of business;




     (g) Investments constituting Permitted Acquisitions; provided, that if such
Permitted Acquisition consists of Capital Securities of an entity acquired by either
Borrower, such Borrower shall pledge such Capital Securities to the Collateral Agent to the
extent required under Section 7.1.8;




     (h) Investments consisting of any deferred portion of the sales price received by the
Cayman Borrower or any of its Subsidiaries in connection with any Disposition permitted
under Section 7.2.11;



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     (i) Investments in respect of (i) Hedging Obligations permitted or required to be
entered into pursuant to this Agreement and (ii) fuel hedges entered into in the ordinary
course of business and not for speculative purposes;




     (j) Investments consisting of deposits with utilities and lessors in the ordinary
course of business, pledges and deposits made in compliance with workers’ compensation
insurance and deposits permitted by Section 7.2.3(f);




     (k) Investments consisting of deposits permitted by Section 7.2.2(m),
Section 7.2.3(f) or Section 7.2.3(o);




     (l) Investments received in exchange for any Investment that is acquired pursuant to
Section 7.2.5(q), so long as the Investment so received has a value equivalent (or
better) to that for which it was exchanged;




     (m) Investments consisting of Indebtedness permitted by Section 7.2.2(j) or
Section 7.2.2(k);




     (n) Investments consisting of loans and advances made by a Subsidiary of the Cayman
Borrower to its employees, so long as the aggregate amount of such loans and advances at any
one time outstanding shall not exceed $10,000,000;




     (o) Investments by any shareholder of a Subsidiary organized under the laws of
Luxembourg in PECs issued by such Subsidiary;




     (p) Investments made by the Cayman Borrower or any of its Subsidiaries (other than the
U.S. Borrower) consisting of the creation of one or more new Subsidiaries or the
capitalization of such Subsidiaries (provided that any amounts used to capitalize,
and any other Investments made in, such Subsidiaries shall be permitted only to the extent
the use of the proceeds of such capitalization is permitted by the other provisions of this
Section 7.2.5 or is for (i) the payment of ordinary course of business expenses of
such Subsidiary, (ii) the payment of Capital Expenditures with respect to such Subsidiary


(to the extent such Capital Expenditures are otherwise permitted hereunder) or (iii)
the repayment of Indebtedness of such Subsidiary (to the extent such Indebtedness, and the
repayment thereof, are otherwise permitted hereunder);




     (q) Investments made at any time which do not exceed New Equity at such time if the
Cayman Borrower shall have furnished notice to the Administrative Agent of the Investment as
soon as practicable after the date information concerning the Investment is publicly
announced and certification that after giving effect to such Investment the Borrowers will
be in compliance with the covenants set forth in Section 7.2.4, calculated to give
pro forma effect to such Investment; provided that if such
Investment consists of the Capital Securities of an entity acquired by the Cayman Borrower,
the Cayman Borrower shall pledge such Capital Securities to the Collateral Agent to the
extent required under Section 7.1.8;



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     (r) Investments consisting of advances made by the Cayman Borrower or its Subsidiaries
to Persons in which they hold a direct or indirect ownership interest in order to pay
expenses incurred in the ordinary course of business; and




     (s) Investments resulting from or contemplated by the transactions described in
Item 7.2.5(s) of the Disclosure Schedule;



provided, however, that any Investment which when made complies with the
requirements of the definition of the term “Cash Equivalent Investment” may continue to be held
notwithstanding that such Investment if made thereafter would not comply with such requirements;
provided further, however, that no Investments other than those permitted
by clauses (b), (c), (d), (e), (f), (i),
(j), (k) in respect of Sections 7.2.2(l) and 7.2.3(f) only,
(n) or (o) shall be made, acquired or entered into if a Default or Event of Default
has occurred and is then continuing or would result therefrom.



     SECTION
7.2.6 Restricted Payments, etc. Each Borrower will not, and will not permit any of its Subsidiaries to, declare or make a
Restricted Payment, or make any deposit for any Restricted Payment, unless (a) no Event of Default
under Section 8.1 shall have occurred and be continuing and (b) after giving effect to such
Restricted Payment, the Borrowers will be in compliance with the covenants set forth in Section
7.2.4; provided that notwithstanding the foregoing, Subsidiaries of the Cayman Borrower
may make Restricted Payments to the Cayman Borrower or to wholly owned Subsidiaries of the Cayman
Borrower other than the U.S. Borrower (but in the case of Restricted Payments made by Subsidiaries
that are not wholly owned Subsidiaries, only so long as such Restricted Payments are made ratably
among the equity holders of such non-wholly-owned Subsidiary). In no event shall the proceeds of
any Indebtedness (other than the Revolving Loans) be used to make a Restricted Payment by the
Borrowers and the proceeds of any Revolving Loans used to make any such Restricted Payment shall be
subject to repayment as provided in Section 3.1.1(f).



     SECTION
7.2.7 Capital Expenditures, etc. The Cayman Borrower will not permit its Subsidiaries to make Capital Expenditures that are
inconsistent with prudent utility practice. The Cayman Borrower will not make Capital Expenditures
for itself in excess of $5,000,000.



     SECTION 7.2.8 No Prepayment of Other Debt. Each Borrower will not, and the Cayman Borrower will not permit any of its Subsidiaries to,




     (a) make any payment or prepayment of principal of, or premium or interest on, any
Subordinated Debt, redeem, retire, purchase, defease or otherwise acquire any Subordinated
Debt, or make any deposit (including the payment of amounts into a sinking fund or other
similar fund) for any of the foregoing purposes, unless (i) no Event of Default under
Section 8.1.1 shall have occurred and be continuing and (ii) after giving effect to
such payment or prepayment, the Borrowers will be in compliance with the covenants set forth
in Section 7.2.4; or




     (b) make any payment or prepayment of principal of, or premium or interest on, any
other Indebtedness, redeem, retire, purchase, defease or otherwise acquire any other
Indebtedness, or make any deposit (including the payment of amounts into a



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sinking fund or
other similar fund) for any of the foregoing purposes, except (i) payments in respect of the
Loans, (ii) regularly scheduled payments, and mandatory payments, of principal of and
interest on other Indebtedness permitted to be outstanding pursuant to Section
7.2.2, (iii) prepayments of the Cuiaba/Shell Intercompany Debt that is repaid on a
pari passu basis with the Cuiaba Intercompany Debt, (iv) prepayments funded
by New Equity, (v) the redemption by any Subsidiary organized under the laws of Luxembourg
of its preferred equity certificates (so long as such redemption is done ratably among its
shareholders), (vi) prepayments of principal in connection with a refinancing of (r)
Indebtedness (other than the Loans) incurred pursuant to Section 7.2.2(a), so long
as such refinancing is permitted by Section 7.2.2(a), (s) any Indebtedness incurred
pursuant to Section 7.2.2(c), so long as such refinancing is permitted by
Section 7.2.2(c), (t) any Indebtedness incurred pursuant to Section
7.2.2(e), so long as such refinancing is permitted by Section 7.2.2(e), (u) any
Indebtedness incurred pursuant to Section 7.2.2(f) so long as such refinancing is
permitted by Section 7.2.2(f), (v) any Indebtedness incurred pursuant to Section
7.2.2(h), so long as such refinancing is permitted by Section 7.2.2(h), (w) any
Indebtedness incurred pursuant to Section 7.2.2(i), so long as such refinancing is
permitted by Section 7.2.2(i), (x) any Indebtedness incurred pursuant to Section
7.2.2(m), so long as such refinancing is permitted by Section 7.2.2(m), (y) any
Indebtedness incurred pursuant to Section 7.2.2(n), so long as such refinancing is
permitted by Section 7.2.2(n), and (z) any Indebtedness incurred pursuant to
Section 7.2.2(o), so long as such refinancing is permitted by Section
7.2.2(o), and (vii) to the extent after giving effect to such payment or prepayment, the
Borrowers will be in compliance with the covenants set forth in Section 7.2.4 and no
Default or Event of Default under Section 8.1.1 shall have occurred and be
continuing.



     SECTION 7.2.9 Issuance of Capital Securities. Each Borrower will not, and the Cayman Borrower will not permit any of its Subsidiaries to issue
any Capital Securities (whether for value or otherwise) to any Person other than (a) in the case of
Subsidiaries (other than the U.S. Borrower), to the Cayman Borrower or another wholly owned
Subsidiary, (b) in the case of the Cayman Borrower as New Equity, (c) in the case of the Cayman
Borrower, the issuance of its Capital Securities in satisfaction of obligations in respect of
long-term incentive plan arrangements or employee stock option arrangements, (d) in the case of the
Cayman Borrower, in exchange for the acquisition or redemption of Subordinated Debt pursuant to
Section 7.2.8(a), (e) in the case of the Cayman Borrower, the issuance of its common
Capital Securities in connection with a Permitted Acquisition or to fund Capital Expenditures and
other needs of the Cayman Borrower and its Subsidiaries and (f) the payment by Subsidiaries
not-wholly owned by the Cayman Borrower of dividends (ratably to their respective shareholders) in
Capital Securities.



     SECTION
7.2.10 Consolidation, Merger, Permitted Acquisitions, etc. Each Borrower will not, and the Cayman Borrower will not permit any of its Subsidiaries to,
liquidate or dissolve, consolidate with, or merge into or with, any other Person, or purchase or
otherwise acquire all or substantially all of the assets of any Person (or any division thereof),
except




     (a) any Subsidiary (other than the U.S. Borrower) may liquidate or dissolve voluntarily
into, and may merge with and into, any other Subsidiary of the Cayman



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Borrower, and the
assets or Capital Securities of any Subsidiary may be purchased or otherwise acquired by any
other Subsidiary of the Cayman Borrower; provided, further, that in no event
shall (i) any Subsidiary consolidate with or merge with and into any other Subsidiary unless
after giving effect thereto the Cayman Borrower shall have demonstrated to the satisfaction
of the Required Lenders that the ability of the Cayman Borrower to receive dividend payments
from its Subsidiaries is not adversely affected and the Cayman Borrower’s ability to control
the management and operations of its Subsidiaries is not adversely affected and (ii) any
Subsidiary that has Indebtedness outstanding that was incurred pursuant to Section
7.2.2(f) merge with and into any Subsidiary existing on the date of this Agreement;




     (b) any acquisition consisting of an Investment permitted under Section 7.2.5;
and




     (c) and the dissolution of any other Subsidiary of the Cayman Borrower (other than the
U.S. Borrower) not required for the operation of the business of the Cayman Borrower or its
Subsidiaries.



     SECTION 7.2.11 Permitted Dispositions. Each Borrower will not, and the Cayman Borrower will not permit any of its Subsidiaries to,
Dispose of any of their respective assets (including accounts receivable and Capital Securities of
Subsidiaries) to any Person in one transaction or series of transactions unless such Disposition:




     (a) is a Disposition made in the ordinary course of its business or of obsolete,
damaged, worn out, surplus or outdated property,




     (b) is a Disposition of an Excluded Subsidiary for a consideration consisting solely of
cash,




     (c) is permitted by Section 7.2.10,




     (d) is from a Subsidiary of the Cayman Borrower to the Cayman Borrower or a wholly
owned Subsidiary of the Cayman Borrower,




     (e) is of Cash Equivalent Investments in the ordinary course of business,




     (f) consists of leases or subleases of real property or capital assets (which are not
essential to the operation of the business of the lessor or sublessor) in the ordinary
course of business,




     (g) consists of the issuance of employee benefit and stock incentive plans entered into
in the ordinary course of business,




     (h) consists of accounts receivable pursuant to any monetization or other financing of
accounts receivable in the ordinary course of business and not for the purpose of borrowing
money and after giving effect to such Disposition the Borrowers




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will be in compliance with the covenants set forth in Section 7.2.4 calculated to give pro forma effect to such
monetization or financing,




     (i) is required to be made pursuant to the existing contractual arrangements described
on Item 7.2.11 of the Disclosure Schedule,




     (j) any other Disposition if the Borrowers shall have furnished notice to the
Administrative Agent of the Disposition as soon as practicable after the date information
concerning the Disposition is publicly announced and certification that after giving effect
to such Disposition the Borrowers will be in compliance with the covenants set forth in
Section 7.2.4, calculated to give pro forma effect to such
Disposition; and




     (k) results from or is contemplated by the transactions described in Item
7.2.5(s) of the Disclosure Schedules;




provided, that the Borrowers shall not and the Cayman Borrower shall not permit its
Subsidiaries to Dispose in any calendar year of assets that provided, in the aggregate,
greater than 25% of the consolidated cash flow the Borrowers (calculated in accordance with
GAAP) for the preceding calendar year without the consent of the Required Lenders.



     SECTION 7.2.12 Modification of Certain Agreements. Each Borrower will not, and the Cayman
Borrower will not permit any of its Subsidiaries to, consent to any amendment, supplement, waiver
or other modification of, or enter into any forbearance from exercising any rights with respect to
the terms or provisions contained in (collectively, “Modifications”),




     (a) the Organic Documents of the Cayman Borrowers or any of its Subsidiaries if the
result thereof would have a material adverse effect on the Lenders (it being agreed that any
Modification of any such Organic Document would not have an adverse effect on the Lenders if
such Modification is made to effectuate a transaction otherwise permitted by the terms of
any Loan Document); and




     (b) any agreement or instrument governing or evidencing any Indebtedness of the Cayman
Borrower or any of its Subsidiaries, except (i) to the extent such Modification effects a
refinancing of such Indebtedness permitted by Section 7.2.2, or (ii) to the extent
that the result thereof would not have a material adverse effect on the Lenders.



     SECTION 7.2.13 Transactions with Affiliates. Each Borrower will not, and the Cayman
Borrower will not permit any of its Subsidiaries to, enter into or cause or permit to exist any
arrangement, transaction or contract (including for the purchase, lease or exchange of property or
the rendering of services) with any of its other Affiliates (except for the issuance of any
Subordinated Debt), unless such arrangement, transaction or contract is on terms no less favorable
to the applicable Borrower or such Subsidiary than it could obtain in an arm’s-length transaction
with a Person that is not an Affiliate. The agreements described on Item 7.2.13 of the
Disclosure Schedule are deemed to have satisfied the requirements of this Section 7.2.13.



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     SECTION 7.2.14 Restrictive Agreements, etc. Each Borrower will not, and the Cayman
Borrower will not permit any of its Subsidiaries to, enter into any agreement prohibiting




     (a) the creation or assumption of any Lien upon its properties, revenues or assets,
whether now owned or hereafter acquired;




     (b) the ability of the Borrowers to amend or otherwise modify any Loan Document; or




     (c) the ability of any Subsidiary to make any payments, directly or indirectly, to the
Borrowers, including by way of dividends, advances, repayments of loans, reimbursements of
management and other intercompany charges, expenses and accruals or other returns on
investments.


The foregoing prohibitions shall not apply to any of the following:





     (i) restrictions contained in any Loan Document,




     (ii) restrictions in the terms and conditions of any refinancing Indebtedness
that is incurred in compliance with Section 7.2.2(a),




     (iii) in the case of clauses (a) and (c), restrictions in any
agreement governing any Indebtedness permitted by Section 7.2.2(c),
Section 7.2.2(e), Section 7.2.2(f), Section 7.2.2(h) and
Section 7.2.2(i) (but in the case of Section 7.2.2(i), clause
(c) shall apply only insofar as the restriction provides that dividends or other
restricted payments cannot be made by the borrower of such Indebtedness during the
continuance of a default with respect to such Indebtedness) and in the case of
Sections 7.2.2(e) and (f), clause (a) shall apply only as to
the assets financed with the proceeds of such Indebtedness),




     (iv) in the case of clause (a), (x) restrictions in any agreement
governing any Indebtedness permitted by Section 7.2.2(n) and Section
7.2.2(o), in each case, only to the extent restrictions in any agreement
governing such Indebtedness do not prohibit or restrict the Liens under the Security
Agreements, (y) restrictions in respect of property encumbered by Liens permitted by
Section 7.2.3 so long as such restriction applies only to the asset
encumbered by such permitted Lien and (z) customary provisions in leases and service
contracts entered into in the ordinary course of business between the Cayman
Borrower or any Subsidiary and its customers and other contracts restricting the
assignment thereof,




     (v) in the case of clause (c), restrictions in any agreement governing
any Indebtedness permitted by Section 7.2.2(o), only to the extent such
restrictions prohibit the payment of dividends during the continuance of an event of
default with respect to such Indebtedness or are, in the Administrative Agent’s
reasonable discretion, otherwise customary in the applicable market for debt
transactions of that nature,



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     (vi) conditions imposed by law, regulation, court order, rule or decree,




     (vii) restrictions in any agreement in effect at the time any Person becomes a
Subsidiary of the Cayman Borrower (provided that such agreement was not
entered into in contemplation of such Person becoming a Subsidiary),




     (viii) customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary (or the assets of a Subsidiary) pending such sale
(provided that such restrictions and conditions apply only to the Subsidiary
that is to be sold (or whose assets are to be sold) and such sale is permitted under
this Agreement,




     (ix) restrictions contained on the Closing Date in any Organic Document of the
Cayman Borrowers or any of its Subsidiaries,




     (x) restrictions described in Item 7.2.14 of the Disclosure Schedule,
or




     (xi) in the case of clause (a), customary restrictions and conditions
contained in agreements relating to any Permitted Acquisition; provided that
such restrictions and conditions apply only to such properties, businesses, assets
or revenues that are to be purchased in connection with such Permitted Acquisition.



     SECTION 7.2.15 Sale and Leaseback. The Borrowers will not, and will not permit any of its
Subsidiaries to, directly or indirectly enter into any agreement or arrangement, except for those
set forth in Item 7.2.15 of the Disclosure Schedule, providing for the sale or transfer by
it of any property (now owned or hereafter acquired) to a Person and the subsequent lease or rental
of such property or other similar property from such Person.



     SECTION 7.2.16 U.S. Borrower. The Cayman Borrower will not, and will not permit any of its
Subsidiaries, to purchase, make, incur, assume or permit to exist any Investment in the U.S.
Borrower or otherwise sell, transfer, assign or distribute, directly or indirectly, any assets or
property to the U.S. Borrower. The U.S. Borrower will not own any assets and will not have any
Subsidiaries. Notwithstanding anything herein to the contrary in this Agreement, the U.S. Borrower
will not receive Loans proceeds.



ARTICLE VIII

EVENTS OF DEFAULT




     SECTION 8.1 Listing of Events of Default. Each of the following events or occurrences
described in this Article VIII shall constitute an “Event of Default.”



     SECTION 8.1.1 Non-Payment of Obligations. Either Borrower shall default, and such default shall continue unremedied for a period of three
days after such amount was due, in the payment or prepayment when due of the following:




     (a) any principal of any Loan (including any regularly scheduled payment of principal
and any prepayment pursuant to Section 3.1.1); or



96









 






     (b) interest on any Loan or any fee described in Article III or any other
monetary Obligation (other than as provided for in clause (a) above).



     SECTION 8.1.2 Breach of Warranty. Any representation or warranty of either Borrower made
or deemed to be made in any Loan Document (including any certificates delivered pursuant to
Article V) is or shall be incorrect when made or deemed to have been made in any material
respect.



     SECTION 8.1.3 Non-Performance of Certain Covenants and Obligations. Subject to the
provisions of Section 1.5, either Borrower or any Material Guarantor shall default in the
due performance or observance of any of its obligations under (i) Section 7.1.1 or
Section 7.1.7, and such default shall continue for a period of 30 days or (ii) Section
7.2 and such default shall continue for a period of five Business Days.



     SECTION 8.1.4 Non-Performance of Other Covenants and Obligations. Subject to the
provisions of Section 1.5, either Borrower shall default in the due performance and
observance of any other agreement contained in any Loan Document executed by it, and such default
shall continue unremedied for a period of 30 days after the earlier to occur of (i) notice thereof
given to either Borrower by the Administrative Agent or any Lender or (ii) the date on which either
Borrower has knowledge of such default; provided, however, that if during such 30
day period, the Borrowers are proceeding with diligence and in good faith to cure such default, the
cure period shall be extended by an additional 30-day period.



     SECTION 8.1.5 Default on Other Indebtedness. A default (other than a default described in
Item 8.1.5 of the Disclosure Schedule) shall occur (and shall not have been cured or
waived) in the payment of any amount when due, whether by acceleration or otherwise, of any
principal or stated amount of, or interest or fees on, any Indebtedness (other than Indebtedness
described in Section 8.1.1) of the Cayman Borrower or any of its Subsidiary if either (i)
the principal or stated amount thereof is $100,000,000 or more (or the equivalent in other
currencies) or (ii) the aggregate principal or stated amount of all such defaulted Indebtedness is
$250,000,000 or more (or the equivalent in other currencies), or a default (other than a default
existing on the Closing Date and described in Item 8.1.5 of the Disclosure Schedule) shall
occur (and shall not have been cured or waived) in the performance or observance of any obligation
or condition with respect to such Indebtedness if the effect of such default is to accelerate the
maturity of any such Indebtedness or, in the case of Indebtedness of the Cayman Borrower only, to permit (with notice or lapse of time or both) the holder or holders
of such Indebtedness, or any trustee or agent for such holders, to cause or declare such
Indebtedness to become due and payable or require such Indebtedness to be prepaid, redeemed,
purchased or defeased or require an offer to purchase or defease such Indebtedness prior to its
expressed maturity.



     SECTION 8.1.6 Judgments. Any judgment or order for the payment of money of $10,000,000 or
more (or the equivalent in other currencies), or judgments or orders for the payment of money
aggregating $30,000,000 or more (or the equivalent in other currencies), exclusive of any amounts
fully covered by insurance (less any applicable deductible) and as to which the insurer has
acknowledged its responsibility to cover such judgment or order, shall be rendered against the
Cayman Borrower or any of its Subsidiaries and such judgment or



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judgments shall not have been vacated or discharged or stayed or bonded pending appeal within 60 days after the entry thereof or
enforcement proceedings shall have been commenced by any creditor upon any such judgment or order.



SECTION 8.1.7 Pension Plans. Any of the following events shall occur





     (a) with respect to any Pension Plan, the institution of any steps by either Borrower,
any member of its Controlled Group or any other Person to terminate a Pension Plan which if,
as a result of such termination, either Borrower or any such member could be required to
make a contribution to such Pension Plan, or could reasonably expect to incur a liability or
obligation to such Pension Plan, in excess of $5,000,000; or




     (b) with respect to any Pension Plan, a contribution failure occurs with respect to any
Pension Plan sufficient to give rise to a Lien under section 302(f) of ERISA, or




     (c) with respect to any arrangement that would be a Pension Plan but for the fact that
it is maintained outside of the United States primarily for the benefit of individuals
substantially all of whom are nonresident aliens, (i) the institution of any steps by either
Borrower, any member of its Controlled Group, or any other Person to terminate such
arrangement which if, as a result of such termination, such Borrower or any such member
could be required to make a contribution to such arrangement, or could reasonably expect to
incur a liability or obligation to or in respect of such arrangement, in excess of
$5,000,000, or (ii) a contribution failure occurs with respect to such arrangement
sufficient to give rise to a Lien under applicable law securing obligations in excess of
$5,000,000.



     SECTION 8.1.8 Change in Control. Any Change in Control shall occur.



     SECTION 8.1.9 Bankruptcy, Insolvency, etc. Either Borrower or any Guarantor shall:




     (a) become insolvent or generally fail to pay, or admit in writing its inability or
unwillingness generally to pay, debts as they become due;




     (b) apply for, consent to, or acquiesce in the appointment of a trustee, liquidator,
receiver, sequestrator or other custodian for any substantial part of the property of any
thereof, or make a general assignment for the benefit of creditors;




     (c) in the absence of such application, consent or acquiescence in or permit or suffer
to exist the appointment of a trustee, liquidator, receiver, sequestrator or other custodian
for a substantial part of the property of any thereof, and such trustee, liquidator,
receiver, sequestrator or other custodian shall not be discharged within 60 days;




     (d) permit or suffer to exist the commencement of any bankruptcy, reorganization,
composition, debt arrangement or other case or proceeding under any bankruptcy or insolvency
law or any dissolution, winding up or liquidation proceeding, in respect thereof, and, if
any such case or proceeding is not commenced by such Borrower



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or any Guarantor, such case or proceeding shall be consented to or acquiesced in by such Borrower
or any Guarantor, as the case may be, or shall result in the entry of an order for relief or shall remain for 60 days
undismissed; or




     (e) take any action authorizing, or in furtherance of, any of the foregoing.



     Notwithstanding the foregoing, in no event shall any of the proceedings referred to in this
Section 8.1.9 affecting only an Immaterial Guarantor constitute an Event of Default, unless
and to the extent that such proceedings affect Immaterial Guarantors representing, directly or
through direct or indirect ownership interest in any other Person, 15% or more, in the aggregate,
of the Consolidated EBITDA of the Cayman Borrowers and its Subsidiaries for the most recently ended
Fiscal Year.



     SECTION 8.1.10 Impairment of Security, etc. Any Security Agreement or any Lien granted
thereunder shall (except in accordance with its terms or except with respect to Liens on property
disposed of in accordance with Sections 7.2.10 and 7.2.11), in whole or in part,
terminate, cease to be effective or cease to be the legally valid, binding and enforceable
obligation of each Borrower or any other entity granting such Lien; each Borrower or any Guarantor
shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature
or enforceability; or, except as permitted under any Loan Document, any Lien securing any
Obligation shall, in whole or in part, cease to be a perfected Lien (subject to no equal or prior
Liens other than Permitted Liens).



     SECTION 8.1.11 Failure of Subordination. The subordination provisions relating to any Subordinated Debt (the “Subordination
Provisions”) shall cease to be in full force and effect; or the Cayman Borrower or any of its
Subsidiaries shall, directly or indirectly, disavow or contest in any manner the effectiveness,
validity or enforceability of any of the Subordination Provisions or that all payments of principal
of or premium and interest on the Subordinated Debt, or realized from the liquidation of any
property of such Borrower, shall be subject to any of such Subordination Provisions.



     SECTION 8.2 Action if Bankruptcy. If any Event of Default described in clauses (a)
through (e) of Section 8.1.9 with respect to either Borrower shall occur, the
Commitments (if not theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations shall automatically be and
become immediately due and payable, without notice or demand to any Person.



     SECTION 8.3 Action if Other Event of Default. If any Event of Default (other than any
Event of Default described in clauses (a) through (e) of Section 8.1.9 with
respect to either Borrower) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required Lenders, shall by notice
to the Borrowers declare all or any portion of the outstanding principal amount of the Loans and
other Obligations to be due and payable and/or the Commitments (if not theretofore terminated) to
be terminated, whereupon the full unpaid amount of such Loans and other Obligations which shall be
so declared due and payable shall be and become immediately due and payable, without further
notice, demand or presentment, and/or, as the case may be, the Commitments shall terminate.



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     SECTION 8.4 Effect of Cure. If (i) the circumstance giving rise to an Event of Default has
been cured or remedied (without regard to whether it has been cured within any applicable cure
period), (ii) the Administrative Agent and the Lenders have not, prior to such cure or remedy,
accelerated the Loans, and (iii) the circumstance giving rise to an Event of Default has not had,
and could not reasonably be expected to have, a material adverse effect on the Borrowers or the
Borrowers’ ability to repay the Loans, then such Event of Default shall be deemed cured and waived
for all purposes, but without prejudice to (or waiver of) the Borrowers’ continuing and future
obligations under the Loan Documents, whether of the same or different nature as the underlying
Event of Default that has been cured.



ARTICLE IX

THE AGENTS




     SECTION 9.1 Actions. Each Lender hereby appoints Credit Suisse, Cayman Islands Branch, as its Administrative Agent
under and for purposes of each Loan Document. Each Lender hereby appoints JPMorgan Chase Bank,
N.A., as its Collateral Agent under and for the purposes of each Loan Document. Each Lender hereby
appoints Credit Suisse, Cayman Islands Branch, and each other Lender designated pursuant to
Section 2.5.6(b), as an Issuing Bank under and for purposes of each Loan Document. Each
Lender authorizes each of the Administrative Agent, the Collateral Agent and each Issuing Bank to
act on behalf of such Lender under each Loan Document, as applicable, and, in the absence of other
written instructions from the Required Lenders received from time to time by such Agent or Issuing
Bank (with respect to which such Agent or Issuing Bank agrees that it will comply, except as
otherwise provided in this Section 9.1 or as otherwise advised by counsel in order to avoid
contravention of applicable law), to exercise such powers hereunder and thereunder as are
specifically delegated to or required of such Agent or Issuing Bank by the terms hereof and
thereof, together with such powers as may be incidental thereto. Each Lender hereby indemnifies
(which indemnity shall survive any termination of this Agreement) each Agent and Issuing Bank,
pro rata according to such Lender’s proportionate amount of the outstanding Loans,
from and against any and all liabilities, obligations, losses, damages, claims, costs or expenses
of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted
against, any such Agent or Issuing Bank in any way relating to or arising out of any Loan Document,
(including attorneys’ fees), and as to which each such Agent or Issuing Bank is not reimbursed by
the Borrowers; provided that no Lender shall be liable for the payment of any portion of
such liabilities, obligations, losses, damages, claims, costs or expenses which are determined by a
court of competent jurisdiction in a final proceeding to have resulted from an Agent’s or Issuing
Bank’s gross negligence or willful misconduct. None of the Agents or Issuing Bank shall be
required to take any action under any Loan Document, or to prosecute or defend any suit in respect
of any Loan Document, unless it is indemnified hereunder to its satisfaction. If any indemnity in
favor of an Agent or Issuing Bank shall be or become, in the Agent’s or Issuing Bank’s
determination, inadequate, such Agent or Issuing Bank may call for additional indemnification from
the Lenders and cease to do the acts indemnified against hereunder until such additional indemnity
is given. The Documentation Agent, without the consent of or notice to any party hereto, may
assign any and all of its rights or obligations hereunder to any of its Affiliates. As of the
Closing Date, the Documentation Agent shall have no obligations but shall be entitled to all the
benefits of Section 9.



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     SECTION 9.2 Funding Reliance, etc.



     SECTION 9.2.1 Lenders. Unless the Administrative Agent shall have been notified in writing
by any Lender by 3:00 p.m. on the Business Day prior to the borrowing of Loans that such Lender
will not make available the amount which would constitute its Percentage of the borrowing of Loans
on the date specified therefor, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent and, in reliance upon such assumption, make
available to the Borrowers a corresponding amount. If and to the extent that such Lender shall not
have made such amount available to the Administrative Agent, such Lender and the Borrowers
severally agree to repay the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date the Administrative Agent made such
amount available to the Borrowers to the date such amount is repaid to the Administrative Agent, at
the interest rate applicable at the time to Loans comprising the borrowing (in the case of the
Borrowers) and (in the case of a Lender), at the Federal Funds Rate (for the first two Business
Days after which such amount has not been repaid), and thereafter at the interest rate applicable
to Loans comprising the borrowing.



     SECTION 9.2.2 Borrowers. Unless the Administrative Agent shall have been notified in
writing by the applicable Borrower by 3:00 p.m. on the Business Day prior to the payment of any
amounts due under any Loan Document that such Borrower will not make available such amount on the
date specified therefor, the Administrative Agent may assume that such Borrower has made such
amount available to the Administrative Agent and, in reliance upon such assumption, make available
to each Lender its pro rata share of a corresponding amount of such payment. If
and to the extent that such Borrower shall not have made such amount available to the
Administrative Agent, the applicable Lender and the Borrowers severally agree to repay the
Administrative Agent forthwith on demand such corresponding amount together with interest thereon,
for each day from the date the Administrative Agent made such amount available to such Lender to
the date such amount is repaid to the Administrative Agent, at the interest rate applicable at the
time to Loans comprising the borrowing (in the case of the Borrowers) and (in the case of a
Lender), at the Federal Funds Rate (for the first two Business Days after which such amount has not
been repaid), and thereafter at the interest rate applicable to Loans comprising the borrowing.



     SECTION 9.3 Exculpation. None of the Agents or Issuing Banks or any of their respective
directors, officers, employees or agents shall be liable to any Secured Party for any action taken
or omitted to be taken by it under any Loan Document, or in connection therewith, except to the
extent found by a final and non-appealable decision of a court of competent jurisdiction to have
resulted from their own willful misconduct or gross negligence, nor responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability, validity or due execution
of any Loan Document, nor for the creation, perfection or priority of any Liens purported to be
created by any of the Loan Documents, or the validity, genuineness, enforceability, existence,
value or sufficiency of any collateral security, nor to make any inquiry respecting the performance
by the Borrowers of their Obligations. Any such inquiry which may be made by an Agent or Issuing
Bank shall not obligate such Agent or Issuing Bank to make any further inquiry or to take any
action. Each Agent and Issuing Bank shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice,



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consent, certificate, statement or writing which such Agent or
Issuing Bank believes to be genuine and to have been presented by a proper Person. The Agents and
the Issuing Banks shall have no duties or obligations except those expressly set forth herein and
in the other Loan Documents. Without limiting the generality of the foregoing, the Agents and the
Issuing Banks shall not be subject to any fiduciary or other implied duties, regardless of whether
any Default shall have occurred.



     SECTION 9.4 Successor. Each of the Administrative Agent or the Collateral Agent may resign
as such at any time upon at least 30 days’ prior notice to the Borrowers and all Lenders. If the
Administrative Agent or the Collateral Agent at any time shall resign, the Required Lenders may
appoint another Lender as a successor Administrative Agent or Collateral Agent, as applicable,
which shall thereupon become the Administrative Agent or Collateral Agent hereunder. If no
successor Administrative Agent or Collateral Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative
Agent’s or Collateral Agent’s giving notice of resignation, then the retiring Administrative Agent
or Collateral Agent may, on behalf of the Lenders, appoint a successor Administrative Agent or
Collateral, as applicable, which shall be one of the Lenders or a commercial banking institution
organized under the laws of the United States (or any State thereof) or a United States branch or
agency of a commercial banking institution, and having a combined capital and surplus of at least
$250,000,000; provided, however, that if, such retiring Administrative Agent or
Collateral Agent is unable to find a commercial banking institution which is willing to accept such
appointment and which meets the qualifications set forth in above, the retiring Administrative
Agent’s or Collateral Agent’s resignation shall nevertheless thereupon become effective and the
Lenders shall assume and perform all of the duties of the Administrative Agent or Collateral Agent,
as applicable, hereunder until such time, if any, as the Required Lenders appoint a successor as
provided for above. Upon the acceptance of any appointment as Administrative Agent or Collateral
Agent hereunder by a successor Administrative Agent or Collateral Agent, as applicable, such
successor Administrative Agent or Collateral Agent shall be entitled to receive from the retiring
Administrative Agent or Collateral Agent such documents of transfer and assignment as such
successor Administrative Agent or Collateral Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of the retiring
Administrative Agent or Collateral Agent and the retiring Administrative Agent or Collateral Agent
shall be discharged from its duties and obligations under the Loan Documents. After any retiring
Administrative Agent’s or Collateral Agent’s resignation hereunder as the Administrative Agent or
Collateral Agent, the provisions of this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative Agent or the Collateral
Agent under the Loan Documents, and Section 10.4 and Section 10.5, as applicable,
shall continue to inure to its benefit.



     Any resignation by Credit Suisse as Administrative Agent pursuant to this Section 9.4
shall also constitute its resignation as Issuing Bank; provided, however, that if Credit
Suisse is unable to designate an appropriate substitute to serve as an issuing bank as required by


Section 2.5.6(a), then such resignation shall be effective only to cause Credit Suisse to
resign as Administrative Agent and not as Issuing Bank. Upon the acceptance of a successor’s
appointment as Issuing Bank, (a) such successor Issuing Bank shall succeed to and become
vested with all of the rights, powers, privileges and duties of the resigning Issuing Bank, (b) the



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resigning Issuing Bank shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents to the extent provided in Section 2.5.4, and (c) the
successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit
issued by the resigning Issuing Bank, if any, outstanding at the time of such succession or make
other arrangement satisfactory to the resigning Issuing Bank to effectively assume the obligations
of the resigning Issuing Bank with respect to such Letters of Credit.



     SECTION 9.5 Loans by the Administrative Agent. The Administrative Agent, the Collateral
Agent and the Issuing Banks shall have the same rights and powers with respect to (x) the Loans
made by them or any of their respective Affiliates, and (y) the Notes held by them or any of their
respective Affiliates as any other Lender and may exercise the same as if they were not the
Administrative Agent, the Collateral Agent or any Issuing Bank, as applicable. The Administrative
Agent, the Collateral Agent and each Issuing Bank and their respective Affiliates may accept
deposits from, lend money to, and generally engage in any kind of business with the Cayman Borrower
or any of its Subsidiaries or any Affiliate of either Borrower as if the Administrative Agent, the
Collateral Agent or such Issuing Bank, as applicable, were not the Administrative Agent, the
Collateral Agent or Issuing Bank, as applicable, hereunder. None of the Agents or Issuing Bank
shall have any responsibility or obligation to furnish to any Lender any information regarding the
Cayman Borrower, any of its Subsidiaries or any Affiliate of either Borrower, that such Agent or
Issuing Bank obtains other than pursuant to this Agreement and the other Loan Documents.



     SECTION 9.6 Credit Decisions. Each Lender acknowledges that it has, independently of the
Administrative Agent, the Collateral Agent, each Issuing Bank and each other Lender, and based on
such Lender’s review of the financial information of the Borrowers, the Loan Documents (the terms
and provisions of which being satisfactory to such Lender) and such other documents, information
and investigations as such Lender has deemed appropriate, made its own credit decision to extend
its Commitments. Each Lender also acknowledges that it will, independently of the Administrative
Agent, the Collateral Agent, each Issuing Bank and each other Lender, and based on such other
documents, information and investigations as it shall deem appropriate at any time, continue to
make its own credit decisions as to exercising or not exercising from time to time any rights and
privileges available to it under the Loan Documents.



     SECTION 9.7 Copies, etc. Each Agent and Issuing Bank shall give prompt notice to each
Lender of each notice or request required or permitted to be given to each Agent or Issuing Bank by
the Borrowers pursuant to the terms of the Loan Documents (unless concurrently delivered to the
Lenders by the Borrowers). Each Agent and Issuing Bank will distribute to each Lender each
document or instrument received for its account and copies of all other communications received by
each Agent or Issuing Bank from the Borrowers for distribution to the Lenders by each Agent or Issuing Bank in
accordance with the terms of the Loan Documents.



     SECTION 9.8 Reliance by Agents and the Issuing Banks. The Agents and the Issuing Banks
shall be entitled to rely upon any certification, notice or other communication (including any
thereof by telephone, telecopy, telegram or cable) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the



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Agents and the Issuing Banks. As to any matters not expressly provided for by the Loan Documents, the Agents and the
Issuing Banks shall in all cases be fully protected in acting, or in refraining from acting,
thereunder in accordance with instructions given by the Required Lenders or all of the Lenders as
is required in such circumstance, and such instructions of such Lenders and any action taken or
failure to act pursuant thereto shall be binding on all Secured Parties. For purposes of applying
amounts in accordance with this Section, the Agents and the Issuing Banks shall be entitled to rely
upon any Secured Party that has entered into a Hedging Agreement with either Borrower for a
determination (which such Secured Party agrees to provide or cause to be provided upon request of
the Agents or Issuing Banks) of the outstanding Obligations owed to such Secured Party under any
Hedging Agreement. Unless it has actual knowledge evidenced by way of written notice from any such
Secured Party and the Borrowers to the contrary, the Agents and the Issuing Banks, in acting in
such capacities under the Loan Documents, shall be entitled to assume that no Hedging Agreements or
Obligations in respect thereof are in existence or outstanding between any Secured Party and either
Borrower.



     SECTION 9.9 Defaults. None of the Agents or Issuing Banks shall be deemed to have
knowledge or notice of the occurrence of a Default unless such Agent or Issuing Bank has received a
written notice from a Lender or the Borrowers specifying such Default and stating that such notice
is a “Notice of Default”. In the event that Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give prompt notice thereof to the Lenders.
The Agents and Issuing Banks shall (subject to Section 10.1) take such action with respect
to such Default as shall be directed by the Required Lenders; provided, that unless and
until an Agent or Issuing Bank shall have received such directions, such Agent or Issuing Bank may
(but shall not be obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Secured Parties except to
the extent that this Agreement expressly requires that such action be taken, or not be taken, only
with the consent or upon the authorization of the Required Lenders or all Lenders.



     SECTION 9.10 Appointment of Supplemental Agent, Sub-Agent; etc.



     (a) In the event the Administrative Agent, the Collateral Agent or an Issuing Bank reasonably
deems it necessary to comply with applicable law or, with the consent of the
Borrowers (such consent not to be unreasonably withheld or delayed), desirable, it may, in
respect of the collateral securing the Obligations, appoint (with written notice thereof to the
Administrative Agent, the Collateral Agent or Issuing Bank, as applicable) an additional individual
or institution as a separate trustee, co trustee, agent or collateral co-agent (any such additional
individual or institution being referred to herein individually as a “Supplemental Agent”).
Such Supplemental Agent shall have and shall be subject to, in respect of the collateral securing
the Obligations, each and every right, power, privilege or duty expressed or intended by this
Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the
Administrative Agent, the Collateral Agent or Issuing Bank, as applicable, with respect to such
collateral, to the extent necessary to enable such Supplemental Agent to exercise such rights,
powers and privileges with respect to such collateral and to perform such duties with respect to
such collateral.



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     (b) Without limiting the provisions of the foregoing clause (a), the Administrative
Agent, the Collateral Agent or an Issuing Bank, as applicable, 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 Collateral Agent or any
Issuing Bank, as applicable. The Administrative Agent, the Collateral Agent or an Issuing Bank, as
applicable, and any such sub agent may perform any and all of its duties and exercise its rights
and powers by or through their respective officers, directors and employees.



     (c) Should any instrument in writing from the Borrowers be required by any Supplemental Agent
or sub-agent so appointed by the Administrative Agent, the Collateral Agent or any Issuing Bank, as
applicable, to more fully and certainly vest in and confirm to him or it such rights, powers,
privileges and duties, the Borrowers shall execute, acknowledge and deliver any and all such
instruments promptly upon request by the Administrative Agent, the Collateral Agent or such Issuing
Bank, as applicable. In case any Supplemental Agent or sub-agent, or a successor thereto, shall
die, become incapable of acting, resign or be removed, all the rights, powers, privileges and
duties of such Supplemental Agent or sub-agent, or a successor thereto, to the extent permitted by
law, shall vest in and be exercised by the Administrative Agent, the Collateral Agent or such
Issuing Bank, as applicable, until the appointment of a new Supplemental Agent or sub-agent. The
provisions of Sections 9.1, 9.3 and 10.5 that refer to the Administrative
Agent, the Collateral Agent or each Issuing Bank, as applicable, shall inure to the benefit of each
Supplemental Agent and each sub-agent and all references therein to the Administrative Agent, the
Collateral Agent or any Issuing Bank, as applicable, shall be deemed to be references to the
Administrative Agent, the Collateral Agent or any Issuing Bank, as applicable, and/or each
Supplemental Agent and/or sub-agent, as the context may require.



     SECTION 9.11 Posting of Approved Electronic Communications.



     (a) The Borrowers hereby agree, unless directed otherwise by the Administrative Agent or
unless the electronic mail address referred to below has not been provided by the
Administrative Agent to the Borrowers, that it will, or will cause its Subsidiaries to,
provide to the Administrative Agent all information, documents and other materials that it is
obligated to furnish to the Administrative Agent pursuant to the Loan Documents, or to the Lenders
under Section 7.1.1, including all notices, requests, financial statements, financial and
other reports, certificates and other information materials, but excluding any such communication
that (i) is or relates to a Borrowing Request, (ii) Continuation/Conversion Notice, (iii) relates
to the payment of any principal or other amount due under this Agreement prior to the scheduled
date therefor, (iv) provides notice of any Default or Event of Default under this Agreement or any
other Loan Document or (v) is required to be delivered to satisfy any condition precedent to the
effectiveness of this Agreement and/or the borrowing of the Loans (all such non-excluded
communications being referred to herein collectively as “Communications”), by transmitting
the Communications in an electronic/soft medium to such electronic mail address notified to the
Borrowers in writing by the Administrative Agent. In addition, the Borrowers agree, and the Cayman
Borrower agrees to cause its Subsidiaries, to continue to provide the Communications to the
Administrative Agent or the Lenders, as the case may be, in the manner specified in the Loan
Documents but only to the extent requested by the Administrative Agent.



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     (b) The Borrowers further agree that the Administrative Agent may make the Communications
available to the Lenders by posting the Communications on Intralinks or a substantially similar
electronic transmission system (the “Platform”).



     (c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE INDEMNIFIED PARTIES DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. 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 THE INDEMNIFIED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM.
IN NO EVENT SHALL THE INDEMNIFIED PARTIES HAVE ANY LIABILITY TO THE BORROWERS, ANY LENDER OR ANY
OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT
OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,
CONTRACT OR OTHERWISE) ARISING OUT OF EITHER BORROWER’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION
OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY INDEMNIFIED PARTY
IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM
SUCH INDEMNIFIED PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.



     (d) The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute effective delivery of
the Communications to the Administrative Agent for purposes of the Loan Documents. Each
Lender agrees that receipt of notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective delivery of the
Communications to such Lender for purposes of the Loan Documents. Each Lender agrees to notify the
Administrative Agent in writing (including by electronic communication) from time to time of such
Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and
that the foregoing notice may be sent to such e-mail address.



     (e) Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give
any notice or other communication pursuant to any Loan Document in any other manner specified in
such Loan Document.



     SECTION 9.12 Release of Liens. Each Lender irrevocably authorizes the Administrative Agent
and the Collateral Agent to release any Lien granted to or held by or in favor of the Collateral
Agent for the benefit of the Secured Parties upon the occurrence of the Termination Date or in
connection with (i) the Disposition of assets under the Loan Documents or (ii) a merger under the
Loan Documents, so long as such Disposition or merger is otherwise permitted under the terms of a
Loan Document; provided, however, that the Administrative Agent may, prior to any
such release, request that the Borrowers certify in a written notice



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delivered to the Administrative Agent (with such detail as the Administrative Agent may reasonably request) that
such Disposition or merger is made in compliance with the terms of the Loan Documents. The parties
agree that each Guarantor shall be automatically released from its obligations under a Guaranty
upon the Disposition of such Guarantor, so long as such Disposition or merger is otherwise
permitted under the terms of the Loan Documents.



     SECTION 9.13 New Intercreditor Agreement. In connection with any secured refinancing of
the Loans pursuant to Section 7.2.2(a) or any secured financing of the Borrowers under
Section 7.2.2(h), each of the Lenders hereby authorizes and instructs each Agent to enter
into an intercreditor agreement (on terms substantially identical to those of the Intercreditor
Agreement) with the holders of Indebtedness that refinanced the Loans or that financed the secured
Indebtedness of the Borrowers under Section 7.2.2(h) (or an agent or trustee acting on
their behalf), providing that such holders (or such agent or trustee) shall have the same Lien
priority as the holders the Loans.



     SECTION 9.14 Withholding Tax. To the extent required by any applicable law, the
Administrative Agent may withhold from any payment to any Lender an amount equivalent to any
applicable withholding tax. If any Governmental Authority asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the account of any Lender for any
reason, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly
or indirectly, by the Administrative Agent as tax or otherwise, including any penalties or interest and together with any
and all expenses incurred.



ARTICLE X

MISCELLANEOUS PROVISIONS




     SECTION 10.1 Waivers, Amendments, etc. The provisions of this Agreement and each Security
Agreement may from time to time be amended, modified or waived, if such amendment, modification or
waiver is in writing and consented to by the Borrowers and the Required Lenders; provided,
however, that no such amendment, modification or waiver shall:




     (a) modify this Section 10.1, change or waive any provision of Section
4.7 regarding the application of payments made under the Loan Documents, or change or
waive any provision of Section 3.1.2 or Section 4.8 requiring pro
rata treatment of the Lenders, or the sharing of payments by all Lenders, in each
case without the consent of all Lenders;




     (b) increase the aggregate amount of any Loans required to be made by a Lender pursuant
to its Commitments, extend the final Commitment Termination Date of Loans made (or
participated in) by a Lender or extend the final Stated Maturity Date for any Lender’s Loan
or Synthetic Revolving Deposit, in each case without the consent of such Lender (it being
agreed, however, that any vote to rescind any acceleration made pursuant to
Section 8.2 and Section 8.3 of amounts owing with respect to the Loans and
other Obligations shall only require the vote of the Required Lenders);



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     (c) reduce the principal amount of or rate of interest on any Lender’s Loan, reduce any
fees described in Article III payable to any Lender or extend the date on which
principal, interest or fees are payable in respect of such Lender’s Loans, in each case
without the consent of such Lender;




     (d) reduce the percentage set forth in the definition of “Required Lenders” or modify
any requirement hereunder that any particular action be taken by all Lenders without the
consent of all Lenders;




     (e) except as otherwise expressly provided in a Loan Document, release (i) the
Borrowers from their Obligations under the Loan Documents, (ii) all or substantially all of
the collateral under the Loan Documents or (iii) other than as provided in Section
9.12, any Material Guarantor from its obligations made under its Guaranty, in each case
without the consent of all Lenders;




     (f) affect adversely the interests, rights or obligations of either Agent (in its
capacity as an Agent), unless consented to by such Agent; or




     (g) modify, change or waive any provision of clause (c), (d) or
(e) of Section 3.1.1 requiring that the proceeds of prepayments thereunder
are required to be applied to the Term Loans prior to the Revolving Loans or Synthetic
Revolving Loans, in each case, without the consent of each Lender holding a Term Loan.


No failure or delay on the part of any Lender or either Agent in exercising any power or right
under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise
of any such power or right preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on the Borrowers in any case shall entitle such
Borrower to any notice or demand in similar or other circumstances. No waiver or approval by any
Lender or either Agent under any Loan Document shall, except as may be otherwise stated in such
waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder
shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder.




     SECTION 10.2 No Waiver by Issuing Bank. No failure or delay on the part of any Issuing
Bank in exercising any power or right under any Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No waiver or approval by any Issuing
Bank under any Loan Document shall, except as may be otherwise stated in such waiver or approval,
be applicable to subsequent transactions. No waiver or approval under any Loan Document shall
require any similar or dissimilar waiver or approval thereafter to be granted hereunder.



     SECTION 10.3 Notices; Time. All notices and other communications provided under each Loan
Document shall be in writing (including by facsimile or electronic mail) and addressed, delivered
or transmitted, if to the Borrowers, the Administrative Agent, the Collateral Agent, an Issuing
Bank or a Lender to the applicable Person at its address, electronic mail address or facsimile
number set forth on Schedule II hereto or set forth in the Lender Assignment



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Agreement, or at such other address, electronic mail address or facsimile number as may be designated by such
party in a notice to the other parties; provided that any notices and other communications
made by electronic mail shall be subject to the terms of Section 9.11. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any notice, if transmitted by facsimile,
shall be deemed given when the confirmation of transmission thereof is received by the transmitter.
The parties hereto agree that delivery of an executed counterpart of a signature page to this
Agreement and each other Loan Document by facsimile or other electronic communication shall be
effective as delivery of an original executed counterpart of this Agreement or such other Loan
Document. Unless otherwise indicated, all references to the time of a day in a Loan Document shall
refer to New York time.



     SECTION 10.4 Payment of Costs and Expenses. The Borrowers agree to pay on demand all
expenses of each Agent and Issuing Bank (including the reasonable and documented fees and
out-of-pocket expenses of Latham & Watkins LLP, counsel to the Agents and Issuing Banks (subject to
the fee arrangements discussed among the Borrowers, the Administrative Agent and Latham & Watkins
LLP in connection with the initial documentation for this transaction) and of local counsel, if
any, who may be retained by or on behalf of the Agents or Issuing Banks) in connection with




     (a) the negotiation, preparation, execution and delivery of each Loan Document,
including schedules and exhibits, and any amendments, waivers, consents, supplements or
other modifications to any Loan Document as may from time to time hereafter be required,
whether or not the transactions contemplated hereby are consummated; and




     (b) the filing or recording of any Loan Document (including the financing statements)
and all amendments, supplements, amendment and restatements and other modifications to any
thereof, searches made following the Effective Date in jurisdictions where financing
statements (or other documents evidencing Liens in favor of the Secured Parties) have been
recorded and any and all other documents or instruments of further assurance required to be
filed or recorded by the terms of any Loan Document; and




     (c) the preparation and review of the form of any document or instrument relevant to
any Loan Document.


The Borrowers also agrees to reimburse each Agent, each Issuing Bank and each Lender upon demand
for all reasonable out-of-pocket expenses (including reasonable attorneys’ fees and legal expenses
of counsel to the Agents, the Issuing Banks and of counsel to each Lender) incurred by each Agent,
each Issuing Bank and each Lender in connection with (x) the negotiation of any restructuring or
“work-out” with the Borrowers, whether or not consummated, of any Obligations, (y) the enforcement
of any Obligations and (z) in connection with the occurrence of any Event of Default.



Provided that no Event of Default has occurred and is continuing, the Borrowers have the right to
approve the appointment and engagement terms of all legal and other advisors to the Agents, the


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Issuing Banks and the Lenders in connection with this transaction, such approval not to be
unreasonably withheld or delayed.




     SECTION 10.5 Indemnification. In consideration of the execution and delivery of this
Agreement by each Lender and each Agent, each Issuing Bank, the Borrowers hereby indemnify,
exonerate and hold each Lender and each Agent, each Issuing Bank and each of their respective
Affiliates and each of their respective officers, directors, employees, agents, advisers, trustees,
controlling persons and members of each of the foregoing (collectively, the “Indemnified
Parties”) free and harmless from and
against any and all actions, causes of action, suits, losses, costs, liabilities and damages, and
expenses incurred in connection therewith (irrespective of whether any such Indemnified Party is a
party to the action for which indemnification hereunder is sought), including reasonable and
documented attorneys’ fees, charges and disbursements, whether incurred in connection with actions
between or among the parties hereto or the parties, hereto and third parties (collectively, the
“Indemnified Liabilities”), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to (regardless of whether such Indemnified Party is a party
thereto and regardless of whether such matter is initiated by a third party or by either Borrower
or any of their respective Affiliates):




     (a) any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Loan, including all Indemnified Liabilities arising in
connection with the transactions contemplated by the Loan Documents;




     (b) the entering into and performance of any Loan Document by any of the Indemnified
Parties (including any action brought by or on behalf of either Borrower as the result of
any determination by the Required Lenders pursuant to Article V not to fund any
Loan, provided that any such action is resolved in favor of such Indemnified Party);




     (c) any investigation, litigation or proceeding related to any acquisition or proposed
acquisition by the Cayman Borrower or any of its Subsidiaries of all or any portion of the
Capital Securities or assets of any Person, whether or not an Indemnified Party is party
thereto;




     (d) any investigation, litigation or proceeding related to any environmental cleanup,
audit, compliance or other matter relating to the protection of the environment or the
release by the Cayman Borrower or any of its Subsidiaries of any Hazardous Material;




     (e) the presence on or under, or the escape, seepage, leakage, spillage, discharge,
emission, discharging or releases from, any facility or real property owned, operated or
leased by the Cayman Borrower or any of its Subsidiaries of any Hazardous Material
(including any losses, liabilities, damages, injuries, costs, expenses or claims asserted or
arising under any Environmental Law), regardless of whether caused by, or within the control
of, such Borrower or Subsidiary;




     (f) each Lender’s Environmental Liability (the indemnification herein shall survive
repayment of the Obligations and any transfer of any facility or real property of the Cayman
Borrower or any of its Subsidiaries by foreclosure or by a deed in lieu of



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foreclosure for any Lender’s Environmental Liability, regardless of whether caused by, or within the control
of, such Borrowers or Subsidiary); or




     (g) any Indemnified Party’s enforcement or defending of the Loan Documents or such
Indemnified Party’s relationship with either Borrower under any Loan Document;


except for Indemnified Liabilities arising for the account of a particular Indemnified Party by
reason of the relevant Indemnified Party’s gross negligence or willful misconduct that have been
finally determined and are non-appealable judgments from a court of competent jurisdiction. It is
expressly understood and agreed that to the extent that any Indemnified Party is strictly liable
under any Environmental Laws, the Borrowers’ obligation to such Indemnified Party under this
indemnity shall likewise be without regard to fault on the part of the Borrowers with respect to
the violation or condition which results in liability of an Indemnified Party. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, the Borrowers agree to
make the maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.




     SECTION 10.6 Survival. The obligations of the Borrowers under Sections 4.3,
4.4, 4.5, 4.6, 10.4 and 10.5, and the obligations of the
Lenders under Section 9.1, shall in each case survive any assignment from one Lender to
another (in the case of Sections 10.4 and 10.5) and the occurrence of the
Termination Date. The representations and warranties made by the Borrowers in each Loan Document
shall survive the execution and delivery of such Loan Document.



     SECTION 10.7 Severability. Any provision of any Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions
of such Loan Document or affecting the validity or enforceability of such provision in any other
jurisdiction.



     SECTION 10.8 Headings. The various headings of each Loan Document are inserted for
convenience only and shall not affect the meaning or interpretation of such Loan Document or any
provisions thereof.



     SECTION 10.9 Execution in Counterparts, Effectiveness, etc. This Agreement may be executed
by the parties hereto in several counterparts, each of which shall be an original and all of which
shall constitute together but one and the same agreement. This Agreement shall become effective
when counterparts hereof executed on behalf of the Borrowers, the Agents, the Issuing Bank, the
Documentation Agent and each Lender (or notice thereof satisfactory to the Administrative Agent),
shall have been received by the Administrative Agent.



     SECTION 10.10 Governing Law; Entire Agreement. EACH LOAN DOCUMENT (EXCEPT AS OTHERWISE
EXPRESSLY SET FORTH IN A LOAN DOCUMENT) WILL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK). ALL LETTERS OF CREDIT SHALL BE GOVERNED BY, AND SHALL



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BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE
DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN
EFFECT, ON THE DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE (THE
“UNIFORM CUSTOMS”) AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE
STATE OF NEW YORK. The Loan Documents constitute the entire understanding among the parties hereto
with respect to the subject matter thereof and supersede any prior agreements, written or oral,
with respect thereto.



     SECTION 10.11 Successors and Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and assigns; provided,
however, that the Borrowers may not assign or transfer their respective rights or
obligations hereunder without the consent of all Lenders.



     SECTION 10.12 Sale and Transfer of Loans; Participations in Loans and Commitments. Each
Lender may assign, or sell participations in, its Loans, Commitments and Synthetic Revolving
Deposits to one or more other Persons in accordance with the terms set forth below.




     (a) Any Lender may, with the consent of, except in the case of an assignment to a
Lender, an Affiliate of a Lender or an Approved Fund, the Administrative Agent (such consent
not to be unreasonably withheld or delayed), assign to one or more Persons all or a portion
of its rights and obligations under this Agreement with respect to the Term Loans (including
all or a portion of its Term Loan Commitments and the Term Loans at the time owing to it)
and/or Synthetic Revolving Deposits; provided that:




     (i) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender’s Term Loan
Commitments and/or Term Loans at the time owing to it and except in the case of an
assignment of the entire remaining amount of the assigning Lender’s Synthetic
Revolving Deposits, the amount of the Synthetic Revolving Deposits, Term Loan
Commitments or Term Loans so assigned shall not be less than $1,000,000 and shall be
in integral multiples of $1,000,000 in excess thereof;




     (ii) the parties to each assignment shall execute and deliver to the
Administrative Agent a Lender Assignment Agreement via an electronic settlement
system acceptable to the Administrative Agent (or, if previously agreed with the
Administrative Agent, manually), and shall pay to the Administrative Agent a
processing and recordation fee of $3,500 (which fee may be waived or
reduced in the sole discretion of the Administrative Agent), and if the
assignee is not already a Lender, administrative details information with respect to
such assignee and applicable tax forms; and




     (iii) the assignor Lender shall furnish the Borrowers with notice of such
assignment.



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     (b) Any Lender may, with the consent of, except in the case of an assignment to a
Lender, an Affiliate of a Lender or an Approved Fund, each Revolving LC Issuer (such consent
not to be unreasonably withheld or delayed), assign to one or more Persons all or a portion
of its rights and obligations and Commitments under this Agreement with respect to the
Revolving Loans; provided that:




     (i) except in the case of an assignment of the entire remaining amount of the
assigning Lender’s Revolving Loan Commitments and the Revolving Loans at the time
owing to it, the amount of the Revolving Loan Commitments or Revolving Loans, so
assigned shall not be less than $1,000,000 and shall be in integral multiples of
$1,000,000 in excess thereof;




     (ii) in the case of any such assignment by a Lender that is a Joint Lead
Arranger, such Lender’s Revolving Loans outstanding plus such Lender’s
Percentage of the then unused Revolving Loan Commitment Amount shall not be less
than $50,000,000, after giving effect to such assignment;




     (iii) the parties to each assignment shall execute and deliver to the
Administrative Agent a Lender Assignment Agreement via an electronic settlement
system acceptable to the Administrative Agent (or, if previously agreed with the
Administrative Agent, manually), and shall pay to the Administrative Agent a
processing and recordation fee of $3,500 (which fee may be waived or reduced in the
sole discretion of the Administrative Agent), and if the assignee is not already a
Lender, administrative details information with respect to such assignee and
applicable tax forms;




     (iv) the assignor Lender shall furnish the Cayman Borrower with notice of such
assignment;




     (v) the assignee must be an Approved Bank; and




     (vi) no Person may hold, in the aggregate, greater than $125,000,000 of
Revolving Loan Commitments or have more than $125,000,000 of Revolving Loans owing
to it at any time.




     (c) Subject to the recording thereof by the Administrative Agent pursuant to clause
(d), from and after the effective date specified in each Lender Assignment Agreement,
(i) the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Lender Assignment Agreement, have the rights and obligations
of a Lender under this Agreement, and (ii) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Lender Assignment Agreement, subject to Section
10.6, be released from its obligations under this Agreement (and, in the case of a
Lender Assignment Agreement 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 any provisions of this Agreement which by their terms survive
the termination of this Agreement). Any term or provision hereof to the contrary
notwithstanding, no portion of any Synthetic Revolving Deposit of any



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assigning Lender shall be refunded in connection with any assignment by such Lender, but instead (x) the applicable
Eligible Assignee shall purchase from such assigning Lender that portion of the Synthetic
Revolving Deposit identified in the applicable Lender Assignment Agreement for such
consideration as mutually agreed upon by such Approved Bank and the assigning Lender; and
(y) such assigned portion of such Synthetic Revolving Deposit shall remain on deposit in the
Synthetic Revolving Deposit Account and, upon the effectiveness of such assignment, shall
become the Synthetic Revolving Deposit of such Eligible Assignee. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with
clauses (a) and (b) shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in accordance with
clause (d).




     (d) The Administrative Agent shall record each assignment made in accordance with this
Section 10.12 in the Register pursuant to clause (a) of Section 2.5.
The Register shall be available for inspection by the Borrowers and any Lender, at any
reasonable time and from time to time upon reasonable prior notice. In connection with each
assignment of Synthetic Revolving Deposits, the applicable Synthetic Revolving Deposit of
the assigning Lender shall not be released, but shall instead be purchased by the relevant
assignee and continue to be held for application (to the extent not already applied) in
accordance with Article II to satisfy such assignee’s obligations in respect of
Synthetic Revolving Loans. Each Lender with a Synthetic Revolving Deposit agrees that
immediately prior to each assignment by a Lender (i) the Administrative Agent shall
establish a new Synthetic Revolving Deposit Sub-Account in the name of the assignee Lender,
(ii) unless otherwise consented to by the Administrative Agent, a corresponding portion of
the applicable Synthetic Revolving Deposit credited to the Synthetic Revolving Deposit
Sub-Account of the assigning Lender shall be purchased by the assignee Lender and shall be
transferred from the assigning Lender’s Synthetic Revolving Deposit Sub-Account to the
assignee Lender’s Synthetic Revolving Deposit Sub-Account, and (iii) if after giving effect
to such assignment the applicable Synthetic Revolving Deposit of assigning Lender shall be
zero, the Administrative Agent shall close the applicable Synthetic Revolving Deposit
Sub-Account of such assignor.




     (e) Any Lender may, without the consent of, or notice to, the Borrowers or the
Administrative Agent, sell participations to one or more banks or other entities (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 Commitments and/or Loans owing to it
and/or any portion of the Synthetic Revolving Deposit made by 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 applicable Borrower, the Agents 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



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any amendment, modification or waiver with respect to any of the items set forth in clauses (a)
through (e) of Section 10.1, in each case except as otherwise specifically
provided in a Loan Document. Subject to clause (e), the Borrowers agree that each
Participant shall be entitled to the benefits of Sections 4.3, 4.4,
4.5, 4.6, 7.1.1, 10.4 and 10.5 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to clause
(b). To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 4.9 as though it were a Lender, provided such Participant agrees
to be subject to Section 4.8 as though it were a Lender.




     (f) A Participant shall not be entitled to receive any greater payment under
Sections 4.3, 4.4, 4.5, 4.6, 10.4 and 10.5
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 applicable Borrower’s prior written consent. In addition, if
at the time of the sale of such participation, any greater Taxes subject to payment under
Section 4.6 would apply to the Participant than applied to the applicable Lender,
then such Participant shall not be entitled to any payment under Section 4.6 with
respect to the portion of such Taxes as exceeds the Taxes applicable to the Lender at the
time of the sale of the participation unless the Participant’s request for the applicable
Borrower’s prior written consent for the Participation described in the first sentence of
this clause states that such greater Taxes would be applicable to such Participant.




     (g) Each Lender that sells a participating interest in any Loan or Synthetic Revolving
Deposit to a Participant shall, as agent of the applicable Borrower solely for the purpose
of this Section 10.12, record in book entries maintained by such Lender the name and
the amount of the participating interest of each Participant entitled to receive payments in
respect of such participating interests.




     (h) Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement 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 of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.



     SECTION 10.13 Other Transactions. Nothing contained herein shall preclude either Agent or
any Lender from engaging in any transaction, in addition to those contemplated by the Loan
Documents, with either Borrower or any of their respective Affiliates in which such Borrower or
Affiliate is not restricted hereby from engaging with any other Person.



     SECTION 10.14 Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE
COLLATERAL AGENT, THE ISSUING BANKS, THE LENDERS OR THE BORROWERS IN CONNECTION HEREWITH OR



115









 







THEREWITH MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
AGENTS’ OR ISSUING BANKS’ OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. EACH BORROWER HEREBY IRREVOCABLY APPOINTS CT CORPORATION SYSTEMS (THE
“PROCESS AGENT”), WITH AN OFFICE ON THE CLOSING DATE AT 111 EIGHTH AVENUE, NEW YORK, NEW
YORK 10011, UNITED STATES, AS ITS AGENT TO RECEIVE, ON ITS BEHALF AND ON BEHALF OF ITS PROPERTY,
SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY
SUCH LITIGATION OR ANY ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A
COPY OF SUCH PROCESS TO SUCH PERSON IN CARE OF THE PROCESS AGENT AT THE PROCESS AGENT’S ABOVE
ADDRESS, AND EACH BORROWER HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT
SUCH SERVICE ON ITS BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE, EACH BORROWER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN SECTION
10.3. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.



     SECTION 10.15 Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, EACH
LENDER, EACH ISSUING BANK AND EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, EACH LOAN DOCUMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, SUCH ISSUING BANK, SUCH LENDER OR EACH BORROWER IN
CONNECTION THEREWITH. EACH BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT
TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE
AGENT, THE COLLATERAL AGENT, EACH ISSUING BANK, EACH LENDER AND EACH ISSUING BANK ENTERING INTO THE
LOAN DOCUMENTS.



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     SECTION 10.16 Judgment Currency. This is an international loan transaction in which the
specification of Dollars and payment in New York City is of the essence, and the obligations of
each Borrower under this Agreement to make payment to (or for the account of) a Lender in Dollars
shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed
in or converted into any other currency or in another place except to the extent that such tender
or recovery results in the effective receipt by such Lender in New York City of the full amount of
Dollars payable to such Lender under this Agreement. If for the purpose of obtaining judgment in
any court it is necessary to convert a sum due hereunder in Dollars into another currency (in this
Section 10.16 called the “judgment currency”), the rate of exchange that shall be
applied shall be that at which in accordance with normal banking procedures the Administrative
Agent could purchase such Dollars at its New York City office with the judgment currency on the
Business Day next preceding the day on which such judgment is rendered. The obligation of each
Borrower in respect of any such sum due from it to either Agent, any Issuing Bank or any Lender
hereunder or under any Loan Document (in this Section 10.16 called an “Entitled
Person”) shall, notwithstanding the rate of exchange actually applied in rendering such
judgment, be discharged only to the extent that on the Business Day following receipt by such
Entitled Person of any sum adjudged to be due hereunder in the judgment currency such Entitled
Person may in accordance with normal banking procedures purchase and transfer Dollars to New York
City with the amount of the judgment currency so adjudged to be due; and such Borrower hereby, as a
separate obligation and notwithstanding any such judgment, agrees to indemnify such Entitled Person
against, and to pay such Entitled Person on demand, in Dollars, the amount (if any) by which the
sum originally due to such Entitled Person in Dollars hereunder exceeds the amount of the Dollars
so purchased and transferred.



     SECTION 10.17 Confidentiality. The Lenders, the Administrative Agent, the Collateral Agent
and the Issuing Banks shall hold all non-public information obtained pursuant to or in connection
with this Agreement or any other Loan Document about each Borrower or any of its Subsidiaries or
Affiliates in accordance with their customary procedures for handling confidential information of
this nature, but may make disclosure (a) pursuant to the order of any court or administrative
agency or in any pending legal or administrative proceeding, or otherwise as required by applicable
law or compulsory legal process, (b) upon the request or demand of any regulatory authority having
jurisdiction over any Lender, the Administrative Agent, the Collateral Agent, the Issuing Banks or
any of their Affiliates, (c) to the extent that such information becomes publicly available other
than by reason of disclosure in violation of this Section, (d) to the Lenders, the Administrative
Agent, the Collateral Agent, the Issuing Banks or any of their Affiliates and their respective
employees, legal counsel, independent auditors and other experts or agents who need to know such
information in connection with the consummation of the transactions contemplated in the Loan
Documents and who are informed of the confidential nature of such information, (e) to assignees,
participants or hedge or swap counterparties (and their respective professional advisors) or
potential assignees, participants or hedge or swap counterparties (and their respective
professional advisors) who agree to be bound by the terms of this Section or substantially similar
confidentiality provisions or (f) for purposes of establishing a “due diligence” defense.



     Notwithstanding the foregoing, any party to this Agreement (and each Affiliate, director,
officer, employee, agent or representative of the foregoing or such Affiliate) may disclose to any



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and all persons, without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated herein and all materials of any kind (including opinions or other tax
analyses) that are provided to such party relating to such tax treatment or tax structure. The
foregoing language is not intended to waive any confidentiality obligations otherwise applicable
under this Agreement except with respect to the information and materials specifically referenced
in the preceding sentence. This authorization does not extend to disclosure of any other
information, including (i) the identity of participants or potential participants in the
transactions contemplated herein (and no party shall disclose any information relating to such tax
treatment and tax structure to the extent nondisclosure is reasonably necessary in order to comply
with applicable securities laws (it being understood that, for such purpose, the tax treatment of
the transactions contemplated by this Agreement is the purported or claimed U.S. Federal income tax
treatment of such transactions and the tax structure of such transaction is any fact that may be
relevant to understanding the purported or claimed U.S. Federal income tax treatment of such
transactions), (ii) the existence or status of any negotiations, or (iii) any financial, business,
legal or personal information of or regarding a party or its affiliates, or of or regarding any
participants or potential participants in the transactions contemplated herein (or any of their
respective affiliates), in each case to the extent such other information is not related to the tax
treatment or tax structure of the transactions contemplated herein.



     SECTION 10.18 Independence of Covenants and Default Provisions. All covenants and default provisions contained in this Agreement or any other Loan Document
shall be given independent effect such that, in the event a particular action or condition is not
permitted by any of such covenants or default provisions, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant or default provision
shall not, unless expressly so provided in such first covenant or default provision, avoid the
occurrence of a Default or an Event of Default if such action is taken or such condition exists



     SECTION 10.19 Counsel Representation. EACH BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS
BEEN REPRESENTED BY COMPETENT COUNSEL IN THE NEGOTIATION OF THIS AGREEMENT, AND THAT ANY RULE OR
CONSTRUCTION OF LAW ENABLING SUCH BORROWER TO ASSERT THAT ANY AMBIGUITIES OR INCONSISTENCIES IN THE
DRAFTING OR PREPARATION OF THE TERMS OF THIS AGREEMENT SHOULD DIMINISH ANY RIGHTS OR REMEDIES OF
THE AGENTS, THE ISSUING BANKS OR THE OTHER SECURED PARTIES ARE HEREBY WAIVED BY SUCH BORROWER.



     SECTION 10.20 No Immunity. To the extent that the Borrowers may be or become entitled, in
any jurisdiction in which judicial proceedings may at any time be commenced with respect to this
Agreement or any other Loan Document, to claim for itself or its property any immunity from suit,
court jurisdiction, attachment prior to judgment, attachment in aid of execution of a judgment,
execution of a judgment or from any other legal process or remedy relating to its obligations under
this Agreement or any other Loan Document, and to the extent that in any such jurisdiction there
may be attributed such an immunity (whether or not claimed), the Borrowers hereby irrevocably agree
not to claim and hereby irrevocably waives such immunity to the fullest extent permitted by the
laws of such jurisdiction and agrees that the foregoing waiver shall have the fullest extent
permitted under the Foreign Sovereign Immunities



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Act of 1976 of the United States of America and is intended to be irrevocable for purposes of such Act.



     SECTION 10.21 Patriot Act. Each Lender hereby notifies the Borrowers that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record information that
identifies the Borrowers, which information includes the name and address of the Borrowers and
other information that will allow such Lender to identify the Borrowers in accordance with the
Patriot Act.



     SECTION 10.22 Joint and Several Obligations. All obligations of the Borrowers hereunder
and under the other Loan Documents shall be joint and several.



     SECTION 10.23 Amendment and Restatement. It is the intention of each of the parties hereto that the Existing Credit Agreement be amended
and restated so as to preserve the perfection and priority of all security interests securing
indebtedness and obligations under the Existing Credit Agreement and the other Loan Documents and
that all Indebtedness and Obligations of the Borrowers hereunder and thereunder shall continue to
be secured by the Security Agreements. The parties hereto further acknowledge and agree that this
Agreement constitutes an amendment of the Existing Credit Agreement made under and in accordance
with the terms of Section 10.1 of the Existing Credit Agreement. In addition, unless specifically
amended hereby, each of the Loan Documents, the Exhibits and Schedules shall continue in full force
and effect and, from and after the Restatement Effective Date, all references to the “Credit
Agreement” contained therein shall be deemed to refer to this Agreement.




[Remainder of page intentionally left blank]



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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized as of the day and year first above written.











	 	 	 	 	 	 	 
	 	 	AEI,	 	 
	 	 	as Cayman Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ John Fulton	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	John Fulton	 	 
	 

	 	Title:	 	Chief Financial Officer	 	 










 









 









	 	 	 	 	 	 	 
	 	 	AEI FINANCE HOLDING LLC,	 	 
	 	 	as U.S. Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Ranabir Dutt	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Ranabir Dutt	 	 
	 

	 	Title:	 	Duly authorized signatory	 	 












 









 










	 	 	 	 	 	 	 
	 	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as Administrative Agent, a Revolving LC Issuer, a 

Synthetic LC
Issuer and a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ James Moran	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	James Moran	 	 
	 

	 	Title:	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Mikhail Faybusovich	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Mikhail Faybusovich	 	 
	 

	 	Title:	 	Vice President	 	 










 









 













	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,

as Collateral Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Robert W. Traband 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Robert W. Traband	 	 
	 

	 	Title:	 	Executive Director