EX-10.1



 








Exhibit 10.1









CREDIT AGREEMENT




dated as of




August 19, 2005




Among




NATIONAL FUEL GAS COMPANY




The Lenders Party Hereto




And




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent




HSBC BANK USA, NATIONAL ASSOCIATION

As Co-Syndication Agent




MANUFACTURERS AND TRADERS TRUST COMPANY,

As Co-Syndication Agent




 






J.P. MORGAN SECURITIES INC.,

as Sole Bookrunner and Sole Lead Arranger











 



 




TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	ARTICLE I Definitions	 	 	1	 
	 
	 	SECTION 1.01.	 	Defined Terms	 	 	1	 
	 
	 	SECTION 1.02.	 	Classification of Loans and Borrowings	 	 	12	 
	 
	 	SECTION 1.03.	 	Terms Generally	 	 	12	 
	 
	 	SECTION 1.04.	 	Accounting Terms; GAAP	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II The Credits	 	 	12	 
	 
	 	SECTION 2.01.	 	Commitments	 	 	12	 
	 
	 	SECTION 2.02.	 	Loans and Borrowings	 	 	13	 
	 
	 	SECTION 2.03.	 	Requests for Borrowings	 	 	13	 
	 
	 	SECTION 2.04.	 	Funding of Borrowings	 	 	14	 
	 
	 	SECTION 2.05.	 	Interest Elections	 	 	14	 
	 
	 	SECTION 2.06.	 	Termination and Reduction of Commitments	 	 	15	 
	 
	 	SECTION 2.07.	 	Repayment of Loans; Evidence of Debt	 	 	16	 
	 
	 	SECTION 2.08.	 	Prepayment of Loans	 	 	17	 
	 
	 	SECTION 2.09.	 	Fees	 	 	17	 
	 
	 	SECTION 2.10.	 	Interest	 	 	18	 
	 
	 	SECTION 2.11.	 	Alternate Rate of Interest	 	 	18	 
	 
	 	SECTION 2.12.	 	Increased Costs	 	 	19	 
	 
	 	SECTION 2.13.	 	Break Funding Payments	 	 	20	 
	 
	 	SECTION 2.14.	 	Taxes	 	 	20	 
	 
	 	SECTION 2.15.	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	 	 	21	 
	 
	 	SECTION 2.16.	 	Mitigation Obligations; Replacement of Lenders	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III Representations and Warranties	 	 	24	 
	 
	 	SECTION 3.01.	 	Corporate Existence	 	 	24	 
	 
	 	SECTION 3.02.	 	Financial Condition	 	 	24	 
	 
	 	SECTION 3.03.	 	Litigation	 	 	24	 
	 
	 	SECTION 3.04.	 	No Breach	 	 	25	 
	 
	 	SECTION 3.05.	 	Action	 	 	25	 
	 
	 	SECTION 3.06.	 	Approvals	 	 	25	 
	 
	 	SECTION 3.07.	 	Use of Credit	 	 	25	 
	 
	 	SECTION 3.08.	 	ERISA	 	 	25	 
	 
	 	SECTION 3.09.	 	Taxes	 	 	26	 
	 
	 	SECTION 3.10.	 	Investment Company Act	 	 	26	 
	 
	 	SECTION 3.11.	 	Public Utility Holding Company Act	 	 	26	 
	 
	 	SECTION 3.12.	 	Environmental Matters	 	 	27	 
	 
	 	SECTION 3.13.	 	Subsidiaries, Etc	 	 	27	 
	 
	 	SECTION 3.14.	 	True and Complete Disclosure	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV Conditions	 	 	27	 
	 
	 	SECTION 4.01.	 	Effective Date	 	 	27	 
	 
	 	SECTION 4.02.	 	Each Credit Event	 	 	29	 





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	ARTICLE V Covenants of the Borrower	 	 	29	 
	 
	 	SECTION 5.01.	 	Financial Statements, Etc	 	 	29	 
	 
	 	SECTION 5.02.	 	Existence, Etc	 	 	31	 
	 
	 	SECTION 5.03.	 	Insurance	 	 	32	 
	 
	 	SECTION 5.04.	 	Prohibition of Fundamental Changes	 	 	32	 
	 
	 	SECTION 5.05.	 	Limitation on Liens	 	 	33	 
	 
	 	SECTION 5.06.	 	Use of Proceeds	 	 	34	 
	 
	 	SECTION 5.07.	 	Financial Condition	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI Events of Default	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII The Administrative Agent	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII Miscellaneous	 	 	39	 
	 
	 	SECTION 8.01.	 	Notices	 	 	39	 
	 
	 	SECTION 8.02.	 	Waivers; Amendments	 	 	40	 
	 
	 	SECTION 8.03.	 	Expenses; Indemnity; Damage Waiver	 	 	41	 
	 
	 	SECTION 8.04.	 	Successors and Assigns	 	 	42	 
	 
	 	SECTION 8.05.	 	Survival	 	 	45	 
	 
	 	SECTION 8.06.	 	Counterparts: Integration; Effectiveness	 	 	45	 
	 
	 	SECTION 8.07.	 	Severability	 	 	45	 
	 
	 	SECTION 8.08.	 	Right of Setoff	 	 	46	 
	 
	 	SECTION 8.09.	 	Governing Law; Jurisdiction; Consent to Service of Process	 	 	46	 
	 
	 	SECTION 8.10.	 	WAIVER OF JURY TRIAL	 	 	46	 
	 
	 	SECTION 8.11.	 	Headings	 	 	47	 
	 
	 	SECTION 8.12.	 	Confidentiality	 	 	47	 





SCHEDULES:




Schedule 2.01 — Commitments

Schedule 3.06 — Governmental Approvals

Schedule 4.01 — Repaid Indebtedness



EXHIBITS:




Exhibit A — Form of Assignment and Assumption




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     CREDIT AGREEMENT dated as of August 19, 2005, among NATIONAL FUEL GAS COMPANY, the LENDERS
party hereto, and JPMORGAN CHASE BANK, N.A., as Administrative Agent.



     The parties hereto agree as follows:



ARTICLE I




Definitions




     SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:



     “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.



     “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.



     “Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder.



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



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



     “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.



     “Anti-Terrorism Law” means the USA Patriot Act or any other law pertaining to the
prevention of future acts of terrorism, in each case as such law may be amended from time to time.



     “Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.









 



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     “Applicable Rate” means, for any day, with respect to any ABR Loan or Eurodollar Loan,
or with respect to the facility fees payable hereunder, as the case may be, the applicable rate per
annum set forth below under the caption “ABR Applicable Margin”, “Eurodollar Applicable Margin” or
“Facility Fee Rate”, as the case may be, based upon the ratings by S&P, Moody’s and Fitch,
respectively, applicable on such date to the Index Debt:



	 	 	 	 	 	 	 
	Ratings of Index	 	ABR	 	Eurodollar Rate	 	Facility
	Debt	 	Applicable Margin	 	Applicable Margin	 	Fee Rate
	Category 1
	 	 	 	 	 	 
	A/A2/A
	 	0.000%	 	0.180%	 	0.0700%
	Category 2
	 	 	 	 	 	 
	A-/A3/A-
	 	0.000%	 	0.270%	 	0.0800%
	Category 3
	 	 	 	 	 	 
	BBB+/Baal/BBB+
	 	0.000%	 	0.350%	 	0.1000%
	Category 4
	 	 	 	 	 	 
	BBB/Baa2/BBB
	 	0.000%	 	0.425%	 	0.1250%
	Category 5
	 	 	 	 	 	 
	BBB-/Baa3/BBB-
	 	0.050%	 	0.575%	 	0.1750%
	Category 6
	 	 	 	 	 	 
	<BBB-/Baa3/BBB-
	 	0.500%	 	0.750%	 	0.2500%





provided, that through the Multi-Year Facility Maturity Date, for each day the
aggregate principal amount of Multi-Year Facility Loans outstanding is greater than 50% of the
aggregate Multi-Year Facility Commitments, each of the ABR Applicable Margin and the Eurodollar
Applicable Margin set forth above for the Multi-Year Facility Loans shall be increased by 0.100%.




     For purposes of the foregoing, with respect to the Index Debt, (i) if all three Rating
Agencies issue a rating and if the ratings from two Rating Agencies are at the same level and the
rating from the third Rating Agency is at a lower level, the higher rating shall apply; (ii) if the
ratings from two Rating Agencies are at the same level and the rating from the third Rating Agency
is at a higher level, the lower rating shall apply; (iii) if all three ratings from the Rating
Agencies are at different levels, the rating next below the highest of the three shall apply; (iv)
if only two Rating Agencies issue a rating, the lower of such ratings shall apply; and (v) if only
one Rating Agency issues a rating, such rating shall apply. If the ratings established or deemed
to have been established by any Rating Agency shall be changed (other than as a result of a change
in the rating system of such Rating Agency), such change shall be effective as of the date on which
it is first announced by the applicable Rating Agency, irrespective of when notice of such change
shall have been furnished by the Borrower to the Administrative Agent and the Lenders pursuant to
Section 5.01(j) or otherwise. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of any Rating Agency shall change, or
if the sole remaining Rating Agency providing a rating with respect to the Index









 



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Debt shall cease to be in the business of rating corporate debt obligations, the Borrower and
the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating
system or the unavailability of ratings from such Rating Agency and, pending the effectiveness of
any such amendment, the Applicable Rate shall be determined by reference to the rating most
recently in effect prior to such change or cessation.




     “Approved Fund” has the meaning assigned to such term in Section 8.04.



     “Assessment Rate” means, for any day, the annual assessment rate in effect on such day
that is payable by a member of the Bank Insurance Fund classified as “well-capitalized” and within
supervisory subgroup “B” (or a comparable successor risk classification) within the meaning of 12
C.F.R. Part 327 (or any successor provision) to the Federal Deposit Insurance Corporation for
insurance by such Corporation of time deposits made in dollars at the offices of such member in the
United States; provided that if, as a result of any change in any law, rule or regulation,
it is no longer possible to determine the Assessment Rate as aforesaid, then the Assessment Rate
shall be such annual rate as shall be determined by the Administrative Agent to be representative
of the cost of such insurance to the Lenders.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 8.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.



     “Bankruptcy Code” means the Federal Bankruptcy Code of 1978, as amended from time to
time.



     “Base CD Rate” means the sum of (a) the Three-Month Secondary CD Rate multiplied by
the Statutory Reserve Rate and (b) the Assessment Rate.



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



     “Borrower” means National Fuel Gas Company, a New Jersey corporation.



     “Borrowing” means Loans of the same Type, made, converted or continued on the same
date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.



     “Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.



     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.



     “Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or









 



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personal property, or a combination thereof, which obligations are required to be classified
and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.




     “Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender (or, for purposes of Section 2.12(b), by any lending office of such Lender
or by such Lender’s holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after the date of this
Agreement.



     “CLO” has the meaning assigned to such term in Section 8.04.



     “Code” means the Internal Revenue Code of 1986, as amended from time to time.



     “Commitment” means, with respect to each Lender, such Lender’s Multi-Year Facility
Commitment.



     “Consolidated Capitalization” means, at any date, the sum of Consolidated Net Worth
and Consolidated Indebtedness.



     “Consolidated Indebtedness” means, at any date, all Indebtedness of the Borrower and
its Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP.



     “Consolidated Net Worth” means, at any date, all amounts that would, in conformity
with GAAP, be included on a consolidated balance sheet of the Borrower and its Subsidiaries under
stockholders’ equity at such time.



     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.



     “Credit Exposure” means, with respect to any Lender at any time, the outstanding
principal amount of such Lender’s Loans at such time.



     “Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.



     “dollars” or “$” refers to lawful money of the United States of America.



     “Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 8.02).



     “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered









 



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into by any Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.




     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b), (c), (m) or (o)
of the Code.



     “Eurodollar” when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.



     “Event of Default” has the meaning assigned to such term in Article VI.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
lending office is located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the
case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.16(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office)
or is attributable to such Foreign Lender’s failure to comply with Section 2.14(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new lending office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.14(a).



     “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) 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, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received









 



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by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.




     “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.



     “Fitch” means Fitch, Inc.



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



     “GAAP” means generally accepted accounting principles in the United States of America.



     “Governmental Approval” means any authorization, consent, approval, license, ruling,
permit, tariff, rate, certification, exemption, filing, variance, order, judgment, decree,
publication, notice to, declaration of or registration by or with any Governmental Authority.



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



     “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.



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



     “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all









 



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obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c)
all obligations of such Person upon which interest charges are customarily paid, (d) all
obligations of such Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect of the deferred
purchase price of property or services (excluding current accounts payable incurred in the ordinary
course of business), (f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed,
(g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of
such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations, contingent or
otherwise, of such Person in respect of bankers’ acceptances. The Indebtedness of any Person shall
include the Indebtedness of any other entity (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 entity, except to the extent the terms of
such Indebtedness provide that such Person is not liable therefor.




     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of the
Borrower that is not guaranteed by any other Person or subject to any other credit enhancement.



     “Interest Election Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.05.



     “Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each
March, June, September and December and (b) with respect to any Eurodollar Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to
the last day of such Interest Period that occurs at intervals of three months’ duration after the
first day of such Interest Period.



     “Interest Period” means, with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the Borrower may elect;
provided, that (a) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (b) any Interest Period pertaining to a Eurodollar
Borrowing that commences on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For purposes hereof,
the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of such Borrowing.









 



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     “Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Assumption, other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Assumption.



     “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Page 3750 of the Dow Jones Market Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the “LIBO Rate” with respect to such Eurodollar
Borrowing for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for
a maturity comparable to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.



     “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.



     “Loans” means Multi-Year Facility Loans made by the Lenders to the Borrower pursuant
to this Agreement.



     “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
property, results of operations, prospects or financial condition of the Borrower and its
Subsidiaries taken as a whole, (b) the validity or enforceability of, or the ability of the
Borrower to perform any of its obligations under, this Agreement or (c) the rights of, or remedies
or benefits available to, the Administrative Agent and the Lenders under this Agreement.



     “Material Subsidiary” means, at any time, a Subsidiary of the Borrower whose assets
exceed 10% of the consolidated assets of the Borrower and its Subsidiaries.



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



     “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.



     “Multi-Year Facility Availability Period” means the period from and including the
Effective Date to but excluding the earlier of the Multi-Year Facility Maturity Date and the
Multi-Year Facility Commitment Termination Date.









 



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     “Multi-Year Facility Commitment” means, with respect to each Lender, the commitment of
such Lender to make Multi-Year Facility Loans, expressed as an amount representing the maximum
aggregate amount of such Lender’s Multi-Year Facility Credit Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.06 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section 8.04. The initial
amount of each Lender’s Multi-Year Facility Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its Multi-Year Facility
Commitment, as applicable. The initial aggregate amount of the Lenders’ Multi-Year Facility
Commitments is $300,000,000.



     “Multi-Year Facility Commitment Termination Date” means September 30, 2010.



     “Multi-Year Facility Credit Exposure” means, with respect to any Lender at any time,
the outstanding principal amount of such Lender’s Multi-Year Facility Loans at such time.



     “Multi-Year Facility Loan” means a Loan made pursuant to Section 2.01.



     “Multi-Year Facility Maturity Date” means September 30, 2010.



     “Other Obligations” has the meaning set forth in Section 5.05.



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



     “Participant” has the meaning set forth in Section 8.04.



     “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.



     “Permitted Receivables Financing” shall mean a transaction or series of transactions
pursuant to which a Securitization Subsidiary purchases Receivables Assets or interests therein
from the Borrower or any Subsidiary of the Borrower and finances such Receivables Assets or
interests therein through the issuance of Indebtedness or equity interests or through the sale of
such Receivables Assets or interests therein; provided that (a) the Board of Directors of the
Borrower shall have approved such transaction, (b) no portion of the Indebtedness of a
Securitization Subsidiary is guaranteed by or is recourse to the Borrower or any Subsidiary (other
than recourse for customary representations, warranties, covenants and indemnities, none of which
shall relate to the collectibility of such Receivables Assets), and (c) neither the Borrower nor
any other Subsidiary has any obligation to maintain or preserve such Securitization Subsidiary’s
financial condition.



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



     “Plan” means any defined benefit employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA, Section 412 of the Code or









 



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Section 302 of ERISA in respect of which the Borrower or any ERISA Affiliate is either the
plan sponsor or a contributing employer.




     “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.



     “PUHCA” has the meaning set forth in Section 3.11.



     “Rating Agency” means, each of Moody’s, S&P and Fitch.



     “Receivables Assets” shall mean accounts receivable (including any bills of exchange)
and related assets and property from time to time originated, acquired or otherwise owned by the
Borrower or any Subsidiary.



     “Register” has the meaning set forth in Section 8.04.



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



     “Required Lenders” means, at any time, Lenders having Credit Exposures and unused
Commitments representing more than 50% of the sum of the total Credit Exposures and unused
Commitments at such time.



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



     “SEC” means the United States Securities and Exchange Commission or any successor
thereto.



     “Securitization Subsidiary” shall mean a Subsidiary that is established for the
limited purpose of acquiring and financing Receivables Assets and interests therein of the Borrower
or any Subsidiary and engaging in activities ancillary thereto.



     “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject (a)
with respect to the Base CD Rate, for new negotiable nonpersonal time deposits in dollars of over
$100,000 with maturities approximately equal to three months and (b) with respect to the Adjusted
LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in
Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any









 



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Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall
be adjusted automatically on and as of the effective date of any change in any reserve percentage.




     “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent.



     “Subsidiary” means any subsidiary of the Borrower.



     “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.



     “Three-Month Secondary CD Rate” means, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on such day (or, if such day is not
a Business Day, the next preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at approximately 10:00 a.m., New York
City time, on such day (or, if such day is not a Business Day, on the next preceding Business Day)
by the Administrative Agent from three negotiable certificate of deposit dealers of recognized
standing selected by it.



     “Transactions” means the execution, delivery and performance by the Borrower of this
Agreement, the borrowing of Loans and the use of the proceeds thereof.



     “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.



     “USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, as amended from
time to time.



     “Wholly-Owned Subsidiary” means, for any Person, any Subsidiary of such Person of
which all of the equity securities or other ownership interests (other than in the case of a
corporation, directors’ qualifying shares) are directly or indirectly owned or Controlled by such
Person.









 



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     SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Type (e.g., a “Eurodollar Loan” or “ABR Loan”).
Borrowings also may be classified and referred to by Type (e.g., a “Eurodollar Borrowing”
or “ABR Borrowing”).



     SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.



     SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.



ARTICLE II




The Credits




     SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each
Lender agrees to make Multi-Year Facility Loans to the Borrower from time to time during the
Multi-Year Facility Availability Period in an aggregate principal amount that will not result in (i) such Lender’s
Multi-Year Facility Credit Exposure exceeding such Lender’s Multi-Year Facility Commitment or (ii)
the total Multi-Year Facility Credit Exposures exceeding the total Multi-Year Facility Commitments.
Within the foregoing limits and subject to the terms and









 



- 13 -

conditions set forth herein, the Borrower may borrow, prepay and reborrow Multi-Year Facility Loans.




     SECTION 2.02. Loans and Borrowings. (a) Each Multi-Year Facility Loan shall be made
as part of a Borrowing consisting of Multi-Year Facility Loans made by the Lenders ratably in
accordance with their respective Multi-Year Facility Commitments. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender’s failure to make Loans as required.



     (b) Subject to Section 2.11, each Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request in accordance herewith. Each Lender at its option may
make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this Agreement.



     (c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $5,000,000 and not less than
$10,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $5,000,000 and not less than $10,000,000; provided
that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of
the total Multi-Year Facility Commitments. Borrowings of more than one Type may be outstanding at
the same time; provided that there shall not at any time be more than a total of six
Multi-Year Facility Eurodollar Borrowings outstanding.



     (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing of Multi-Year Facility Loans if the
Interest Period requested with respect thereto would end after the Multi-Year Facility Maturity
Date.



     SECTION 2.03. Requests for Borrowings. To request a Borrowing, the Borrower shall
notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of
the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New York
City time, one Business Day before the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or
facsimile to the Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:




     (i) the aggregate amount of the requested Borrowing;




     (ii) the date of such Borrowing, which shall be a Business Day;




     (iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;









 



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     (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and




     (v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.04.


If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s
duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.




     SECTION 2.04. Funding of Borrowings. (a) Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately available funds by
12:00 noon, New York City time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York City and designated by
the Borrower in the applicable Borrowing Request.



     (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in such Borrowing.



     SECTION 2.05. Interest Elections. (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate Borrowing.









 



- 15 -


     (b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or facsimile to the
Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.



     (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:




     (i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and




     (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.


If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.




     (d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.



     (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall
be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event
of Default has occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i)
no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.



     SECTION 2.06. Termination and Reduction of Commitments. (a) Unless previously
terminated, the Multi-Year Facility Commitments shall terminate on the Multi-Year Facility
Commitment Termination Date.









 



- 16 -


     (b) The Borrower may at any time terminate, or from time to time reduce, each of the
Multi-Year Facility Commitments; provided that (i) each such reduction shall be in an
amount that is an integral multiple of $5,000,000 and not less than $10,000,000 and (ii) the
Borrower shall not terminate or reduce the Multi-Year Facility Commitments if, after giving effect
to any concurrent prepayment of the Loans in accordance with Section 2.08, the aggregate Multi-Year
Facility Credit Exposures would exceed the total Multi-Year Facility Commitments.



     (c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Multi-Year Facility Commitments under paragraph (b) of this Section at least three Business
Days prior to the effective date of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall
advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this
Section shall be irrevocable; provided that a notice of termination of the Multi-Year
Facility Commitments delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be revoked by the Borrower
(by notice to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Multi-Year Facility Commitments
shall be permanent. Each reduction of the Multi-Year Facility Commitments shall be made ratably
among the Lenders in accordance with their respective Multi-Year Facility Commitments.



     SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Multi-Year Facility Loan on the Multi-Year Facility Maturity Date.



     (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.



     (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Type thereof and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder and (iii) the amount of any sum received
by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share
thereof.



     (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this Agreement.



     (e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its









 



- 17 -

registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after assignment pursuant
to Section 8.04) be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).




     SECTION 2.08. Prepayment of Loans. (a) The Borrower shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section and, with respect to Eurodollar Loans, subject to
Section 2.13.



     (b) The Borrower shall notify the Administrative Agent by telephone (confirmed by facsimile)
of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business
Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid;
provided that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Multi-Year Facility Commitments as contemplated by Section 2.06, then such
notice of prepayment may be revoked if such notice of termination is revoked in accordance with
Section 2.06. Promptly following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of
any Borrowing shall be in an amount that would be permitted in the case of an advance of a
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied
by accrued interest to the extent required by Section 2.10.



     SECTION 2.09. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a facility fee, which shall accrue at the Applicable Rate on the daily
amount of the Multi-Year Facility Commitment of such Lender (whether used or unused) during the
period from and including the Effective Date to but excluding the Multi-Year Facility Commitment
Termination Date; provided that, if such Lender continues to have any Multi-Year Facility
Credit Exposure after the Multi-Year Facility Commitment Termination Date, then such facility fee shall
continue to accrue on the daily amount of such Lender’s Multi-Year Facility Credit Exposure from
and including the Multi-Year Facility Commitment Termination Date to but excluding the date on
which such Lender ceases to have any Multi-Year Facility Credit Exposure. Accrued facility fees
shall be payable in arrears on the last day of March, June, September and December of each year and
on the Multi-Year Facility Commitment Termination Date, commencing on the first such date to occur
after the date hereof; provided that any facility fees accruing after the Multi-Year
Facility Commitment Termination Date shall be payable on demand. All such facility 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).



     (b) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.









 



- 18 -


     (c) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent for distribution, in the case of facility fees, to the Lenders. Fees
paid shall not be refundable under any circumstances.



     SECTION 2.10. Interest. (a) The Loans comprising each ABR Borrowing shall bear
interest at the Alternate Base Rate plus the Applicable Rate.



     (b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.



     (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.



     (d) The Borrower hereby unconditionally promises to pay accrued interest on each Loan in
arrears on each Interest Payment Date for such Loan and upon each of the Multi-Year Facility
Commitment Termination Date and the Multi-Year Facility Maturity Date; provided that (i)
interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the
event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan prior to
the end of the Multi-Year Facility Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.



     (e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO
Rate shall be determined by the Administrative Agent, and such determination shall be conclusive
absent manifest error.



     SECTION 2.11. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:




     (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or




     (b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period will not









 



- 19 -



adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in
such Borrowing for such Interest Period;


then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or facsimile as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any
Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR
Borrowing; provided that if the circumstances giving rise to such notice affect only one
Type of Borrowings, then the other Type of Borrowings shall be permitted.




     SECTION 2.12. Increased Costs. (a) If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate); or




     (ii) impose on any Lender or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise) by an amount deemed material by such Lender in its sole
discretion, then the Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.




     (b) If any Lender reasonably determines that any Change in Law regarding capital requirements
has or would have the effect of reducing the rate of return on such Lender’s capital or on the
capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans
made by such Lender to a level below that which such Lender or such Lender’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s policies and the
policies of such Lender’s holding company with respect to capital adequacy), then from time to time
the Borrower will pay to such Lender such additional amount or amounts as will compensate such
Lender or such Lender’s holding company for any such reduction suffered.



     (c) A certificate of a Lender setting forth the amount or amounts (including the basis of the
calculation used to determine such amount or amounts) necessary to compensate such Lender or its
holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.



     (d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender’s right to demand such compensation;









 



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provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of
such Lender’s intention to claim compensation therefor; provided further that, if
the Change in Law giving rise to such increased costs or reductions is retroactive, then the
180-day period referred to above shall be extended to include the period of retroactive effect
thereof.




     SECTION 2.13. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section 2.08(b) and is
revoked in accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.16, then, in any such event, the Borrower shall compensate each Lender for
the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount reasonably determined by
such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would
have been applicable to such Loan, for the period from the date of such event to the last day of
the then current Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been
the Interest Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender would bid were it to
bid, at the commencement of such period, for dollar deposits of a comparable amount and period from
other banks in the eurodollar market. A certificate of any Lender setting forth any amount or
amounts (including the basis of the calculation used to determine such amount or amounts) that such
Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall
be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.



     SECTION 2.14. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender (as the case may be)
receives an amount equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.



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









 



- 21 -


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



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



     (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate.



     (f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by
the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this
Section 2.14, it shall promptly pay over such refund to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this Section 2.14 with
respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such refund);
provided, that the Borrower, upon the request of the Administrative Agent or such Lender,
agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the
event the Administrative Agent or such Lender is required to repay such refund to such Governmental
Authority. This Section shall not be construed to require the Administrative Agent or any Lender
to make available its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.



     SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) The
Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest, fees, or of amounts payable under Section 2.12, 2.13 or 2.14, or otherwise) prior to
12:00 noon, New York City time, on the date when due, in immediately available funds, without
set-off or counterclaim. Any amounts received after such time on any date may, in the discretion
of the Administrative Agent, be deemed to have been received on the next succeeding Business









 



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Day for purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 270 Park Avenue, New York, New York. The Administrative
Agent shall distribute any such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on
a day that is not a Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. All payments hereunder shall be made in dollars.




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



     (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued
interest thereon than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans of other Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The
Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.



     (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not
in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds









 



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Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation.




     (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.04(b) or 2.15(d), then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for
the account of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.



     SECTION 2.16. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.12, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.14, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.12 or
2.14, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.



     (b) If any Lender requests compensation under Section 2.12, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.14, or if any Lender defaults in its obligation to fund Loans hereunder, or
if, in connection with any proposed waiver, amendment, or modification of this Agreement, the
consent of the Required Lenders is obtained but the consent of one or more of such other Lenders
whose consent is requested is not obtained, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in Section
8.04), all its interests, rights and obligations under this Agreement to an assignee that shall
assume such obligations (which assignee may be another Lender, but only if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of
all other amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.12 or payments required to be made pursuant to Section 2.14, such
assignment will result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and
delegation cease to apply.









 



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ARTICLE III




Representations and Warranties




     The Borrower represents and warrants to the Lenders that:



     SECTION 3.01. Corporate Existence. Each of the Borrower and its Material
Subsidiaries: (a) is a corporation, partnership or other entity duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization; (b) has all requisite
corporate power, and has all material Governmental Approvals necessary to own its assets and carry
on its business as now being conducted; and (c) is qualified to do business and is in good standing
in all jurisdictions in which the nature of the business conducted by it makes such qualification
necessary and where failure to so qualify could have a Material Adverse Effect.



     SECTION 3.02. Financial Condition. The Borrower has heretofore furnished to each of
the Lenders the consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at
September 30, 2004 and the related consolidated statement of income and retained earnings and cash
flow of the Borrower and its consolidated Subsidiaries for the fiscal year ended on said date, with
the opinion thereon (in the case of said consolidated balance sheet and statements) of
PricewaterhouseCoopers, and the unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at June 30, 2005 and the related consolidated statement of income, retained earnings and cash
flow of the Borrower and its consolidated Subsidiaries for the nine-month period ended on such
date. All such financial statements are complete and correct in all material respects and fairly
present in all material respects the consolidated financial condition of the Borrower and its
consolidated Subsidiaries (subject, in the case of such financial statements as at June 30, 2005,
to normal year-end audit adjustments), all in accordance with GAAP and practices applied on a
consistent basis. None of the Borrower nor any of its Subsidiaries has on the date hereof any
material contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments, except as referred to or
reflected or provided for in said balance sheets as at said dates. Since September 30, 2004, there
has been no material adverse change. As used herein, the term “material adverse change” shall
mean any event, development or circumstance that has had or could reasonably be expected to have a
material adverse effect on (a) the business, assets, property, condition (financial or otherwise)
or prospects of the Borrower and its Subsidiaries taken as a whole, or (b) the validity or
enforceability of this Agreement or any documentation related to the Loans or the rights and
remedies of the Administrative Agent and the Lenders thereunder; provided that “material adverse
change” shall not include the effect of any event, development or circumstance disclosed in any
document filed pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934 after
September 30, 2004 and prior to the Effective Date to the extent, and only to the extent, such
effect is explicitly disclosed in such filings.



     SECTION 3.03. Litigation. Except as set forth in the Borrower’s Annual Report on SEC
Form 10-K for the year ended September 30, 2004 or in any document subsequently filed pursuant to
Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, there are no legal or arbitral
proceedings, or any proceedings by or before any governmental or regulatory authority or agency,
now pending to which the Borrower or any Material Subsidiary is a party, or pending









 



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or threatened (of which the Borrower has knowledge), in which there is a reasonable possibility of an adverse
decision, which could have a Material Adverse Effect.




     SECTION 3.04. No Breach. None of the execution and delivery of this Agreement, the
consummation of the Transactions or compliance with the terms and provisions hereof will conflict
with or result in a breach of, or require any consent (other than as listed as item 1 on Schedule
3.06, which consent has been obtained and remains in full force and effect) under, the articles of
incorporation or by-laws of the Borrower, or any applicable law or regulation, or, to the best
knowledge of the Borrower, any order, writ, injunction or decree of any court or governmental or
regulatory authority, agency, instrumentality or political subdivision thereof, or any material
agreement or instrument to which the Borrower or any of its Subsidiaries is a party or by which any
of them or any of their property is bound or to which any of them or any of their property is
subject, or constitute a default under any such agreement or instrument.



     SECTION 3.05. Action. The Borrower has all necessary corporate power, authority and legal right to execute,
deliver and perform its obligations under this Agreement; the execution, delivery and performance
by the Borrower of this Agreement have been duly authorized by all necessary corporate action on
its part (including, without limitation, any required shareholder approvals); and this Agreement
has been duly and validly executed and delivered by the Borrower and constitutes its legal, valid
and binding obligation, enforceable against the Borrower in accordance with its terms, except as
such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or
similar laws of general applicability affecting the enforcement of creditors’ rights and (b) the
application of general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).



     SECTION 3.06. Approvals. Except as set forth on Schedule 3.06 hereto (which
Governmental Approvals and any renewals thereof, have been made or obtained and are in full force
and effect) no Governmental Approval and no authorization, approval or consent of, and no filing or
registration with, any securities exchange, is necessary for the execution, delivery or performance
by the Borrower of this Agreement or for the legality, validity or enforceability hereof.



     SECTION 3.07. Use of Credit. Neither the Borrower nor any of its Subsidiaries shall,
directly or indirectly, use any of the proceeds of any extension of credit hereunder for any
purpose, whether immediate, incidental, or ultimate, of buying a “margin stock” or of maintaining,
reducing or retiring any indebtedness originally incurred to purchase a stock that is currently a
“margin stock” and the extension of credit hereunder will not constitute an extension of “purpose
credit” that is directly or indirectly secured by “margin stock”, in each case within the meaning
of Regulation U of the Board of Governors of the United States Federal Reserve System Board (12
C.F.R. 221, as amended), and will not violate or result in the violation of Regulation U or of
Regulation T (12 C.F.R. 220, as amended) or of Regulation X (12 C.F.R. 224, as amended) or any
other regulation of such Board.



     SECTION 3.08. ERISA. Neither a “reportable event” (as defined in Section 4043 of
ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which
the 30-day notice period is waived)) nor an “accumulated funding deficiency” (within the









 



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meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during the six-year period prior to
the date on which this representation is made or deemed made with respect to any Plan and each Plan
has complied in all material respects with the applicable provisions of ERISA and the Code.
Neither the Borrower nor any ERISA Affiliate of the Borrower incurred any liability under Title IV
of ERISA which could reasonably be expected to result in a Material Adverse Effect, and no Lien in
favor of PBGC or a Plan has arisen, during such six-year period. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the last annual valuation date
prior to the date on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accumulated benefit obligations by an amount greater than
the lesser of (i) $250,000,000, (ii) 20% of the Consolidated Net Worth, or (iii) 10% of the
Consolidated Capitalization. Neither the Borrower nor any ERISA Affiliate of the Borrower has made
a filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan. Neither the Borrower nor any
ERISA Affiliate has had a complete or partial withdrawal from any Plan that has resulted or could
reasonably be expected to result in a material liability under ERISA and neither the Borrower nor
any ERISA Affiliate would become subject to any material liability under ERISA if the Borrower or
any such ERISA Affiliate were to withdraw completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which this representation is made or deemed made.
No such Multiemployer Plan is insolvent or in reorganization, within the meaning of Title IV of
ERISA.




     SECTION 3.09. Taxes. Each of the Borrower and each of its Subsidiaries has filed or
caused to be filed all Federal, state and other material tax returns that are required to be filed
and has paid all Taxes shown to be due and payable on such returns or on any assessments made
against it or any of its property and all other Taxes imposed on it or any of its property by any
Governmental Authority (other than any Taxes the amount or validity of which is currently being
contested in good faith by appropriate proceeding and with respect to which reserves in conformity
with GAAP have been provided on the books of the Borrower or its Subsidiaries, as the case may be);
no material Tax Lien has been filed and, to the knowledge of the Borrower, no material claim is
being asserted with respect to any such Tax. The Borrower has not given or been requested to give
a waiver of the statute of limitations relating to the payment of Federal, state, local and foreign
Taxes or other impositions except for (i) the extension, to December 15, 2005, of the statute of
limitations with respect to New York State’s corporate tax audit of Empire State Pipeline, Empire
State Pipeline Company, Inc. (now known as Empire State Pipeline Company, LLC) and St. Clair
Pipeline Company, Inc. (now known as St. Clair Pipeline Company, LLC) for various periods prior to
the Borrower’s acquisition, through subsidiaries, of Empire State Pipeline, Empire State Pipeline
Company, LLC and St. Clair Pipeline Company, LLC and (ii) any extensions that may be granted with
respect to tax audits by the tax authorities of the State of New York and the Commonwealth of
Pennsylvania ongoing as of the date hereof.



     SECTION 3.10. Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an “investment company”, or a company “controlled” by an “investment company”,
within the meaning of the Investment Company Act of 1940, as amended.



     SECTION 3.11. Public Utility Holding Company Act. The Borrower is a “holding company”
registered under the Public Utility Holding Company Act of 1935, as amended









 



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(“PUHCA”). No
Loan made in accordance with this Agreement will violate PUHCA or any rule or regulation
thereunder.




     SECTION 3.12. Environmental Matters. As of the date of this Agreement: (i) each of the Borrower and its Subsidiaries has
obtained all environmental, health and safety permits, licenses and other authorizations required
under all Environmental Laws to carry on its business as now being conducted, except to the extent
failure to have any such permit, license or authorization would not have a Material Adverse Effect;
and (ii) each of such permits, licenses and authorizations is in full force and effect and, to the
knowledge of the Borrower after due inquiry, each of the Borrower and its Subsidiaries is in
compliance with the terms and conditions thereof, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any applicable Environmental Law or in any regulation, code,
plan, order, decree, judgment, injunction, notice or demand letter issued, entered, promulgated or
approved thereunder, except to the extent failure to comply therewith would not have a Material
Adverse Effect.



     SECTION 3.13. Subsidiaries, Etc. The Borrower owns, free and clear of Liens, and has
the unencumbered right to vote, all outstanding ownership interests in each of its Material
Subsidiaries; and all of the issued and outstanding capital stock of each such Material Subsidiary
organized as a corporation is validly issued, fully paid and nonassessable.



     SECTION 3.14. True and Complete Disclosure. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation, preparation or delivery of
this Agreement or included herein or delivered pursuant hereto, when taken as a whole do not
contain any untrue statement of material fact or omit to state any material fact necessary to make
the statements herein or therein, in light of the circumstances under which they were made, not
misleading. All written information furnished after the date hereof by the Borrower and its
Subsidiaries to the Administrative Agent and the Lenders in connection with this Agreement and the
transactions contemplated hereby will be true, complete and accurate in every material respect, or
(in the case of forward-looking statements) based on reasonable estimates, on the date as of which
such information is stated or certified; provided that, in the case of financial projections, no
assurance is given that any results forecasted in any such projections will actually be achieved
or that actual financial results will not differ materially from the results set forth in such
projections.



ARTICLE IV




Conditions




     SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans hereunder
shall not become effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 8.02):




     (a) The Administrative Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such party or
(ii) written evidence satisfactory to the Administrative Agent (which may include









 



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facsimile transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement.




     (b) The Administrative Agent shall have received an opinion, dated as of the Effective
Date, and in form and substance satisfactory to the Administrative Agent and its counsel, of
each of (i) Nixon Peabody LLP, special New York counsel to the Administrative Agent, (ii)
Dewey Ballantine LLP, special New York counsel to the Borrower, (iii) in-house counsel to
the Borrower, and (iv) Stryker, Tams & Dill LLP, special New Jersey counsel to the Borrower.




     (c) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing of the Borrower, the authorization of the Transactions and any
other, legal matters relating to the Borrower, this Agreement or the Transactions, all in
form and substance satisfactory to the Administrative Agent and its counsel.




     (d) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement
or payment of all reasonable fees, charges and disbursements of counsel incurred in
connection with the credit facilities provided under this Agreement and any related
documentation required to be reimbursed or paid by the Borrower hereunder.




     (e) The Administrative Agent shall have received satisfactory evidence that all
Governmental Approvals (including, without limitation, the Governmental Approvals set forth
on Schedule 3.06 hereof) and third-party approvals necessary or, in the discretion of the
Administrative Agent, advisable in connection with the Transactions, the repayment of the
Indebtedness, if any, of the Borrower indicated on Schedule 4.01 and the continuing
operations of the Borrower and its Subsidiaries have been obtained and are in full force and
effect and all applicable waiting periods have expired with respect thereto without any
action being taken or threatened by any Governmental Authority or a third party which would
restrain, prevent or otherwise impose adverse conditions on the Transaction or the repayment
of the Indebtedness, if any, of the Borrower indicated on Schedule 4.01.




     (f) The Administrative Agent and the Lenders shall have received (i) the financial
statements required to be furnished by the Borrower pursuant to Section 3.02 hereof and (ii)
satisfactory unaudited interim consolidated financial statements of the Borrower for each
quarterly period ended subsequent to September 30, 2004.




     (g) The Administrative Agent shall have received satisfactory evidence that the
principal of and interest on, and all other amounts owing in respect of, the Indebtedness of
the Borrower indicated on Schedule 4.01 that is to be repaid shall have been (or shall be
simultaneously) paid in full and that any commitments to extend credit under the agreements
or instruments relating to such Indebtedness shall have been canceled or terminated.









 



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     (h) The representations and warranties of the Borrower set forth in this Agreement
(including, without limitations, the representations and warranties set forth in Section
3.03 and the last two sentences of Section 3.02) shall, as of the Effective Date, be true
and correct in all material respects and no Default shall have occurred and be continuing.


The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions
is satisfied (or waived pursuant to Section 8.02) at or prior to 3:00 p.m., New York City time, on
or before September 30, 2005 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).




     SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, is subject to the satisfaction of the following conditions:




     (a) The representations and warranties of the Borrower set forth in this Agreement
(including, without limitation, the representations and warranties set forth in Section 3.03
but excluding the representations and warranties set forth in the last two sentences of
Section 3.02) shall be true and correct in all material respects on and as of the date of
such Borrowing; provided, however, that upon and after the effectiveness of the repeal of
PUHCA, the parties agree that the representations in Section 3.11 shall cease to be included
in the representations deemed made under this Section 4.02(a) with respect to Borrowings
made after such effectiveness; provided, further, that such representations shall again be
included from and after the date, if any, that such repeal ceases to be effective or PUHCA
is otherwise reinstated.




     (b) At the time of and immediately after giving effect to such Borrowing no Default
shall have occurred and be continuing.


Each Borrowing shall be deemed to constitute a representation and warranty by the Borrower on the
date thereof as to the matters specified in paragraphs (a) and (b) of this Section.




ARTICLE V




Covenants of the Borrower




     The Borrower covenants and agrees with the Lenders and the Administrative Agent that, so long
as any Commitment or Loan is outstanding and until payment in full of all amounts payable by the
Borrower hereunder:



     SECTION 5.01. Financial Statements, Etc.. The Borrower shall deliver to each of the
Lenders:




     (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 of the Borrower, consolidated statements of
income and retained earnings and cash flow of the Borrower and its consolidated Subsidiaries
for such period and for the period from the beginning of the respective fiscal









 



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year to the end of such period, and the related consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such period, setting forth in each case in
comparative form to the extent required by SEC Form 10-Q the corresponding consolidated
figures for the corresponding period in the preceding fiscal year, accompanied by a
certificate of a senior Financial Officer of the Borrower, which certificate shall state
that said consolidated financial statements fairly present in all material respects the
consolidated financial condition and results of operations of the Borrower and its
consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of,
and for, such period (subject to normal year-end audit adjustments);




     (b) as soon as available and in any event within 100 days after the end of each fiscal
year of the Borrower, consolidated statements of income, retained earnings and cash flow of
the Borrower and its consolidated Subsidiaries for such fiscal year and the related
consolidated balance sheets of the Borrower and its consolidated Subsidiaries as at the end
of such fiscal year, setting forth in each case in comparative form the corresponding
consolidated figures for the preceding fiscal year and accompanied by an opinion thereon of
independent certified public accountants of recognized national standing, which opinion
shall state that said consolidated financial statements fairly present in all material
respects the consolidated financial condition and results of operations of the Borrower and
its consolidated Subsidiaries as at the end of, and for, such fiscal year in accordance with
GAAP;




     (c) as soon as available and in any event within 130 days after the end of each fiscal
year of the Borrower, consolidating statements of income, retained earnings and cash flow of
the Borrower and its consolidated Subsidiaries for such fiscal year and the related
consolidating balance sheets of the Borrower and its consolidated Subsidiaries as at the end
of such fiscal year, provided that the Borrower is required to include such financial
statements in a form U5S to be filed with the SEC.




     (d) promptly upon their becoming publicly available (i) copies of all registration
statements and regular periodic reports, if any, which the Borrower shall have filed with
the SEC under the Securities Act of 1933, the Securities Exchange Act of 1934 or any
national securities exchange, (ii) copies of any forms UI or U1A which the Borrower shall
have filed with the SEC under PUHCA relating to the Borrower’s or its Subsidiaries’
financing activities and (iii) upon request of the Administrative Agent or any Lender,
copies of other forms, statements and reports, if any, which the Borrower shall have filed
with the SEC under PUHCA;




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




     (f) as soon as possible, and in any event within 30 days after the Borrower knows or
has reason to believe that one or more of the following events has occurred or exists: (i)
the occurrence of a “reportable event”, as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for which the
30-day notice period is waived); (ii) a failure to make any required contribution to a Plan
or a Multiemployer Plan; (iii) the creation of any Lien in favor of the PBGC or a Plan









 



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or a Multiemployer Plan; (iv) any withdrawal from, or the termination, insolvency or
reorganization of any Multiemployer Plan, or (v) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower, any ERISA Affiliate or any
Multiemployer Plan with respect to the withdrawal from, or the termination, reorganization
or insolvency of, any Plan or a Multiemployer Plan;




     (g) promptly after the Borrower knows or has reason to believe that (i) any Default has
occurred, a notice of such Default describing the same in reasonable detail and, together
with such notice or as soon thereafter as possible, a description of the action that the
Borrower has taken or proposes to take with respect thereto or (ii) at any time that Loans
are outstanding hereunder, there exists a legal or arbitral proceeding, or any proceeding by
or before any governmental or regulatory authority or agency (other than any proceeding
before the New York State Public Service Commission, or comparable authority or agency of
another state, in the ordinary course of Borrower’s business), to which the Borrower or any
Material Subsidiary is a party, or pending or threatened (of which the Borrower has
knowledge), in which there is a reasonable possibility of an adverse decision, which could
reasonably be expected to have a Material Adverse Effect;




     (h) promptly prior to the expiration of any material Governmental Approval, a copy of a
renewal or extension of such Governmental Approval, in form and substance satisfactory to
the Required Lenders;




     (i) promptly upon receipt thereof, a copy of each management letter or memorandum
commenting on internal accounting controls and/or accounting or financial reporting policies
followed by the Borrower and/or any of its Subsidiaries that is submitted to the Borrower by
its independent accountants in connection with any annual or interim audit made by them of
the books of Borrower or any of its Subsidiaries; and




     (j) from time to time, such other information regarding the financial condition,
operations, business or prospects of the Borrower (including any change in the ratings
established by any Rating Agency with respect to the Index Debt) or any of its Subsidiaries
(including, without limitation, any Plan or Multiemployer Plan and any reports or other
information required to be filed under ERISA) as any Lender or the Administrative Agent may
reasonably request.



     The Borrower will furnish to each Lender, at the time it furnishes each set of financial
statements pursuant to paragraph (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) to the effect that no Default has occurred and is continuing (or, if any Default has
occurred and is continuing, describing the same in reasonable detail and describing the action that
the Borrower has taken or proposes to take with respect thereto), and (ii) setting forth the
calculations required to demonstrate that, as of the end of the fiscal quarter most recently
ended, the Borrower is in compliance with Section 5.07 of this Agreement.



     SECTION 5.02. Existence, Etc.. The Borrower will, and will cause each of its Material
Subsidiaries to:









 



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     (a) preserve and maintain its legal existence and all of its material (i) rights, (ii)
privileges, (iii) licenses and (iv) franchises (provided that nothing in this
Section 5.02 shall prohibit any transaction expressly permitted under Section 5.04 hereof);




     (b) comply with the requirements of all applicable laws, rules, regulations and orders
of any Governmental Authority if failure to comply with such requirements could have a
Material Adverse Effect;




     (c) pay and discharge all Taxes imposed on it or on its income or profits or on any of
its property prior to the date on which penalties attach thereto, except for any such Tax
the payment of which is being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained;




     (d) maintain all of its properties used or useful in its business in good working order
and condition, ordinary wear and tear excepted;




     (e) keep adequate records and books of account, in which complete entries will be made
in accordance with GAAP consistently applied; and




     (f) permit representatives of any Lender or the Administrative Agent, during normal
business hours, to examine, copy and make extracts from its books and records, to inspect
any of its properties, and to discuss its business and affairs with its officers, all to the
extent reasonably requested by such Lender or the Administrative Agent (as the case may be).



     SECTION 5.03. Insurance. The Borrower will, and will cause each of its Material
Subsidiaries to, keep insured by financially sound and reputable insurers all property of a
character usually insured by corporations engaged in the same or similar business similarly
situated against loss or damage of the kinds and in the amounts customarily insured against by such
corporations and carry such other insurance as is usually carried by such corporations.



     SECTION 5.04. Prohibition of Fundamental Changes. The Borrower will not, nor will it
permit any of its Material Subsidiaries to, enter into any transaction of merger or consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution). The Borrower will not amend its articles of incorporation, including, without
limitation, by way of reincorporation in another jurisdiction, or its by-laws, in either case in
any manner which could have a material adverse effect on the rights of, or remedies or benefits
available to, the Administrative Agent and the Lenders under this
Agreement. The Borrower will not, nor will it permit any of its Material Subsidiaries to,
without the consent of the Required Lenders (such consent not to be unreasonably withheld), convey,
sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all
or any material part of its business or property, whether now owned or hereafter acquired.
Notwithstanding the foregoing provisions of this Section 5.04:




     (a) any Material Subsidiary of the Borrower may be merged or consolidated with or into:
(i) the Borrower, if the Borrower shall be the continuing or surviving corporation or (ii)
any other Wholly-Owned Subsidiary of the Borrower, provided that the Wholly-Owned
Subsidiary shall be the continuing or surviving corporation; and,









 



- 33 -



provided, further, that, in each case, after giving effect thereto, no Default would exist hereunder;




     (b) any Material Subsidiary may sell, lease, transfer or otherwise dispose of any or
all of its property (upon voluntary liquidation or otherwise) to the Borrower or a
Wholly-Owned Subsidiary of the Borrower;




     (c) the Borrower may merge or consolidate with or into any other Person if the Borrower
is the continuing or surviving corporation and after giving effect thereto no Default would
exist hereunder; and




     (d) the Borrower or any Material Subsidiary may implement a Permitted Receivables
Financing and, solely as part of such program, may sell or subject to lien not more than
$100,000,000 of its assets in the aggregate.



     SECTION 5.05. Limitation on Liens. The Borrower will not pledge, mortgage,
hypothecate, or permit any other Lien upon, any property or assets at any time owned by it, without
making effective provision whereby the obligations of the Borrower to pay the principal of and
interest on the Loans and all other amounts payable hereunder shall be equally and ratably secured
with the obligations secured by such Lien and with any other obligations (collectively, the
“Other Obligations”) similarly entitled by their terms to be equally and ratably secured;
provided that this restriction shall not apply to or prevent:




     (a) the mortgaging, pledging, or establishing a Lien on, any property to secure
Indebtedness of the Borrower as part of the purchase price of such property, or the
extension, renewal or refunding of any such mortgage, pledge or Lien, on substantially the
same property theretofore subject thereto or on any part thereof;




     (b) the acquisition by the Borrower of any property subject to mortgages, pledges or
Liens existing thereon at the time of acquisition (whether or not the obligations secured
thereby are assumed by the Borrower), and the extension, renewal or refunding of any such
mortgage, pledge or Lien, on substantially the same property theretofore subject thereto or
on any part thereof;




     (c) the pledging of its assets or security for the payment of any Tax demanded from the
Borrower by any public body so long as the Borrower in good faith is contesting
its liability to pay the same, or as security to be deposited with any State Insurance
Department or similar public body in order to entitle the Borrower to maintain self
insurance under, or participate under any State insurance fund provided for under any
legislation designed to insure employees of the Borrower against injury or occupational
diseases or for any other purpose at any time required by law or governmental regulation as
a condition to the transaction of any business or the exercise of any privilege or license;




     (d) the pledging by the Borrower of up to 5% of its total assets (as defined under
GAAP) for the purpose of securing a stay or discharge in the course of any legal proceeding
to which the Borrower is a party; or









 



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     (e) the transaction described in Section 5.04(d), provided that any Lien
relating to the Permitted Receivables Financing referred to therein shall be subject to the
limitations in such Section 5.04(d).


but in no event shall the mortgage, pledge or Lien permitted by subdivisions (a) and (b) be in
excess of 60% of the total purchase price of the property so acquired.




     In case the Borrower shall propose to pledge, mortgage or hypothecate any assets or property
at any time owned by it to secure any Other Obligations, other than as permitted by the preceding
paragraph of this Section 5.05, it will prior thereto give notice thereof to the Administrative
Agent, and will prior to or simultaneously with such pledge, mortgage or hypothecation, by an
agreement, indenture or other instrument to which the Administrative Agent is a party (or to the
extent legally necessary, with a trustee), in form and substance reasonably satisfactory to the
Administrative Agent, effectively secure the obligations of the Borrower to pay the principal of
and interest on the Loans and all other amounts payable hereunder equally and ratably with such
Other Obligations by pledge, mortgage or hypothecation of such assets or property. Such agreement,
indenture or other instrument shall contain such provisions as the Borrower and the Required
Lenders shall deem advisable or appropriate or as the Required Lenders shall reasonably deem
necessary in connection with such pledge, mortgage or hypothecation.



     SECTION 5.06. Use of Proceeds. The Borrower will use the proceeds of the Loans
hereunder solely (a) to pay its obligations under (i) its commercial paper program, (ii) other
short-term credit facilities and (iii) maturing long-term debt obligations and (b) for the general
corporate purposes of the Borrower and its Subsidiaries in the ordinary course of business (in
compliance with all applicable legal and regulatory requirements); provided that neither
the Administrative Agent nor any Lender shall have any responsibility as to the use of any of such
proceeds.



     SECTION 5.07. Financial Condition. The Borrower shall not permit the ratio of
Consolidated Indebtedness to Consolidated Capitalization as at the last day of any fiscal quarter
to exceed 0.65 to 1.0.



ARTICLE VI




Events of Default




     If one or more of the following events (herein called “Events of Default”) shall occur
and be continuing:




     (a) The Borrower shall: (i) default in the payment of any principal of any Loan when
due (whether at stated maturity or at mandatory or optional prepayment); or (ii) default in
the payment of any interest on any Loan, any fee or any other amount payable by it hereunder
when due and such default shall have continued unremedied for five or more days; or



     (b) The Borrower or any of its Material Subsidiaries shall default in the payment when
due of any principal of or interest on any of its other Indebtedness









 



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aggregating $20,000,000
or more; or any event specified in any note, agreement, indenture or other document
evidencing or relating to any such Indebtedness shall occur if the effect of such event is
to cause, or (with the giving of any notice or the lapse of time or both) to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid in full (whether by
redemption, purchase, offer to purchase or otherwise), prior to its stated maturity; or




     (c) Any representation, warranty or certification made or deemed made herein (or in any
modification or supplement hereto) by the Borrower, or any certificate furnished to any
Lender or the Administrative Agent pursuant to the provisions hereof, shall prove to have
been false or misleading as of the time made or furnished in any material respect; or




     (d) The Borrower shall default in the performance of any of its obligations under any
of Sections 5.01(g), 5.03, 5.04, 5.05 or 5.07 hereof; or the Borrower shall default in the
performance of any of its other obligations in this Agreement and such default shall
continue unremedied for a period of 30 days after notice thereof to the Borrower by the
Administrative Agent or any Lender (through the Administrative Agent); or




     (e) The Borrower or any of its Material Subsidiaries shall admit in writing its
inability to, or be generally unable to, pay its debts as such debts become due; or




     (f) The Borrower or any of its Material Subsidiaries shall (i) apply for or consent to
the appointment of, or the taking of possession by, a receiver, custodian, trustee, examiner
or liquidator of itself or of all or a substantial part of its property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a voluntary case under the
Bankruptcy Code, (iv) file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement or winding-up,
or composition or readjustment of debts, (v) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the Bankruptcy Code or (vi) take any
corporate action for the purpose of effecting any of the foregoing; or




     (g) A proceeding or case shall be commenced, without the application or consent of the
Borrower or any of its Material Subsidiaries, in any court of competent jurisdiction,
seeking (i) its reorganization, liquidation, dissolution, arrangement or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a receiver, custodian,
trustee, examiner, liquidator or the like of the Borrower or such Subsidiary or of all or
any substantial part of its property, or (iii) similar relief in respect of the Borrower or
such Subsidiary under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such proceeding or case shall
continue undismissed, or an order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect, for a period of 60 or more
days; or an order for relief against the Borrower or such Subsidiary shall be entered in an
involuntary case under the Bankruptcy Code; or









 



- 36 -



     (h) A final judgment or judgments for the payment of money in excess of $5,000,000 in
the aggregate (exclusive of judgment amounts fully covered by insurance where the insurer
has admitted liability in respect of such judgment) or in excess of $10,000,000 in the
aggregate (regardless of insurance coverage) shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against the Borrower or any of
its Material Subsidiaries and the same shall not be discharged (or provision shall not be
made for such discharge), or a stay of execution thereof shall not be procured, within 30
days from the date of entry thereof and the Borrower or the relevant Subsidiary shall not,
within said period of 30 days, or such longer period during which execution of the same
shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during
such appeal; or




     (i) One of the following events shall occur: (i) any Person shall engage in any
“prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan; (ii) any “accumulated funding deficiency” (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of
the PBGC or a Plan shall arise on the assets of the Borrower or any ERISA Affiliate; (iii) a
“reportable event” (as defined in Section 4043 of ERISA or the regulations issued thereunder
(other than an event for which the 30-day notice period is waived)) shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Plan which “reportable event” or commencement
of proceedings or appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA;
(iv) any Plan shall terminate for purposes of Title IV of ERISA; (v) the Borrower or any
ERISA Affiliate shall, or in the reasonable opinion of the Required Lenders is likely to,
incur any liability in connection with a withdrawal from, or the insolvency or
reorganization of, a Multiemployer Plan; (vi) the Borrower or any ERISA Affiliate shall make
a filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; or (vii) any other
event or condition shall occur or exist with respect to a Plan; and, in each case in clauses
(i) through (vii) above, such event or condition, together with all other such events or conditions, if any, could, in the
sole judgment of Lenders having Credit Exposures and unused Commitments representing at
least 66 2/3% of the sum of the total Credit Exposures and unused Commitments at such time
reasonably be expected to have a Material Adverse Effect;



     THEREUPON: (1) in the case of an Event of Default other than one referred to in clause (f) or
(g) of this Article VI with respect to the Borrower, (A) the Administrative Agent may and, upon
request of the Required Lenders, shall, by notice to the Borrower, terminate the Commitments and
they shall thereupon terminate, and (B) the Administrative Agent may and, upon request of the
Required Lenders, shall, by notice to the Borrower, declare the principal amount then outstanding
of, and the accrued interest on, the Loans and all other amounts payable by the Borrower hereunder
(including, without limitation, any amounts payable under Section 2.13 hereof) to be forthwith due
and payable, whereupon such amounts shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are hereby expressly waived by the
Borrower; and (2) in the case of the occurrence of an Event of Default referred to in clause (f) or
(g) of this Article VI with respect to









 



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the Borrower, the Commitments shall automatically be
terminated and the principal amount then outstanding of, and the accrued interest on, the Loans and
all other amounts payable by the Borrower hereunder (including, without limitation, any amounts
payable under Section 2.13 hereof) shall automatically become immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of which are hereby expressly
waived by the Borrower.




ARTICLE VII




The Administrative Agent




     Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.



     The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.



     The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 8.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 8.02) or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this Agreement, (ii) the
contents of any certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.









 



- 38 -


     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.



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



     Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and
become vested with all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent’s resignation hereunder,
the provisions of this Article and Section 8.03 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of
any actions taken or omitted to be taken by any of them while it was acting as Administrative
Agent.



     Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder.









 



- 39 -


     Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates,
participants or assignees, may rely on the Administrative Agent to carry out such Lender’s,
Affiliate’s, participant’s or assignee’s customer identification program, or other obligations
required or imposed under or pursuant to the USA Patriot Act or the regulations thereunder,
including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP
Regulations”), or any other Anti-Terrorism Law, including any programs involving any of the
following items relating to or in connection with the Borrower or any of its Subsidiaries, any of
their respective Affiliates or agents, this Agreement, the documents delivered pursuant hereto or
the transactions hereunder: (a) any identity verification procedures, (b) any record keeping, (c)
any comparisons with government lists, (d) any customer notices or (e) any other procedures
required under the CIP Regulations or such other laws.



     Each Lender or assignee or participant of a Lender that is not organized under the laws of the
United States of America or a state thereof (and is not excepted from the certification requirement
contained in Section 313 of the USA Patriot Act and the applicable regulations because it is both
(a) an affiliate of a depository institution or foreign bank that maintains a physical presence in
the United States or foreign country, and (b) subject to supervision by a banking authority
regulating such affiliated depository institution or foreign bank) shall deliver to the
Administrative Agent the certification, or, if applicable, recertification, certifying that such
Lender is not a “shell” and certifying to other matters as required by Section 313 of the USA
Patriot Act and the applicable regulations: (i) within ten (10) days after the Effective Date, and
(ii) at such other times as are required under the USA Patriot Act.



     Any Lender identified herein as a Co-Agent, Syndication Agent, Documentation Agent, Managing
Agent, Manager, Lead Arranger, Arranger or any other corresponding title, other than
“Administrative Agent,” shall have no right, power, obligation, liability, responsibility or duty
under this Agreement or any other Credit Document except those applicable to all Lenders as such.
Each Lender acknowledges that it has not relied, and will not rely, on any Lender so identified in
deciding to enter into this Agreement or in taking or not taking any action hereunder.



ARTICLE VIII




Miscellaneous




     SECTION 8.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows:




     (i) if to the Borrower, to it at 6363 Main Street, Williamsville, New York 14221-5887,
Attention of Ronald J. Tanski, Treasurer (Facsimile No. (716) 857-7856);









 



- 40 -



     (ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency
Services Group, One Chase Manhattan Plaza, 8th Floor, New York, New York 10081, Attention of
Frank Giacalone (Facsimile No. (212) 552-5650), with a copy to JPMorgan Chase Bank, N.A.,
2300 Main Place Tower, Buffalo, New York 14202, Attention of Thomas C. Lillis, Senior Vice
President (Facsimile No. (716) 843-4939); and




     (iii) if to any other Lender, to it at its address (or facsimile number) set forth in
its Administrative Questionnaire.



     (b) Notices and other communications (including, without limitation, financial statements and
other documents delivered pursuant to Section 5.01 hereof) to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices pursuant to
Article II unless otherwise agreed by the Administrative Agent and the applicable Lender. The
Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices or
communications.



     (c) Any party hereto may change its address or facsimile number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.



     SECTION 8.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent or any Lender in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent and the Lenders hereunder are
cumulative and are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom
shall in any event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the foregoing, the making of a
Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative
Agent or any Lender may have had notice or knowledge of such Default at the time.



     (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Multi-Year Facility Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan
or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan, or any interest thereon, or any fees payable









 



- 41 -

hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of the
Multi-Year Facility Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.15(b) or (c) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, or (v) change any of the provisions
of this Section or the definition of “Required Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make
any determination or grant any consent hereunder, without the written consent of each Lender;
provided further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent hereunder without the prior written consent of the
Administrative Agent.




     SECTION 8.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all
reasonable fees, charges and disbursements of counsel incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in the course of preparing for the Transactions (including the preparation of
this Agreement and any related documentation), (ii) all reasonable out-of-pocket expenses incurred
by the Administrative Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the administration of
this Agreement or any amendments, modifications or waivers of the provisions hereof (whether or not
the transactions contemplated hereby or thereby shall be consummated) and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent or any Lender, including the reasonable
fees, charges and disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made hereunder, including
all such reasonable out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.



     (b) The Borrower shall indemnify the Administrative Agent and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument contemplated hereby, the
performance by the parties hereto of their respective obligations hereunder or the consummation of
the Transactions or any other transactions contemplated hereby, (ii) any Loan or the use of the
proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or
from any property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses are determined by a court or other Governmental Authority of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or willful misconduct
of such Indemnitee.









 



- 42 -


     (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent under paragraph (a) or (b) of this Section, each Lender severally agrees to
pay to the Administrative Agent such Lender’s Applicable Percentage (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent
in its capacity as such.



     (d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.



     (e) All amounts due under this Section shall be payable promptly after written demand
therefor.



     SECTION 8.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer, by
operation of law or otherwise, any of its rights or obligations hereunder without the prior written
consent of each Lender (and any such attempted assignment or transfer by the Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants (to the extent provided in
paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.



     (b)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Multi-Year Facility Commitment and the Loans at the time owing
to it) with the prior written consent (such consent not to be unreasonably withheld) of:




     (A) the Borrower, provided that no consent of the Borrower shall be required for an
assignment to a Lender, an Affiliate of a Lender, an Approved Fund (as defined below) or, if
an Event of Default under clause (f) or (g) of Article VI has occurred and is continuing,
any other assignee; and




     (B) the Administrative Agent, provided that no consent of the Administrative Agent
shall be required for an assignment to an assignee that is a Lender immediately prior to
giving effect to such assignment.



     (ii) Assignments shall be subject to the following additional conditions:




     (A) 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 Multi-Year









 



- 43 -



Facility Commitment, the amount of the Multi-Year Facility Commitment, as the case may be, of the
assigning Lender subject to each such assignment (determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the Administrative Agent)
shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, provided that no such consent of the Borrower shall be required
if an Event of Default under clause (a), (f) or (g) of Article VI has occurred and is
continuing;




     (B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement;




     (C) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500;




     (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire; and




     (E) in the case of an assignment to a CLO (as defined below), the assigning Lender
shall retain the sole right to approve any amendment, modification or waiver of any
provision of this Agreement, provided that the Assignment and Assumption between such Lender
and such CLO may provide that such Lender will not, without the consent of such CLO, agree
to any amendment, modification or waiver described in the first proviso to Section 8.02(b)
that affects such CLO.



     For the purposes of this Section 8.04(b), the terms “Approved Fund” and “CLO” have the
following meanings:




     “Approved Fund” means (a) a CLO and (b) with respect to any Lender that is a
fund which invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.




     “CLO” means any entity (whether a corporation, partnership, trust or otherwise)
that is engaged in making, purchasing, holding or otherwise investing in bank loans and
similar extensions of credit in the ordinary course of its business and is administered or
managed by a Lender or an Affiliate of such Lender.




     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.14 and 8.03).
Any assignment or transfer by a Lender of rights or









 



- 44 -



obligations under this Agreement that
does not comply with this Section 8.04 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
paragraph (c) of this Section.




     (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Multi-Year Facility Commitment of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.




     (v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.



     (c)(i) Any Lender may, without the consent of the Borrower 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 obligations under this Agreement (including all or a portion of its
Multi-Year Facility Commitment and the Loans owing to it); provided, that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that
such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, modification or waiver described in the first proviso to Section 8.02(b) that
affects such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 to the same
extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section. To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 8.08 as though it were a Lender, provided such Participant agrees to be subject
to Section 2.15(c) as though it were a Lender.




     (ii) A Participant shall not be entitled to receive any greater payment under Section
2.12 or 2.14 than the applicable Lender would have been entitled to receive with









 



- 45 -



respect to the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent. A Participant that would be
a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.14
unless the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section 2.14(e) as
though it were a Lender.



     (d) 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, and this Section shall not apply to any
such pledge or assignment of a security interest; 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 8.05. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid and the
Multi-Year Facility Commitments have not expired or terminated. The provisions of Sections
2.12, 2.13, 2.14 and 8.03 and Article VII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans
and the termination of the Multi-Year Facility Commitments or of this Agreement or any provision
hereof.



     SECTION 8.06. Counterparts: Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof, including, without limitation, the commitment letter dated
July 8, 2005, subject to paragraph 14 thereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by facsimile shall be effective as
delivery of a manually executed counterpart of this Agreement.



     SECTION 8.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and









 



- 46 -

enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.




     SECTION 8.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against
any of and all the obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of setoff) which such
Lender may have.



     SECTION 8.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This Agreement shall be construed in accordance with and governed by the law of the
State of New York without giving effect to the principles of conflicts of law thereof (other than
Section 5-1401 of the New York General Obligations Law).



     (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Borrower or its properties in the courts of any jurisdiction.



     (c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.



     (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 8.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.



     SECTION 8.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR









 



- 47 -

INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.




     SECTION 8.11. Headings. Article and Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.



     SECTION 8.12. Confidentiality. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to a written agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the
extent such Information (i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent or any Lender on a nonconfidential
basis from a source other than the Borrower. For the purposes of this Section, “Information” means
all information received from the Borrower relating to the Borrower or its business, other than any
such information that is available to the Administrative Agent or any Lender on a nonconfidential
basis (and otherwise not clearly marked as confidential) prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the date hereof,
such information is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.









 



S-1


     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	NATIONAL FUEL GAS COMPANY

 	 
	 	By:  	/s/ R. J. Tanski
 	 
	 	 	Name:  	R. J. Tanski 	 
	 	 	Title:  	Treasurer 	 









 



S-2

	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

  as Administrative Agent

 	 
	 	By:  	/s/ Thomas C. Lillis
 	 
	 	 	Name:  	Thomas C. Lillis 	 
	 	 	Title:  	Senior Vice President 	 










 



S-3

	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

  as Lender

 	 
	 	By:  	/s/ Thomas C. Lillis
 	 
	 	 	Name:  	Thomas C. Lillis 	 
	 	 	Title:  	Senior Vice President 	 










 



S-4

	 	 	 	 	 



	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION,

  as Lender

 	 
	 	By:  	/s/ John G. Tierney
 	 
	 	 	Name:  	John G. Tierney 	 
	 	 	Title:  	Vice President 	 










 



S-5

	 	 	 	 	 



	 	 	 	 	 
	 	MANUFACTURERS AND TRADERS TRUST COMPANY,

  as Lender

 	 
	 	By:  	/s/ Susan Freed-Oestreicher
 	 
	 	 	Name:  	Susan Freed-Oestreicher 	 
	 	 	Title:  	Vice President 	 










 



S-6

	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF TOKYO-MITSUBISHI TRUST COMPANY,

  as Lender

 	 
	 	By:  	/s/ James A. Profesta
 	 
	 	 	Name:  	James A. Profesta 	 
	 	 	Title:  	Assistant Vice President 	 










 



S-7

	 	 	 	 	 



	 	 	 	 	 
	 	THE NORTHERN TRUST COMPANY,

  as Lender

 	 
	 	By:  	/s/ Chris McKean
 	 
	 	 	Name:  	Chris McKean 	 
	 	 	Title:  	Vice President 	 










 



S-8

	 	 	 	 	 



	 	 	 	 	 
	 	NATIONAL CITY BANK OF PENNSYLVANIA,

  as Lender

 	 
	 	By:  	/s/ William A. Feldmann
 	 
	 	 	Name:  	William A. Feldmann 	 
	 	 	Title:  	Vice President 	 










 



S-9

	 	 	 	 	 



	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION,

  as Lender

 	 
	 	By:  	/s/ James F. Stevenson
 	 
	 	 	Name:  	James F. Stevenson 	 
	 	 	Title:  	Vice President 	 










 



S-10

	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

  as Lender

 	 
	 	By:  	/s/
Colleen O’Brien
 	 
	 	 	Name:  	Colleen O’Brien 	 
	 	 	Title:  	Vice President 	 










 



S-11

	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK,

  as Lender

 	 
	 	By:  	/s/ John N. Watt
 	 
	 	 	Name:  	John N. Watt 	 
	 	 	Title:  	Vice President 	 










 



 

	 	 	 	 	 




SCHEDULE 2.01




COMMITMENTS




	 	 	 	 	 
	 	 	Multi-Year	 
	 	 	Facility	 
	Institution	 	Commitment	 
	JPMorgan Chase Bank, N.A.
	 	$	45,000,000.00	 
	 
	HSBC Bank USA, National Association
	 	$	45,000,000.00	 
	 
	Manufacturers and Traders Trust Company
	 	$	45,000,000.00	 
	 
	Bank of Tokyo-Mitsubishi Trust Company
	 	$	40,000,000.00	 
	 
	The Northern Trust Company
	 	$	25,000,000.00	 
	 
	National City Bank of Pennsylvania
	 	$	25,000,000.00	 
	 
	PNC Bank, National Association
	 	$	25,000,000.00	 
	 
	Bank of America, N.A.
	 	$	25,000,000.00	 
	 
	The Bank of New York
	 	$	25,000,000.00	 
	 
	 	 	 
	 
	TOTAL
	 	$	300,000,000.00	 












 



 


SCHEDULE 3.06




GOVERNMENTAL APPROVALS





	1	 	SEC Financing Order (SEC Rel. No. 35-27600), subject to the information in paragraph 2
of this Schedule 3.06.
	 
	2	 	Section 1271 of the Energy Policy Act of 2005 (the “Energy Policy Act”) provides that
nothing in Subtitle F of Title XII of the Energy Policy Act, or otherwise in PUHCA, or
rules, regulations, or orders thereunder, prohibits a person from engaging in or continuing
to engage in activities or transactions in which it is legally engaged or authorized to
engage on the date of enactment of the Energy Policy Act, if that person continues to
comply with the terms (other than an expiration date or termination date) of any such
authorization, whether by rule or by order. Upon the effective date of the repeal of
PUHCA, the Governmental Approval set forth above will not be necessary for the performance
by the Borrower of this Agreement or for the legality, validity or enforceability thereof.










 



 







SCHEDULE 4.01




REPAID INDEBTEDNESS





	1.	 	Indebtedness of the Borrower under the Credit Agreement dated as of September 30, 2002 among
the Borrower, JP Morgan Chase Bank, as Administrative Agent, and the Lenders party thereto (as
amended).










 



 







EXHIBIT A




[ASSIGNMENT AND ASSUMPTION]




     Reference is made to the Credit Agreement dated as of August 19, 2005 (as amended and in
effect on the date hereof, the “Credit Agreement”), among National Gas Fuel Company, the
Lenders named therein and JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders.
Terms defined in the Credit Agreement are used herein with the same meanings.



     The Assignor named below hereby sells and assigns, without recourse, to the Assignee named
below, and the Assignee hereby purchases and assumes, without recourse, from the Assignor,
effective as of the Assignment Date set forth below, the interests set forth below (the
“Assigned Interest”) in the Assignor’s rights and obligations under the Credit Agreement,
including, without limitation, the interests set forth below in the Multi-Year Facility Commitment
of the Assignor on the Assignment Date and Multi-Year Facility Loans owing to the Assignor which
are outstanding on the Assignment Date, but excluding accrued interest and fees to and excluding
the Assignment Date. The Assignee hereby acknowledges receipt of a copy of the Credit Agreement.
From and after the Assignment Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the Assigned Interest, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of the Assigned
Interest, relinquish its rights and be released from its obligations under the Credit Agreement.



     This Assignment and Assumption is being delivered to the Administrative Agent together with
(i) if the Assignee is a Foreign Lender, any documentation required to be delivered by the Assignee
pursuant to Section 2.14(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed by the Assignee.
The [Assignee/Assignor] shall pay the fee payable to the Administrative Agent pursuant to Section
8.04(b) of the Credit Agreement.



     This Assignment and Assumption shall be governed by and construed in accordance with the laws
of the State of New York.


Date of Assignment:



Legal Name of Assignor:



Legal Name of Assignee:



Assignee’s Address for Notices:




Effective Date of Assignment

(“Assignment Date”):










 



B-2


	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage Assigned	 
	 	 	 	 	 	 	of Loan/Commitment	 
	 	 	 	 	 	 	(set forth, to at least 8 decimals, as a	 
	 	 	 	 	 	 	percentage of the	 
	 	 	 	 	 	 	Loan and the	 
	 	 	 	 	 	 	aggregate	 
	 	 	Principal Amount	 	 	Commitments of all	 
	Facility	 	Assigned	 	 	Lenders thereunder)	 
	Multi-Year Facility Commitment
Assigned:
	 	$	 	 	 	 	%	 
	Multi-Year Facility Loans
	 	 	 	 	 	 	 	 





The terms set forth above are hereby agreed to:




	 	 	 	 	 	 	 
	 	 	[Name of Assignor],	 	 
	 

	 	 	 	as Assignor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[Name of Assignee],	 	 
	 

	 	 	 	as Assignee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 





The undersigned hereby consent to the within assignment:1




	 	 	 	 	 	 	 	 	 	 	 
	National Fuel Gas Company	 	 	 	 	 	JPMorgan Chase Bank, N.A.,	 	 
	 

	 	 	 	 	 	 	 	     as Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 

Name:
	 	 	 	 	 	 

Name:
	 	 
	 

	 	Title:
	 	 	 	 	 	Title:	 	 








 




			
	1	 	Consents to be included to the extent required by Section 8.04(b) of the Credit Agreement.